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PUBLIC UTILITIES - Operation of utility - Facilities - Approval

Friday, February 15, 2019 @ 8:40 AM  

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Application by several landowners for permission to appeal a decision by the Alberta Utilities Commission approving a wind farm development. EDP Renewables sought approval for a wind farm development project comprised of 83 wind turbines and a substation. The applicants owned land near the project and opposed its approval based on the proximity of the wind turbines to three nearby private airstrips. One week prior to the hearing, EDP filed reply evidence totaling 892 pages. The applicants requested a one-week adjournment to review the evidence and prepare their expert witnesses. EDP withdrew 693 pages, indicating they had been filed by mistake. The Commission granted a one-day adjournment. At the hearing, EDP relied upon expert evidence and the Commission considered written referral reports prepared by Alberta Environment and Parks (AEP). The Commission refused the applicants' request to exclude the expert evidence. The Commission approved the project, concluding that the project was sufficient distance from the airstrips to permit the airstrips to operate safely. The applicants sought permission to appeal.

HELD: Application dismissed. The criteria for permission to appeal based on a denial of procedural fairness were not established. There was no merit to the applicants' contention that they did not have adequate time to prepare or that the Commission’s decision to grant merely a one-day adjournment was unfair. The Commission did not breach the duty of procedural fairness in considering the AEP reports in rendering its decision. AEP was an independent and impartial government body. The applicant had a prior opportunity to submit questions to AEP. In receiving and evaluating the evidence from AEP and EDP's experts, the Commission followed its own rules of practice and procedure. With respect to the ruling on the merits, the Commission’s conclusion that the placement of the turbines did not create a risk to public safety was a question of mixed fact and law. As a result, the applicants failed to raise a serious arguable issue of law or jurisdiction arising from the Commission’s interpretation of the Transport Canada aviation guidelines.

Blair v. Alberta (Utilities Commission), [2018] A.J. No. 1557, Alberta Court of Appeal, J.D.B. McDonald J.A., December 21, 2018. Digest No. TLD-February112019009