Canadian Energy Perspectives

Developments in Energy and Power Law

Canadian Energy Perspectives

BC Hydro Site C Litigation Update – New petition filed by Treaty 8 First Nations, while injunctive relief denied; Federal Court dismisses Peace Valley Landowner Association petition

Posted in BC Hydro, Hydroelectric
British Columbia
Stephanie AxmannJordanna Cytrynbaum

This post provides an update on the latest developments in the litigation proceedings involving BC Hydro’s Site C Clean Energy Project (Site C), and a summary of the current status of each of the judicial review applications that have been filed to date. Please see our earlier posts on July 21st and August 14th for additional background on the judicial review proceedings filed in BC Supreme Court and Federal Court. Continue Reading

BC Government Invites Comments on Proposed Water Sustainability Act Policies

Posted in Water
British Columbia
Paul CassidySelina Lee-AndersenMonika Sawicka

With British Columbia’s (BC) new Water Sustainability Act (WSA) expected to come into force in early 2016, the provincial government is in the process of designing the regulations and operational policies that will support the implementation of the WSA. As part of the BC government’s phased approach to implementation, it recently released four papers outlining proposed new policies which are expected to be incorporated into new WSA regulations. The papers are now available on the WSA blog for public comment until September 8, 2015. Continue Reading

Conversation Starters: Alberta Releases Climate Change Discussion Document

Posted in Climate Change, Climate Policy
Alberta
Selina Lee-Andersen

On August 14, 2015, Alberta Environment and Parks released its Climate Leadership Discussion Document (Discussion Document) as part of the province’s ongoing efforts to design a comprehensive action plan on climate change. As discussed in our earlier blog, the Alberta government announced in June 2015 that it was taking steps to achieve real, demonstrable reductions in the province’s greenhouse gas (GHG) emissions by tightening its existing GHG regulation, the Specified Gas Emitters Regulation and appointing an advisory panel (Advisory Panel) to undertake a comprehensive review of Alberta’s climate change policy. Continue Reading

BC Hydro Site C Litigation Update – Two Challenges To Site C Heard in Federal Court

Posted in BC Hydro, Hydroelectric
British Columbia
Stephanie AxmannJordanna Cytrynbaum

This post provides an update on recent developments in the litigation commenced in respect of BC Hydro’s Site C Clean Energy Project (Site C). Please see our earlier post for an overview of each of the Federal Court and Provincial Court proceedings. Continue Reading

Monetary Administrative Penalties: Previous Non-Compliances by an Affiliated Entity cannot be considered as an Aggravating Factor

Posted in Climate Change, Projects, Wind
Québec
Dominique Amyot-BilodeauCindy Vaillancourt

On June 23, 2015, the Administrative Tribunal of Quebec (the “TAQ”) quashed a monetary administrative penalty (“MAP”) which had been imposed by the Ministry of Sustainable Development, Environment and the Fight against Climate Change (“MSDEFCC”) because of minor violations to a certificate of authorization.[1] Continue Reading

Supreme Court of Canada upholds the constitutional validity of administrative monetary penalties

Posted in Federal, Supreme Court
Québec
Michel GagnéCatherine Frémont

The Supreme Court of Canada (the “SCC”) recently upheld the constitutional validity of administrative monetary penalties (“AMPs”) imposed under the Income Tax Act (the “ITA”) by concluding that they are of an administrative nature rather than of a criminal nature. This SCC decision might have consequences in other areas of law, in particular in environmental law, where the imposition of AMPs is now common practice.

In the case of Guindon v. Canada[1], Julie Guindon was assessed penalties totalling $546,747 under section 163.2(4) of ITA, which provides for the imposition of AMPs on every person who makes a false statement that could be used by another person. Ms. Guindon argued that the penalty imposed under the ITA was criminal and that she was therefore a person “charged with an offence” who was entitled to the procedural safeguards provided for in s. 11 of the Canadian Charter of Rights and Freedoms (the “Charter”). The SCC rather concluded that section 163.2(4) of the ITA did not create a “true criminal offence” and that, therefore, Ms. Guindon was not a person “charged with an offence”. Accordingly, the SCC ruled that the protections under s. 11 of the Charter did not apply.

In its reasoning, the SCC indicates that the process under section 163.2 is of an administrative nature because it aims at maintaining compliance or regulating conduct within a limited sphere by promoting honesty and deterring gross negligence on the part of tax preparers. By contrast, criminal proceedings are aimed at promoting public order and welfare within a public sphere of activity. According to the SCC, such administrative process can be contrasted with the process which applies to criminal offences because no one is charged, no information is laid against anyone, no one is arrested, no one is summoned to appear before a court of criminal jurisdiction and no criminal record will result from the proceedings. At worst, once the administrative proceeding is complete and all appeals are exhausted, if the penalty is upheld and the person liable to pay still refuses to do so, he or she risks being forced to pay by way of a civil action.

This SCC decision does not discuss the defences available against the imposition of AMPs nor the issue of the burden of proof. Earlier in 2015, the Administrative Tribunal of Quebec recognized that a person could bring forward the “reasonable, prudent and diligent person” defence that exists in civil law against the imposition of AMPs pursuant to the Environment Quality Act[2]. It will be interesting to see how the case law continues to evolve in relation to AMPs imposed pursuant to environment laws.

[1]       Guindon v. Canada, 2015 SCC 41.

[2]       Excavation René St-Pierre inc. v. MDDELCC, 2015 QCTAQ 02386.

New RFP for a 6 MW Wind Farm in the Îles-de-la-Madeleine

Posted in Québec, Québec Hydro-Québec, Wind
Québec
Louis-Nicolas BoulangerMathieu LeBlanc

Hydro-Québec held on July 14 in Montreal an information session regarding the upcoming launch of a request for proposals to develop, build and operate a 6 MW wind farm in the Îles-de-la-Madeleine, in the province of Québec.

That wind farm would be integrated into the off-grid system of the Îles-de-la-Madeleine and would contribute to reducing Hydro-Québec’s use of its Cap-aux-Meules oil-fired thermal plant. Continue Reading

Premiers Unveil Canadian Energy Strategy at Summer Meeting

Posted in Climate Change, Emissions Regulation, Energy – Renewable, Alternative and Clean
Selina Lee-AndersenKimberly Macnab

At the summer meeting of the Council of the Federation that was held in St. John’s from July 15 to 17, 2015, Canada’s provincial and territorial Premiers unveiled their Canadian Energy Strategy (CES). Continue Reading

Hydro-Québec Issues New RFP for Wind Power Integration Service

Posted in Hydroelectric, Québec Hydro-Québec, Wind
Québec
Louis-Nicolas BoulangerMathieu LeBlanc

On July 17, 2015, Hydro-Québec Distribution (“HQD”) issued a new request for proposals (A/O 2015-02) (the “RFP”) for the purchase of a wind power integration service for all of its wind farms under contract.

The proposals will be required to include a balancing service to guarantee wind energy deliveries as well as additional firm capacity during the winter period, from December 1 to March 31 of each year. Continue Reading

Site C Update – Federal Court judicial review proceedings to commence this week, following BC Hydro’s receipt of provincial authorizations to begin construction

Posted in Aboriginal, BC Hydro
British Columbia
Stephanie AxmannJordanna Cytrynbaum

This article provides a consolidated overview of recent developments in the six judicial review proceedings challenging the governmental approvals of Site C. Please check our blog for future updates on key developments in the proceedings. Continue Reading

Alberta Takes Two Meaningful Steps Towards Renewing its Climate Change Policy

Posted in Climate Change, Climate Policy
Alberta
Selina Lee-Andersen

As Alberta’s new provincial government looks to assert itself as a leader on climate change issues, it recently announced that it is taking meaningful steps to achieve real, demonstrable reductions in the province’s greenhouse gas (GHG) emissions. In addition, Premier Rachel Notley has made it clear that she expects to have a long-term climate change strategy in place for the province before she travels to the United Nations Climate Change Conference (COP 21) starting in Paris on November 30, 2015. To that end, Alberta’s Minister of Environment and Parks, Shannon Phillips, announced on June 25, 2015 that the government is taking a two-step approach to climate change policy renewal. Continue Reading

BC Premier’s 2015/16 Mandate Letters Highlight Policy Priorities on LNG, Climate Change, Oil Spill Safety and Tailings Pond Management

Posted in Climate Change, Liquefied Natural Gas
British Columbia
Selina Lee-Andersen

On June 12, 2015, British Columbia (BC) Premier Christy Clark issued updated mandate letters to her provincial cabinet ministers. The annual mandate letter provides the government’s annual direction to the various provincial ministries and confirms each ministry’s priorities for the year. Continue Reading

Federal Government Introduces Prince Rupert Port Authority Liquefied Natural Gas Facilities Regulations

Posted in Federal, Liquefied Natural Gas
British Columbia
Paul CassidyMonika SawickaConnor Bildfell

On June 20, 2015, the federal Department of Transportation published the proposed Port of Prince Rupert Liquefied Natural Gas Facilities Regulations (Regulations) with respect to proposed liquefied natural gas (LNG) facilities to be built at Prince Rupert, British Columbia. The Regulations are issued under federal authority by virtue of the Canada Marine Act, which regulates Canadian ports. At present, there are four proposals for LNG facilities to be located at Prince Rupert, two are to be located wholly on federal port lands and two are to be located largely on provincial lands, with small portions on federal port lands. Continue Reading

IESO Releases Addendum to LRP Contract

Posted in Electricity, Energy – Renewable, Alternative and Clean, Independent Producers, Ontario Independent Electricity System Operator, Ontario Power Authority, Power, Procurement, Projects, Purchase Agreements
Ontario
Christopher Perez

The IESO has released an addendum to the Large Renewable Procurement I Request for Proposals and Contract.

The amendments to the RFP and the Contract contained in the addenda clarify several matters that had been raised in respect of the LRP program, including: Continue Reading

Hydro-Québec RFP A/O 2015-01 Deadline for Submitting Bids has Passed

Posted in Biomass, Energy – Renewable, Alternative and Clean, Hydroelectric, Natural Gas, Québec Hydro-Québec
Québec
Mathieu LeBlancLouis-Nicolas Boulanger

The deadline for submitting bids in Hydro-Québec Distribution’s RFP A/O 2015-01 was May 20, 2015. Such RFP aims at purchasing 500 MW of firm capacity and associated energy to meet the long-term domestic electricity needs of Québec. Continue Reading

Class action in neighborhood disturbances in Québec : has the wind turned ?

Posted in Energy – Renewable, Alternative and Clean, Québec Hydro-Québec, Wind
Québec
Mathieu LeBlanc

We invite our readers to read an interesting article posted by our colleagues on our Canadian Class Actions Monitor blog regarding a class action in neighborhood disturbances concerning the construction of a wind farm near Quebec City. It can be accessed here.

New Climate Leadership Team Tasked with Updating BC Climate Action Plan

Posted in Climate Change, Climate Policy
British Columbia
Selina Lee-Andersen

On May 12, 2015, British Columbia (BC) Premier Christy Clark introduced a Climate Leadership Team that has been tasked with developing a Climate Leadership Plan, which will update and build on the province’s current Climate Action Plan. Chaired by Mike Bernier, Member of the BC Legislative Assembly, the Climate Leadership Team consists of 23 members who are drawn from a diverse range of academic, community, business, environmental, and Aboriginal groups. These groups include Simon Fraser University and the University of British Columbia, several municipalities, the Council of Forest Industries, BC LNG Alliance, Clean Energy Canada, the Pembina Institute and chiefs from three Aboriginal groups, among others. Continue Reading

Gordon Nettleton and Héloïse Apestéguy-Reux participating in OBA program on energy regulation with Bruce Campbell, President and Chief Executive Officer of the IESO and other energy practitioners

Posted in Electricity, Ontario Independent Electricity System Operator, Regulation
Héloïse Apestéguy-ReuxGordon Nettleton

On Tuesday, April 28th, Gordon Nettleton and Héloïse Apestéguy-Reux will be participating, along with Bruce Campbell, President and Chief Executive Officer of the IESO and other energy practitioners, in an Ontario Bar Association (OBA) program on energy regulation. 

The program, “Recent Developments in Energy Regulation,” will include insights on the merger of the IESO and OPA, electricity distribution consolidation and rate regulation, as well as what to expect from the upcoming Energy East proceeding at the National Energy Board.  Gordon Nettleton is a guest speaker for the program and Héloïse Apestéguy-Reux is co-chair. The program has been organized by the OBA’s Natural Resources and Energy Section.

Information on the program can be found here. If you are available to attend the program and would like to request a last-minute spot, please email Héloïse at hapesteguyreux@mccarthy.ca.

More information on the OBA’s Natural Resources and Energy Section can be found here.

 

Ontario Introduces Cap & Trade System

Posted in Climate Change, Climate Policy, Emissions Regulation, Emissions Trading
Ontario
Saqib ButtJoanna Rosengarten

On April 13, 2015, Premier Kathleen Wynne announced that Ontario would implement a cap and trade system aimed at reducing greenhouse gas emissions in the province. Ontario has committed to imposing a hard cap on pollution for each sector of the economy.

A cap and trade system, in general, places a limit on the amount of greenhouse gas emissions that may be produced in a specified time frame. As time progresses, this limit is reduced as per previously established guidelines. Businesses must hold enough emission allowances in order to equal their actual greenhouse gas emissions. If a business does not hold enough allowances for the given time period, they may purchase allowances to meet the requirement. Conversely, if a business holds an excess of allowances, they may save them or sell them to other businesses.

Continue Reading

Minister of Energy Issues Direction to IESO Regarding FIT Priority Points

Posted in Electricity, Energy – Renewable, Alternative and Clean, Feed-in-Tariff, FIT, Micro-FIT, FIT 2.0, Independent Producers, Ontario Independent Electricity System Operator, Ontario Ministry of Energy, Ontario Power Authority, Power, Project Finance
Ontario
Stephanie Yarmo

On April 7, 2015, the Minister of Energy issued a direction (the “Direction”) to the Independent Electricity System Operator (the “IESO”) directing it to make certain changes to the Feed-in Tariff (FIT) program, while noting there are no substantial changes to be made to the microFIT program in 2015. The Direction is effective as of April 7, 2015.

The Direction can be viewed here.

Continue Reading

Québec Government Introduces its 2015-2020 Action Plan for Plan Nord

Posted in Plan Nord, Québec
Québec
Louis-Nicolas BoulangerMathieu LeBlanc

On April 8, 2015, Québec’s Premier Philippe Couillard introduced his 2015-2020 action plan for the implementation of the Plan Nord. The document entitled Plan Nord toward 2035 aims at setting out the updated policy directions and priority actions which will drive the economic development of northern Québec for the coming years and contribute to relaunching Plan Nord. Continue Reading

B.C. Government Tables Amendments to LNG Tax Legislation

Posted in Liquefied Natural Gas
British Columbia
Brian O'NeillPatrick Beechinor

In a previous blog entry,[1] we provided comprehensive commentary on the then-recently tabled Liquefied Natural Gas Income Tax Act (the “Act”), the foundational piece of legislation in the B.C. Government’s proposed liquefied natural gas (“LNG”) taxation regime.

On November 27, 2014, the Act received royal assent and the Province has since been in the process of crafting associated regulations and amendments. The first of these, Bill 26 – Liquefied Natural Gas Income Tax Amendment Act, 2015 (the “Proposed Amendment”), was released on March 25, 2015, and proposes a number of amendments to the Act, including many relating to the Province’s prior commitment to set out enforcement and administration mechanisms for the Act by spring 2015, as well as a welcome change to the new Natural Gas Tax Credit. Continue Reading

BC First Nation Commences Treaty 8 Infringement Action Against Province

Posted in Aboriginal
AlbertaBritish Columbia
Stephanie AxmannSelina Lee-Andersen

Blueberry River First Nations (BRFN) has commenced a novel treaty rights infringement claim (Claim) against the Province of British Columbia (Province). The Claim, filed March 3, 2015, alleges that the Province has breached its Treaty 8 obligations due to the cumulative impacts of provincially authorized industrial development in BRFN’s traditional territory.[1]

BRFN’s traditional territory is located in the Upper Peace River region of northeastern BC, around and mainly north of Dawson Creek, Fort St. John and Hudson’s Hope.

The Claim is significant because it is one of the first treaty rights infringement claims to be argued primarily on the basis of cumulative impacts on a First Nation’s entire traditional territory. The other significant case that stakeholders are watching closely is the ongoing claim commenced in 2008 by the Beaver Lake Cree Nation in Alberta alleging that cumulative effects of resource development violates its Treaty 6 rights, discussed in more detail below. Continue Reading

Hydro-Québec Issues New RFP for 500 MW of Firm Capacity and Related Energy

Posted in Electricity, Purchase Agreements, Québec Hydro-Québec
Québec
Louis-Nicolas BoulangerMathieu LeBlanc

On March 4, 2015, Hydro-Québec Distribution (“HQD”) issued a new request for proposals for the purchase of up to 500 MW of firm capacity and the related energy during “peak periods”.

The energy offered by bidders will need to be available for at least 300 hours per year, mainly during the winter period, in accordance with a delivery schedule which may be communicated by HQD at any time on a four hour minimum prior notice. Continue Reading