Lexpert Special Editions

Special Edition on Litigation -December 2015

The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.

Issue link: https://digital.carswellmedia.com/i/597165

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Page 34 of 43

Rook, QC, John F. Bennett Jones LLP (416) 777-4885 rookj@bennettjones.com Mr. Rook specializes in commercial, administra- tive and competition law litigation, and appears in the courts and before administrative tribunals throughout Canada. He is recognized among the most sought-after competition litigators in Canada. Rudakoff, QC, Alan Norton Rose Fulbright Canada LLP (403) 267-8270 alan.rudakoff@nortonroseful- bright.com Mr. Rudakoff practises in the tort/liability and insurance defence fields. He acts in the defence of complex commercial claims, including product liabil- ity, commercial liability, professional negligence and serious personal injury/wrongful death. Saint-Onge, AdE, Jean Lavery, de Billy, L.L.P. (514) 877-2938 jsaintonge@lavery.ca Mr. Saint-Onge's prac- tice focuses on class actions, product liability, competition and en- vironmental law. He has represented major cor- porations in multijuris- dictional, cross-border class actions; Fellow, Litigation Counsel of America. Rothstein, LSM, Linda R. Paliare Roland Rosenberg Rothstein LLP (416) 646-4327 linda.rothstein@paliareroland. com Ms. Rothstein's civil and administrative practice focuses on class actions, commer- cial litigation, profes- sional liability, public law, employment and human rights, judicial reviews and appeals. She is also a mediator and arbitrator. Russell, QC, Charles P. McLennan Ross LLP (780) 482-9115 crussell@mross.com Mr. Russell has more than 35 years of experience involving corporate restructuring and reorganizations, receiverships and bank- ruptcies. His practice also includes advising lenders on methods of securitizing loans. Samworth, Philippa G. Dutton Brock LLP (416) 539-4411 psamworth@duttonbrock. com Ms. Samworth's area of practice is insurance defence (Accident Bene- fits) and mediation and arbitration services. She was the recipient of the Advocates' Society Med- al in 2014 and inducted into the American Col- lege of Trial Lawyers in 2007. On the Case | 35 sured that the mere fact that they have expended costs in the usual course of business will result in those costs being auto- matically recoverable. "e proposition that the regulators adopted in these cases was that utilities weren't going to be allowed a return on investment that wouldn't yield a return in a competitive marketplace," says Chris Sanderson in the Toronto office of Lawson Lundell LLP. "So if a utility or other regulated entity enters into a contract with a union that grants wages or benefits that can't be recovered in the mar- ketplace, or in facilities that are no longer useful, it's going to be tough luck for them." It could also be tough luck for unions, who might face more en- trenched bargaining positions from employers that are suddenly uncer- tain as to the extent to which their negotiated costs can be recovered. For the past decade, utilities have been arguing, with some success in the lower courts, that regulators need to use a more restrained model when examining costs that have already been incurred or committed. According to Zacher, Atco and OPG "put the genie back in the bottle" in terms of the latitude that courts will accord to regulators. "For the past decade – in the energy space at least – utili- ties have been challenging that latitude by trying to exploit cases where regulators have used tools like the prudent in- vestment test to constrain review of past or committed costs, typically large capital expenditures that the utilities had to absorb," he says. "What the Supreme Court did was to close the door on that argument." Challenging regulatory decisions of this kind will prove more difficult for another reason: in the twin decisions, the court also confirmed for the first time that regulators have the right to appear on appeal to defend their own decision. "Although whether this is appropriate must be deter- mined on a case-by-case basis, it is now the general rule that regulatory tribunals have the right to defend their decisions where they have been acting a regulatory, policy-making role rather than in an adjudicative fashion," says Zacher. "e clarification from the high court is important. Before there were both Federal Court and provincial superior court deci- sions that were at odds with that proposition." However all this may be, Zacher says that Atco and OPG do not effect a profound change in the law, merely settling what he calls "some uncertainty" that existed in the lower courts. "e impact would have been much more significant if the rul- ings had gone against the regulators because it would have handcuffed them," he says. e decision, then, should also provide some comfort for those concerned about the proposed privatization of public utilities like Hydro One in Ontario. "ese decisions reinforce the importance, integrity and robustness of regulators' oversight role regardless of whether utilities or other regulated companies are publicly or private- ly owned," Zacher says. GLENN ZACHER > STIKEMAN ELLIOTT LLP CHRIS SANDERSON > LAWSON LUNDELL LLP

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