Setting Aside and Varying Orders of the Residential Tenancies Dispute Resolution Service for Procedural Unfairness

By: Jonnette Watson Hamilton

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Cases Commented On: 21006414 (Re), 2021 ABRTDRS 19 (CanLII), 20003149 (Re), 2020 ABRTDRS 18 (CanLII), 20003525 (Re), 2020 ABRTDRS 21 (CanLII), and Hammond v Hammond, 2019 ABQB 522 (CanLII)

This post looks at how difficult it is to have an order of the Residential Tenancy Dispute Resolution Service (RTDRS) set aside or varied. The power of a Tenancy Dispute Officer (TDO) to set aside or vary their own order was added in 2017 to the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006 (RTDRS Regulation). Unfortunately, there has been little reported consideration of how the new section 19.1 works. There are three reported Reasons for the Decision from the RTDRS, all of which were written by TDO J. Young. The most recently added Reasons for Decision cited two Court of Queen’s Bench cases that provide some principles that can be used to interpret section 19.1. It is therefore an opportune time to look at how easy (or difficult) it is for a landlord or tenant to persuade a TDO to set aside or vary the TDO’s own order. Continue reading →

Considering the Court’s Reputation: Injunctions and Civil Disobedience

By: Daniella Marchand*

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Decision Commented On: Teal Cedar Products Ltd. v Rainforest Flying Squad, 2021 BCSC 1903 (CanLII)

On September 28th, 2021, Justice Douglas Thompson declined to grant Teal Cedar Products Ltd. an extension to an injunction that was put in place in response to the growing protests, demonstrations, and blockades preventing Teal Cedar’s access to Fairy Creek in British Columbia. Fairy Creek is located northeast of Port Renfrew, on the territory of the Pacheedaht First Nation. This judgement came as the protests and blockades entered their second year, and recently led to the highest number of arrests during an act of civil disobedience in Canadian history. Continue reading →

Alberta Court of Appeal Rules on Role of Honour of the Crown and Reconciliation in AUC Rate Applications

By: Kristen van de Biezenbos

PDF Version: Alberta Court of Appeal Rules on Role of Honour of the Crown and Reconciliation in AUC Rate Applications

Case Commented On: AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342 (CanLII)

The overarching mandate of the Alberta Utilities Commission (AUC or the Commission) is to ensure just and reasonable electricity rates for consumers, and much of the work they do is geared towards deciding whether the costs that businesses involved in the electricity sector have incurred or are set to incur can be passed down to ratepayers. AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342 (CanLII), a recent decision from the Alberta Court of Appeal (ABCA) adds a new dimension to what is usually a strictly fact-based economic calculation when the applicant is an Indigenous-owned company or partnership. The Court charts new territory by making it clear that the AUC’s decisions in such cases must uphold the honour of the Crown and be made in a manner consistent with the principle of Reconciliation. Continue reading →

Another Year Gone Under the Mine Financial Security Program

By: Drew Yewchuk

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Legislation Commented On: Annual Mine Financial Security Program Submissions, 2021 Submissions for 2020 Reporting Year

In a post back in May 2021, I complained about a change to Alberta’s Mine Financial Security Program (MFSP). This is a follow-up post in response to the Alberta Energy Regulator (AER) posting the annual submissions under the program on September 30, 2021. Note that each annual submission is for the September of the previous year, so the 2021 report is relevant to the situation in September 2020.

The MFSP is Alberta’s system for ensuring that companies pay for the reclamation and remediation of their mines, both oilsands and coal (but not conventional oil and gas, which is handled by a different liability management system that also does not work properly). In short, the MFSP allows companies to use an asset safety factor against their estimated future environmental liabilities, such that if a mine’s resource assets are worth more than three times the total anticipated reclamation costs (3:1), nothing beyond an initial (and wholly inadequate) ‘base deposit’ is required, provided also that the planned reclamation is conducted as scheduled, and the mine has more than 15 years of reserves remaining. Companies may also choose to skip those calculations and pay full security based on an estimate of the total cost of clean-up. Continue reading →

Energy Storage, Definition and Ownership Between Alberta and Texas

By: Ahmed Selim

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Policy Commented On: Alberta Electric System Operator’s (AESO) Energy Storage

Alberta has the least regulated electricity market in Canada (see generally Natural Resources Canada, “About Electricity”). The Alberta market is an energy-only market where electricity generators are paid solely based on the amount of electricity they produce. In 2020, wind and solar power accounted for 11% and 1% of the installed electricity generation capacity in Alberta, respectively (AESO 2020 Annual Market Statistics at 13).

At the same time, the Alberta Utilities Commission (AUC) acknowledges how energy storage could potentially disrupt the wholesale energy market (Distribution System Inquiry: Final Report, at para 225). Gird-scale energy storage may be able to mitigate the intermittency of wind and solar power. However, as Eeles et al note, it is uncertain where energy storage stands in Alberta’s utilities legal framework (David Eeles et al, “Energy Storage: The Regulatory Landscape in Alberta” (2021) [unpublished, archived at Norton Rose Fulbright Canada LLP]). This blog post summarizes the four main types of energy storage and discuss uncertainties around the definition and ownership rules of energy storage in Alberta and Texas. Both the Alberta and Texas electricity markets are energy-only markets as opposed to capacity markets. Electricity producers are solely paid base on how much electricity they generate. In capacity market jurisdictions, electricity producers have a second revenue stream based on how much of their production capacity is made available to the grid, regardless of whether the whole capacity is utilized or not. Continue reading →