Clarion Call for Consistent Statute Interpretation

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Case commented on: Piikani Energy Corporation (Re), 2013 ABCA 293, rev’g 2012 ABQB 187

This Alberta Court of Appeal decision (per Justices Frans Slatter, Patricia Rowbotham, and Barbara Lea Veldhuis) came to my attention as a preferences case under section 95 of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”). The weightiness of the analysis reversing Justice R.A. Graesser’s conclusion of a “non-arm’s length” relationship between the debtor corporation Piikani Energy Corporation and the two payees 607385 Alberta Ltd. (“607”) and Dale McMullen made the insolvency and preferences issues irrelevant.

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Defining “Employment” Continues to be a Challenge—Even Outside of the Human Rights Process

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Cases commented on: Van Lent v Place, 2013 ABQB 494; Lovely v Prestige Travel Ltd., 2013 ABQB 467

Some previous posts on ABlawg (see, for example here) have addressed the narrowing of the definitions of “employee” and “employment”, particularly in Alberta human rights cases, and the implications of these decisions. Two recent decisions outside of the human rights realm demonstrate both the importance and implications of finding an “employment” relationship.

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The Smoking Gun Revealed: Alberta Environment Denies Environmental Groups Who Oppose Oil Sands Projects the Right to Participate in the Decision-Making Process

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Cases Considered: Pembina Institute v Alberta (Environment and Sustainable Resource Development), 2013 ABQB 567

This decision by Justice Marceau exposes the very disconcerting trend in Alberta of public officials – in particular those with Alberta Environment – opposing the participation of environmental groups in resources and environmental decision-making. Think about this for a minute. Public officials who work on behalf of Albertans and are paid with public funds actively, and in some cases aggressively, oppose participation by organized members of the public seeking input into how public resources are allocated and developed. To be sure, there is something terribly amiss within the corridors of Alberta Environment. The Pembina Institute and the Fort McMurray Environmental Association have served Albertans generally in bringing attention to this by defending their right to participate in the decision-making process concerning a SAGD (Steam Assisted Gravity Drainage) oil sands project along the MacKay River.

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The United States Wants a New Columbia River Treaty, What Should Canada Do?

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Documents commented on: (1) The Columbia River Treaty and Protocol, 1964 and (2) Columbia River Treaty Review, Draft Regional Recommendation, September 20, 2013 available here

Interesting times lie ahead for the Columbia River Treaty (CRT) of 1964 between Canada and the United States. The CRT provides for the cooperative development of the upper Columbia River and the Kootenay River for two purposes, flood control and power. Under the terms of the treaty Canada agreed to build and operate three dams: Duncan, Mica and Arrow/Keenleyside. The treaty also authorized the United States to construct Libby dam on the Kootenay River in the United States. Libby dam created Lake Koocanusa (Kootenay/Canada/USA) which backs up into British Columbia (hence the need for treaty authorization). In return for all of this, Canada received a $64 million dollar lump sum payment for the first sixty years of flood control offered by the Canadian dams, and 50% of the incremental power and capacity made available at US mainstem dams as a result of the new storage. The mainstem dams are existing dams on the Columbia, some owned by the US federal government (e.g. Grand Coulee and Chief Joseph), and some owned by public utility districts (e.g. Wells, Rocky Reach, Rock Island, Wanapum and Priest Rapids). The Canadian storage improved the efficiency of these dams by firming up capacity (i.e. providing stored water when installed generation would otherwise be running at less than full capacity) and storing water when the same dams might otherwise be spilling water. These power benefits currently have an average annual value of about $202 million. Canada/British Columbia also receives other benefits from the treaty facilities including local flood control (for communities like Trail and Castlegar) and on site generation at Mica, Revelstoke (not a treaty dam, but a facility which benefits from the regulation provided by Mica) and Keenleyside. For maps of the basin and dam locations and more information about the treaty see the website of the Columbia Basin Trust here.

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Ontario Court of Appeal Confirms that the Courts Have Some Residual Jurisdiction Over Natural Gas Storage Matters

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Case Commented On: 2195002 Ont. Inc. v Tribute Resources Inc, 2013 ONCA 576

In this decision the Ontario Court of Appeal confirmed the conclusion reached in two separate applications before the Superior Court of Justice in Ontario related to a gas storage matter. For my post on these two decisions see here.

One decision, Tribute Resources v 2195002 Ontario Inc, 2012 ONSC 25 dealt with the jurisdiction of the Superior Court to consider the matter, the argument being that all gas storage issues should be litigated before the Ontario Energy Board (OEB) because of the preclusive clauses in the Ontario Energy Board Act, SO 1998, c.15 and the decision of the Ontario Court of Appeal in Snopko v Union Gas Ltd, 2010 ONCA 248, the subject of an earlier post here. A second decision, that of Justice Helen Rady in 21955002 Ontario Inc v Tribute Resources Inc  2012 ONSC 5412, dealt with the substantive question of whether Tribute could claim storage rights on the basis of an oil and gas lease and a unitization agreement or whether its rights were confined to such rights as it held under a gas storage lease which lease the Ontario Court of Appeal in an earlier action held to have expired: Tribute Resources v McKinley Farms, 2010 ONCA 392, also the subject of a previous ABlawg post here.

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