Miachika, P.Eng.,
David L.
Borden Ladner Gervais LLP
(604) 640-4220
dmiachika@blg.com
Mr. Miachika practises in
the areas of construction,
insurance coverage and
real estate dispute resolu-
tion, including litigation,
arbitration and mediation of
construction, infrastructure,
professional liability and real
estate development claims.
Mondrow, Ian A.
Gowling Lafleur
Henderson LLP
(416) 369-4670
ian.mondrow@gowlings.com
Mr. Mondrow is a partner
practising in the area of
energy regulation and policy.
He has represented electri-
city generators, transmitters,
distributors, competitive
energy retailers and services
providers, electrical contract-
ors and energy consumers.
Muggah, Sean A.
Borden Ladner Gervais LLP
(604) 640-4020
smuggah@blg.com
Mr. Muggah's practice fo-
cuses on large infrastructure
projects in various sectors
across Canada including
energy, transportation,
healthcare & education.
He is also involved in pri-
vatizations & commercial
transactions involving
governmental bodies.
Mitchell, Craig
Stikeman Elliott LLP
(416) 869-5509
cmitchell@stikeman.com
Mr. Mitchell acts on behalf
of domestic and foreign
lenders and borrowers on
acquisition, asset-based,
mezzanine and project
financings and debt restruc-
turing transactions across a
broad range of industries.
Morrison, Patricia L.
Borden Ladner Gervais LLP
(403) 232-9472
pmorrison@blg.com
Ms. Morrison is the Calgary
regional leader of BLG's
Construction Group. She
acts for parties in all facets of
the construction industry, in-
cluding the negotiation and
draing of P3 agreements,
procurement, disputes and
environmental matters.
Murphy, Timothy J.
McMillan LLP
(416) 865-7908
tim.murphy@mcmillan.ca
Mr. Murphy, former Chief
of Staff to Canada's prime
minister, focuses on project
finance transactions, includ-
ing P3s, for sectors such as
infrastructure and energy.
He also advises clients here
and abroad in construction,
procurement and finance.
26
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ENERGY REGULATION
LEXPERT
®
RANKED LAWYERS
damages, he suggests, governments might
negotiate offsets in the form of enhance-
ments to wetlands or other environmentally
valuable areas.
Martin Ignasiak, with Osler, Hoskin &
Harcourt LLP in Calgary, sees the newly
recognized non-use value as inescapably a
measure of the degree to which public opin-
ion is offended by environmental damages.
e Rocky Mountains, Ignasiak notes, have
measurable tourism values, "but we value the
Rocky Mountains way beyond whatever that
financial value might be. e environment
has a significant value to us, as a society,"
which he says the Supreme Court of Canada
has recognized since its 2004 decision in
British Columbia v. Canadian Forest Prod-
ucts Ltd., in which the court acknowledged
"the subjective or emotional attachment of
the public to the damaged or destroyed area."
"You can expect that, in future litiga-
tion, it will be identified as a compensable
head of damage," Ignasiak predicts. "e
interesting thing is how you value that."
And that, he says, will only be determined
by future jurisprudence. Until then, infra-
structure developers will have only lim-
ited guidance as to the size of liabilities
they're shouldering.
Smith says he doesn't see the $1-billion
absolute liability becoming a huge barrier
for major pipeline companies launching
new projects. Insurance or letters of credit
will be allowed as proofs of financial cap-
acity. But big pipeline companies will likely
use their substantial internal resources to
self-insure rather than pay annual insur-
ance premiums that might easily exceed the
$1-billion mark in a handful of years.
Krista Hill, a nuclear-industry expert
with Torys LLP in Toronto, says the re-
sponse will likely be different among public
utilities, which will "definitely" require in-
creased insurance or other security to offset
the risks of increased absolute liability. But
Hill adds that the Energy Safety and Secur-
ity Act has been welcomed by the nuclear
industry, whose governing safety legislation
was decades old. "e structure of the old
act was similar, but the amount of the abso-
lute liability has been increased to keep it in
line with international norms and conven-
tions," she says.
"e Act channels liability to the oper-
ator" of a nuclear facility, aligns with inter-
national standards and enables Canada to
sign onto the International Convention on
Supplementary Compensation for Nuclear
Damages, governing cross-border liabilities.
Smith reckons the $1-billion absolute
liability could constitute a significant bar-
rier to smaller pipeline companies promot-
ing larger projects. But he says pipeline de-
velopment applications have for many years
"THE STRUCTURE
OF THE OLD [ENERGY
SAFETY] ACT WAS SIMILAR,
BUT THE AMOUNT OF
THE ABSOLUTE LIABILITY
HAS BEEN INCREASED
TO KEEP IT IN LINE WITH
INTERNATIONAL NORMS
AND CONVENTIONS."
– Krista Hill, Torys LLP
