Energy Storage, Definition and Ownership Between Alberta and Texas

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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Alberta’s utilities legal framework (David Eeles et al, “Energy Storage: The Regulatory Landscape in Alberta” (2021) [unpublished, archived at Norton Rose Fulbright Canada LLP]).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 →

Who is Responsible for Extreme Intoxication?

By: Lisa Silver

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Case Commented On: R v Brown, 2021 ABCA 273 (CanLII) (Supreme Court of Canada Appeal Hearing Scheduled for November 9, 2021)

What you are about to read is not the usual case commentary. I will not summarize, analyze, or otherwise slice and dice the decision from the Alberta Court of Appeal in R v Brown, 2021 ABCA 273 (CanLII), a case upholding the constitutionality of s 33.1 of the Criminal Code, RSC 1985, c C-46. Rather, I will provide context for the case, setting out the underlying principles at stake and the controversies underpinning the conflicting legal perspectives. Section 33.1 was a response by our lawmakers to the Supreme Court of Canada’s ultimate decision in R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63, which found the rule against using intoxication as a defence for general intent offences unconstitutional under s 7 of the Charter (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11), where the accused was in a state of extreme intoxication. Section 33.1 promptly foreclosed this limited defence where the accused person used violence against or interfered with the bodily integrity of any person. Although the section was added to the Criminal Code in 1995, a mere one year after the release of Daviault, it is only recently that appellate courts have weighed in on the constitutionality of that section. Continue reading →

Alberta Adds Health Care Facilities to the Scope of Anti-Protest Legislation

By: Shaun Fluker

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Legislation Commented On: Critical Infrastructure Defence Regulation, AR 169/2021

On September 29, 2021, and on the basis of authority granted under section 5 of the Critical Infrastructure Defence Act, SA 2020, c C-32.7, the Lieutenant Governor in Council issued Order in Council 265/2021 to enact the Critical Infrastructure Defence Regulation. This Regulation adds prescribed health care facilities – including hospitals – to the list of essential infrastructure covered by the Critical Infrastructure Defence Act, which thereby applies the prohibitions in the Act to those facilities. The Premier announced this new regulatory measure on September 28 as a response to anti-vaccine protests held recently at health care facilities. The timing of this announcement and the subsequent enactment of the Regulation was ideal for using it as a discussion item with 1Ls in Law 403 – Legislation – to illustrate how regulations are enacted and come into force. This short comment is intended to share that analysis with ABlawg readers. Continue reading →

Procedural Fairness When Challenging Timeline Extensions for Freedom of Information Requests

By: Drew Yewchuk

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Decision Commented On: Blades v Alberta (Information and Privacy Commissioner), 2021 ABQB 725 (CanLII)

The recent decision in Blades v Alberta (Information and Privacy Commissioner), 2021 ABQB 725 (CanLII) (Blades) relates to two issues ABlawg has previously covered. First, the challenges of getting government records in a timely manner using the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP). Prior posts on FOIP have discussed the challenges with the information request process, and the challenges presented by the review process at the Office of the Information and Privacy Commissioner. Second, the Alberta government’s decision to revoke the 1976 Coal Development Policy for Alberta. See the list of coal-related ABlawg posts listed at the top of this post. Looking past those specifics, Blades is a judicial review decision about an administrative body’s obligation of procedural fairness and the right to be heard by the administrative decision-maker. Continue reading →

Yahey v British Columbia and the Clarification of the Standard for a Treaty Infringement

By: Robert Hamilton & Nick Ettinger

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Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

On June 29, 2021, the Supreme Court of British Columbia ruled that the Crown had infringed Treaty 8 by “permitting the cumulative impacts of industrial development to meaningfully diminish [Blueberry River First Nation’s (Blueberry)] exercise of its treaty rights” (Yahey v British Columbia, 2021 BCSC 1287 (CanLII) at para 1884 [Yahey]). This is the first time a court has held that the cumulative effects of multiple projects may form the basis of a treaty infringement. The trial judge’s nuanced articulation of the standard for what constitutes a treaty infringement enabled this groundbreaking development (see paras 445-547). We reviewed the factual and legal findings of the decision in a previous post. This post unpacks the doctrinal aspects of treaty infringement in more detail to contextualize Justice Emily Burke’s navigation of infringement case law and formulation of the “significantly or meaningfully diminished” standard in Yahey (at para 541). While some pundits have interpreted Yahey to be a dramatic lowering of the standard for an infringement, we believe the decision is an insightful clarification and faithful application of Supreme Court precedent. Continue reading →