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Ministerial Order Commented On: Ministerial Order 51/2021 (Environment and Parks)

On May 27, the Minister of Environment and Parks (Jason Nixon) issued Ministerial Order 51/2021 to impose a fee to access Kananaskis Country. This new access fee applies to many popular parks and recreational areas in Kananaskis Country such as West Bragg Creek, Barrier Lake, Elbow Falls, Evans Thomas Creek, Spray Lakes, and Highwood Pass. Payment of the fee provides the purchaser with a Kananaskis Conservation Pass. The geographic scope of the fee requirement is curiously both over and under inclusive in relation to its name. The boundary map on the Alberta parks website (and attached to Ministerial Order 51/2021) indicates the access fee applies to areas outside of what is commonly known as Kananaskis Country (e.g. portions of the Bow Valley Wildland Park east of Canmore, including Grotto Canyon and Mount Yamnuska) and – as was pointed out by Nathan Schmidt (JD 2021) here – the fee does not apply to the McLean Creek area which is clearly within Kananaskis Country. This post critically examines the legislative changes made to implement the Kananaskis Conservation Pass requirement.

A Generalized Duty of Good Faith Applied to Disclaimer Under the CCAA

By Jassmine Girgis

On June 1, 2021

In Creditors’ Remedies

By: Jassmine Girgis

PDF Version: A Generalized Duty of Good Faith Applied to Disclaimer Under the CCAA

Case Commented On: Laurentian University v Sudbury University, 2021 ONSC 3392 (CanLII)

In this case, the court considered the new generalized duty of good faith in relation to setting aside a disclaimer under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (CCAA). When Laurentian University (LU), sought to disclaim agreements with the University of Sudbury (Sudbury) as part of its restructuring, Sudbury brought this motion to set the disclaimer aside, arguing that LU was using the CCAA restructuring process for a collateral or illegitimate purpose, namely to destroy a competitor (at paras 22—24). Sudbury argued that LU’s attempt to disclaim these agreements was a violation of its duty to act in good faith as per s 18.6. Concurrent to this motion, Thornloe University (Thornloe) also brought a motion against LU, dealing with the same issue – to set aside a disclaimer – using similar good faith arguments (Laurentian University of Sudbury, 2021 ONSC 3272 (CanLII) [Laurentian University]). Each motion was dismissed.

The Canada Energy Regulator Protects Trans Mountain from Canadians

By Christine Laing

On May 31, 2021

In Energy, Environmental, Oil & Gas

By: Christine Laing & Drew Yewchuk

PDF Version: The Canada Energy Regulator Protects Trans Mountain from Canadians

Decision Commented On: Decision on Trans Mountain’s Request for Confidential Treatment dated 29 April 2021

The Canada Energy Regulator (CER or Commission) has the statutory duty to assess financial resources plans filed by operating pipeline companies each year and determine whether those resources remain sufficient to cover the company’s expected liabilities if a pipeline spills. The written review process is open to the public through postings on the CER’s website. Trans Mountain requested an exception to the typical public filing process, asking the CER to keep their insurers confidential going forward. On April 29, 2021, the CER granted the request by making an order under section 60 of the Canadian Energy Regulator Act, SC 2019, c 28, s 10 (CER Act) to keep the identity of Trans Mountain’s insurers confidential. The decision pertains to the insurance in place to cover liability for the operating Trans Mountain pipeline, not liability associated with its decommissioning or liability associated with the construction or operation of the Trans Mountain Expansion Project.

COVID-19 and Enforcement of Public Health Orders

By Shaun Fluker

On May 27, 2021

In COVID-19

By: Shaun Fluker

PDF Version: COVID-19 and Enforcement of Public Health Orders

Legislation Commented On: Procedures (Public Health) Amendment Regulation, Alta Reg 92/2021

This amendment to the Procedures Regulation, Alta Reg 63/2017, was recently made by the Lieutenant Governor in Council with Order in Council 124/2021 (May 5, 2021). The amendment raises the specified penalty (the violation ticket amount) from $1000 to $2000 for contravention of a Chief Medical Officer of Health (CMOH) public health order issued under section 29 of the Public Health Act, RSA 2000, c P-37. The amendment came into force on May 19, 2021. This is the fine payable by a person who chooses to plead guilty (see Part 2 of the Provincial Offences Procedure Act, RSA 2000, c P-34) for such things as not wearing a mask where required, gathering in large groups outside, allowing non-family members into their home, or not keeping two metres apart from others. Premier Kenney announced the increased fine on May 4 during the initial ‘Stop the Spike’ announcement where the Premier also warned Albertans that section 73 of the Public Health Act provides for a penalty as high as $100,000 for a first offence in these matters. This is part of Alberta’s response to calls for stronger enforcement on non-compliance with COVID-19 public health orders. The third wave of this pandemic gave us a full display of just how inadequate the bare threat of legal enforcement is towards ensuring compliance with these rules. This deficiency in the authoritative punch of COVID-19 public health orders is also the reason why Alberta (and other provinces) went to the extreme measure of obtaining an injunction from the Court of Queen’s Bench to prohibit the very public and orchestrated violations of COVID-19 public health orders. While politicians across Canada begin to engage in what might end up being a foolhardy race to be the first jurisdiction to end COVID-19 restrictions (Premier Kenney announced Alberta’s ambitious Open for Summer Plan on May 26 – just three weeks after announcing tougher enforcement measures), it would be wise for these lawmakers to pause, reflect, and heed some lessons from the compliance and enforcement mess associated with their COVID-19 public health orders.

Responding to Concerns that Alberta Does Not Collect Enough Security for Environmental Remediation the AER Chooses to Collect Less Security

By Drew Yewchuk

On May 26, 2021

In Energy, Natural Resources, Oil & Gas

By: Drew Yewchuk

PDF Version: Responding to Concerns that Alberta Does Not Collect Enough Security for Environmental Remediation the AER Chooses to Collect Less Security

Document Commented On: Mine Financial Security Program Standard, dated May 6, 2021

On May 6, 2021, the Alberta Government announced they would review and modify the Mine Financial Security Program (MFSP). The MFSP is Alberta’s system for ensuring (purportedly at least) that companies pay for the reclamation of their mines, both oilsands and coal. At first glance, a review and modification sounds like a good idea, since the MFSP has been criticized as severely deficient since at least 2015 when an Auditor General report identified numerous significant problems concluding that in the event that “a mine operator cannot fulfill its reclamation obligations… the province may have to pay a potentially substantial cost for this work to be completed” (at 2). Since then, the Alberta Energy Regulator (AER) has improved its administration of the program, but Alberta Environment and Parks (AEP), the primary department responsible for the policy and design of the MFSP, has not addressed the overall structure of the program (see the Auditor General’s 2019 report). Under the MFSP, the province held $1.57 billion in security against estimated reclamation liabilities of $20.8 billion in December 2014 and $1.46 billion in security against $28.35 billion in estimated reclamation liabilities in June 2018. So reform is long overdue, especially if Alberta is considering approving new coal mines.