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
