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Thursday, April 15, 2010

Read comment on Snopko v. Union Gas decision by Professor Nigel Bankes, University of Calgary

Professor Nigel Bankes of the University of Calgary, Faculty of Law, has posted a comment on the recent decision of the Ontario Court of Appeal in Snopko v. Union Gas.  The case confirmed the OEB's exclusive jurisdiction over gas storage in Ontario.  With respect to the Court's decision on the jurisdiction of the Board to determine the validity of private contracts, Bankes notes:
What appears to be unusual about the present case i.e. the Snopko decision is that it concludes that some matters that might appear to be matters of private law are so closely connected with the core elements of an energy regulator’s jurisdiction (here the jurisdiction to deal with holdouts when assembling a gas storage project and the power to set compensation accordingly) that the ordinary courts must decline jurisdiction even though the issues are presented by the plaintiff as private law matters e.g. invalidity of a lease and even unconscionability. This clearly goes beyond confirming the power of the regulator to decide points of law as a necessary element in exercising its jurisdiction; instead the decision accords to the regulator an exclusive original jurisdiction over a broad range of matters. One wonders if this is not a step too far? Is the OEB really the best place to decide whether an agreement is tainted by unconscionability? Even if it has the ability to do so as a necessary part of deciding other issues that may be put to the Board does it follow from this that a plaintiff cannot submit these issues to a s.96 Court?
Read the comment at: ABlawg.ca.