Executive Summary: Key Legal and Evidentiary Issues

• Both the Attorney General of Canada and the Attorney General of Alberta brought competing applications arising from questioning on affidavits conducted in February 2026 regarding the Clean Electricity Regulations.

• Canada sought to mark five documents as exhibits and compel AESO witnesses Adam Gaffney and Kevin Dawson to re-attend for further questioning on Alberta's Restructured Energy Market.

• Alberta challenged the admissibility of Parts G and H of Dr. Pascal Lesage's affidavit and sought to compel him to answer outstanding undertakings and re-attend for cross-examination.

• Privilege concerns led Canada to withdraw its pursuit of qualifying Dr. Lesage as an independent expert and to concede that Part G of his affidavit was inadmissible.

• None of the five documents Canada sought to mark as exhibits were admitted, as witnesses indicated they were unfamiliar with them or had only received high-level summaries.

• The Court modified the procedural schedule, setting a four-day hearing of the Reference for November 16 to 19, 2026.

Background of the reference proceedings

This decision arises from an ongoing reference before the Court of Appeal of Alberta concerning the Clean Electricity Regulations, SOR/2024-263, made under the Canadian Environmental Protection Act, 1999. The Lieutenant Governor in Council of Alberta referred the matter to the Court of Appeal under section 26 of the Judicature Act. The proceedings involve the Attorney General of Alberta as the appellant and the Attorney General of Canada as the respondent, with several intervenors including the Attorneys General of Ontario, Quebec, and Saskatchewan, as well as the Athabasca Chipewyan First Nation, Clean Energy Canada, the David Suzuki Foundation, and the Pembina Institute for Appropriate Development.

Questioning on affidavits and the key witnesses

Between February 6 and 11, 2026, both sides conducted questioning on affidavits of key witnesses. Canada's counsel examined Adam Gaffney, the Manager of Generation Forecasting and Resource Adequacy at the Alberta Electric System Operator (AESO), whose affidavit addressed modeling related to the Clean Electricity Regulations. Canada also examined Kevin Dawson, the Vice President of Strategy and Chief Economist at AESO, whose affidavit focused on the reliability implications of the Clean Electricity Regulations. On the other side, Alberta's counsel examined Dr. Pascal Lesage, the acting head of the Modeling and Analytics for Policy Support Unit of the Electricity and Combustion Division of Environment and Climate Change Canada's Environmental Protection Branch.

Canada's application regarding AESO witnesses and exhibit requests

In its application of March 9, 2026, Canada sought orders to have five documents presented to Gaffney and Dawson during their questioning marked as exhibits. Canada also sought an order extending the deadline for completing all questioning on affidavits and requiring both AESO witnesses to re-attend at their own expense for further questioning about Alberta's Electric System Operator's Restructured Energy Market, broadly. In the alternative, Canada requested that each witness re-attend to answer specific questions listed in schedules C and D of its application, along with follow-up questions.

Alberta's application regarding Dr. Lesage

Alberta filed its own application on March 19, 2026, seeking orders to either have Canada file a redacted version of Volume 2 of its Record removing Parts G and H of the Lesage affidavit, or alternatively to direct Dr. Lesage to provide answers to the undertakings set out in its appendix. Alberta further sought to compel Dr. Lesage to answer undertaking #1 given during his February 11, 2026 questioning, to provide a further and better response to undertaking #19, and requested that he re-attend for cross-examination on any matter relevant to the Reference proceedings. During oral submissions, Alberta withdrew its request for an answer to undertaking #1 and to the question posed at page 83, lines 12 to 15 of his transcript.

Canada's concessions on privilege and expert status

A significant turning point came on March 13, 2026, when Canada advised Alberta that upon reviewing Dr. Lesage's undertakings #1 through #14, it did not wish to waive privilege over information contained in documents responsive to those undertakings. As a consequence, Canada indicated it would no longer seek to have Dr. Lesage qualified as an independent expert and accepted that Part G of the Lesage affidavit was inadmissible. However, Canada maintained that Part B should be left for the Reference panel's determination as to admissibility.

The Court's orders on evidentiary and procedural matters

Justice Feehan issued several orders resolving the competing applications. Canada was directed to withdraw the current filed affidavit of Dr. Lesage and refile the affidavit, leaving his status only as a participant expert witness. The refiled affidavit was required to replace the title "Affidavit and Expert Report" simply with the title "Affidavit," delete Part G entirely, strip from Parts A to F and H and elsewhere as necessary any references to it being an expert report or to Dr. Lesage as being an "expert witness providing opinion evidence," and make specific deletions from paragraphs 16(vi), 74, and Section H. Regarding Canada's request to mark five documents as exhibits, the Court denied all five because in each case the witness indicated they did not recognize the document, were not familiar with the document, or had not read the document in full or sometimes at all. The Court noted, however, that the witnesses commonly stated they would have received a "high-level summary or an overview" of the document, and ordered that all such high-level summaries or overviews shall be produced.

Re-attendance and scope of further questioning

The Court ordered Adam Gaffney and Kevin Dawson to re-attend at their own expense for questioning on the produced high-level summaries or overviews and to answer questions listed in Canada's schedules C and D, along with follow-up questions arising from the answers provided. Importantly, the witnesses were not required to inform themselves of any information not within their personal knowledge, and the follow-up sessions were to be held virtually, not exceeding one half day for each of Adam Gaffney and Kevin Dawson. Dr. Lesage was directed to provide an unedited copy of the fourth document provided by him on February 11, 2026 in response to undertaking #19—"an internal document provided of a summary of changes made to NextGrid, which was used to inform ECCC Senior Management about the changes made as a result of engagement"—referred to in argument as the 2024 Internal MAPS Analysis, dated August 16, 2024. He may be questioned restricted to that document, but the questioning may not extend, as requested by Alberta, to "any matter relevant to these Reference proceedings." His follow-up questioning was similarly to be held virtually and not to exceed one half day.

Ruling and modified schedule

Justice Feehan's decision, heard on March 31, 2026, and filed at Edmonton, Alberta on April 2, 2026, partially granted and partially denied both parties' applications. Neither side obtained the full scope of relief sought: Canada did not succeed in marking its proposed exhibits and did not obtain a broad re-examination of AESO witnesses on the Restructured Energy Market generally, while Alberta did not secure an unrestricted cross-examination of Dr. Lesage on all Reference matters. The Court modified the procedural schedule, setting key deadlines including Canada to file and serve its Factum by May 16, 2026, intervenors to file and serve their Facta by June 12, 2026, reply Facta by July 24, 2026, and a four-day hearing of the Reference scheduled for November 16 to 19, 2026. No monetary award was at issue or determined, as this was a procedural and evidentiary ruling in the context of the ongoing Reference proceedings.