14 LEXPERT
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2017
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WWW.LEXPERT.CA
Drance, Jonathan S. Stikeman Elliott LLP
(604) 631-1361 jdrance@stikeman.com
Mr. Drance specializes in project development and financing with a focus on
M&A, capital markets and infrastructure. He has acted for Canfor, Bentall,
Terasen, Duke Energy and more. He has also served on the Board of BC Hydro
and at various times, as Chair of the Corporate Governance Committee and
its Capital Projects Committee. He writes extensively on corporate governance
and fiduciary duties.
Donald, Danna Osler, Hoskin & Harcourt LLP
(416) 862-4214 ddonald@osler.com
Ms. Donald's practice focuses on project finance, including social and
transportation infrastructure, renewable energy, public-private partnerships, and
syndicated and acquisition loan facilities. She has led Osler's commercial team
in providing advisory services on many infrastructure and energy transactions
including the debt and equity financing of some of Canada's largest wind and
solar projects
Desbarats, QC, Robert P. Osler, Hoskin & Harcourt LLP
(403) 260-7015 rdesbarats@osler.com
Mr. Desbarats is a corporate and commercial lawyer whose practice primarily
involves commercial transactions relating to all aspects of the Canadian and
international upstream and midstream oil and gas, oil sands and liquefied
natural gas businesses, including acquisitions and divestitures, joint ventures,
power, upstream and midstream oilfield activities and marketing arrangements.
Dépelteau, Jean-Pierre Dentons Canada LLP
(514) 878-8814 j-p.depelteau@dentons.com
Mr. Dépelteau is a member of the Construction and Infrastructure group of
Dentons Canada LLP's Montréal office, with over 40 years of experience in
the construction industry. He provides legal and strategic advice to a variety
of public, semi-public and private-sector owners, as well as construction
contractors, specialized construction companies and equipment suppliers.
Denstedt, QC, Shawn H.T. Osler, Hoskin & Harcourt LLP
(403) 260-7088 sdenstedt@osler.com
Mr. Denstedt practises environmental, regulatory and Aboriginal law in the
energy, mining and natural resources areas. He appears regularly before
provincial and federal tribunals.
DeMarco, Lisa (Elisabeth) DeMarco Allan LLP
(647) 991-1190 lisa@demarcoallan.com
Ms. DeMarco is a world-leading energy and climate change lawyer. She
represents governments, banks, multinational energy companies and industry
associations on regulatory, policy, storage, renewables, pipeline, First Nations
and related matters. She regularly appears before regulators including the
National Energy Board and Ontario Energy Board, and has addressed the
UNFCCC plenary.
LEXPERT-RANKED LAWYERS
to be a re-thinking of the licensee management scheme
that the AER uses. "e only way the existing scheme
works, when comparing deemed assets to deemed li-
abilities, is on the assumption that those deemed liabili-
ties will not become detached from those deemed assets
at the most critical juncture, upon an insolvency."
According to Antonopoulos, the only other way the
situation can be addressed from a government stand-
point, in his view, is for the federal government to enact
amendments to the Bankruptcy and Insolvency Act —
amendments that ensure that the "polluter pay" prin-
ciple is enshrined in a way that assures it is given a super-
priority status over the claims of secured creditors.
Osler's Buckingham adds, "Parliamentary resolution
of the purported conflict is appropriate if the court de-
clines to grant leave or determines not to reframe the
issues to permit parallel application of federal and pro-
vincial laws that preserves the application of the 'pol-
luter pays' principle."
In addition, says Melanie Gaston, also an Osler part-
ner in Calgary, if Parliament does not correct legisla-
tively, it seems contrary to the general policy underlying
the environmental framework in Canada and would
undermine efforts to have licensees deal responsibly
with environmental obligations by prioritizing credi-
tors' rights.
"It would be more consistent to have creditor pres-
sure on debtor licensees to deal with environmental
obligations than what this decision suggests," Gaston
explains. "A policy conflict arises where it is contrary to
the interest of creditors for debtors to meet their envi-
ronmental obligations."
Still, says Antonopoulos, the fact of the matter is
that the Alberta Energy Regulator, with this decision
in hand, having lost in the appeal courts, is not going
to sit on the sidelines. In his view, it can be anticipated
that the AER "won't just allow this operational con-
flict to continue to exist such that the province and the
public of Alberta would continue to be at risk for these
abandonment obligations — through tactics taken by
trustees in bankruptcy to renounce valueless properties
or properties that have a negative asset value because of
the environmental liabilities, so that they can sell off the
assets that are still valuable."
Where the owner of the assets
is not in a strong financial position,
secured lenders and potential asset
acquirers may be better served to await
the bankruptcy … [and] 'cherry-pick'
the better assets without the financial
detriment of the less desirable assets …"
- Christopher Nixon,
Stikeman Elliott LLP
"
