ABLawg - - Page 315

Unjustly discriminatory rates on Ventures Pipeline to continue; the Commission decides that it lacks jurisdiction to set interim or final rates.

On July 4, 2012

PDF version: Unjustly discriminatory rates on Ventures Pipeline to continue; the Commission decides that it lacks jurisdiction to set interim or final rates.

Cases and decisions commented on:

(1) AEUB Decision 2006-105, Suncor Energy Inc., Preliminary Decision Regarding Jurisdiction to have the Ventures Pipeline (Oil Sands Pipeline) Regulated Under the Provisions of the Gas Utilities Act, Section 24 of the Gas Utilities Act, October 24, 2006;

(2) TransCanada Pipeline Limited v Alberta (Energy and Utilities Board), 2008 ABCA 55 (appeal of AEUB Decision 2006-105);

(3) AUC Decision 2009-065, TransCanada Pipeline Ventures Ltd, Suncor Energy Inc, Application to Have the Ventures Pipeline (Oil Sands Pipeline) Regulated Under the Provisions of the Gas Utilities Act, Section 24 of the Gas Utilities Act – Investigation, May 20, 2009;

(4) TransCanada Pipeline Ventures Ltd v. Alberta (Utilities Commission), 2010 ABCA 96 (appeal of AUC 2009-065);

(5) AUC Decision 2012-164, Williams Energy (Canada), Inc, Application to Terminate the Williams Contract for Ventures Pipeline Transportation Service or, in the Alternative, Set Rates to be Imposed and Observed by the Owners of Ventures Pipeline, June 14, 2012.

On June 14, 2012 the Alberta Utilities Commission (AUC\Commission) handed down its decision in the latest effort by the contract shippers on Ventures Pipeline to obtain relief from what the Commission has already ruled to be rates that are “unjust or unreasonable, unjustly discriminatory or unduly preferential” (AUC Decision 2009-065 at paras 145 & 147). The AUC declined to grant the relief sought. How could this be? The simple answer is that section 5 of the Gas Utilities Act, RSA 2000, c G-5 (GUA) provides that the Commission may only exercise its authority under certain key sections of the GUA (including the rate setting provisions) if the Commission has been authorized to do so by means of an Order in Council (OC), or if the gas utility in question is covered by an exemption under the regulations. The Commission held that Ventures did not fall within any of the existing categories of exemption and further, that since there was no OC in place (despite the Commission’s request), the Commission had no jurisdiction to fix final or interim rates for Ventures.

Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights

By Jonnette Watson Hamilton

On July 3, 2012

In Constitutional, Family

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF version: Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights

Case Commented On: Dares v Newman, 2012 ABQB 328

A father died in a motor vehicle accident. For his grief and the loss of his father’s guidance, care and companionship, his biological child received $45,000 in bereavement damages from the at-fault driver’s insurance company under section 8(2)(c) of the Fatal Accidents Act, RSA 2000, c F-8. His two adopted children, who had not spoken to him for twenty years, also received $45,000 each under the same provision. His two stepchildren, to whom he had stood in the place of a parent for twenty years – and who had received his guidance, care and companionship over two decades and who suffered grief on his death – received nothing. This case raises the issue of the extent to which government is entitled to deny benefits to certain claimants for the purpose of restricting legal action against private parties for tortious conduct causing death.

Building energy empires on (legal) foundations of sand, or, can I have my cake and eat it too?

By Nigel Bankes

On June 27, 2012

In Energy, Property

PDF version: Building energy empires on (legal) foundations of sand, or, can I have my cake and eat it too?

Case commented on: Remington Development Corporation v Enmax Power Corporation, 2011 ABQB 694, aff’d 2012 ABCA 196.

Most people would think that if Utility Co (U Co) needs access to cross Y’s land in order to construct a major capital investment in the form of a utility right of way, U Co will secure any necessary access rights (easement or utility right of way) either: (1) by way of an agreement, or (2) by way of expropriation if Y tries to extract hold-out rents. In either case, U Co will want the expropriation or agreement to bind the land: i.e. to run with the land no matter what Y does with it (sell it, assign it into bankruptcy etc.). And in either case one would think that U Co (and its lawyers) would want to make sure that the agreement bound the land for so long as U Co needed the right of way – or at least for a reasonable amortization period for the investment that U Co is about to make, so as to ensure that it does not have stranded assets on its hands, or worse still, a gap in its transmission system.

Ride the Coattails –Yahoo!

By Cliff Shaw, Q.C.

On June 25, 2012

In Bankruptcy and Insolvency, Creditors’ Remedies

PDF version: Ride the Coattails –Yahoo!

Case considered: Toronto Dominion Bank v Letendre, 2012 ABQB 323 rev’g 2012 ABQB 369.

This was a competition for the surplus funds paid into court in a mortgage foreclosure action.The case examined policy and operational aspects of the two year limitation in section 3(1) of the Limitations Act, RSA 2000, c L-12 (“Act”).

Transporting Liberty: A Right Not to be Deprived of Access to Public Transit?

By Jennifer Koshan

On June 21, 2012

In Constitutional, Criminal, Youth and the Law

PDF version: Transporting Liberty: A Right Not to be Deprived of Access to Public Transit?

Case considered: R v S.A., 2012 ABQB 311, overturning 2011 ABPC 269

Section 7 of the Charter provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The liberty interest in section 7 has been slowly evolving since the Charter came into force in 1982. Debates have occurred about how broadly the right not to be deprived of liberty should be constitutionally protected, and to date a majority of the Supreme Court has not accepted a wide interpretation. In R v S.A., the issue was whether banning a young person from all Edmonton Transit System (ETS) properties for a period of time violated her protected liberty interests, and if so, whether this violation was contrary to the principles of fundamental justice. At the Provincial Court level, Judge D. Dalton answered both questions in the affirmative, taking a broad approach to the interpretation of liberty (2011 ABPC 269). On appeal, Justice M.A. Binder of the Court of Queen’s Bench interpreted liberty more narrowly, and found that there was no violation of section 7 (2012 ABQB 311). An application for leave to appeal that decision was filed by S.A. on June 14. This post will contrast the two decisions and argue in favour of a broad interpretation of liberty in the circumstances of this case.

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