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PUBLIC UTILITIES - Provincial boards, tribunals and commissions

Friday, August 23, 2019 @ 6:34 AM  


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Application by Equs for leave to appeal a decision of the Alberta Utilities Commission. The applicant was a rural electrification association which supplied electric energy in rural areas to its members. The respondent was a public distribution utility which entered into municipal franchise agreements that granted it the exclusive right to provide electric distribution service within the municipalities’ corporate limits. As a result of the expansion of the corporate boundaries of some municipalities through annexation, the service areas governed by some of the respondent’s municipal franchise agreements now overlapped with the applicant’s existing service areas. In 2016, the respondent applied to the Commission for an alteration of service areas to coincide with its exclusive service areas under the franchise agreements. The Commission granted the application to alter those service areas that currently overlapped with the municipal franchise areas granted to the respondent such that the respondent now had the exclusive right to provide electrical distribution services in areas which had been served by the appellant. The appellant’s existing service areas and customers were, however, grandfathered as the Commission concluded that the appellant’s existing facilities in overlapping areas would eventually transition to the respondent because of the altered service areas. The applicant argued that the Commission erred by failing to consider and interpret relevant sections of the Municipal Government Act, by failing to give effect to the principle of statutory coherence, and that the Commission erred in jurisdiction by using its public interest discretion and service area orders to alter express rights and powers conferred on parties in other related legislation.

HELD: Application dismissed. None of the proposed grounds of appeal raised arguable questions of law or jurisdiction. The Commission’s decision was directly within the ambit of the Commission’s expertise. Given the standard of appellate review, the alleged error of the Commission in failing to specifically discuss certain provisions of the Municipal Government Act and the Regulations did not merit an appeal to this court. The Commission noted that it must ascertain the public interest first by reference to the legislative scheme and most particularly what the legislature intended. It looked at how these statutes worked together and determined the public interest on this basis. There was no merit to the ground of appeal regarding statutory coherence, given the appellate deference owed to the Commission in determining the public interest. The Hydro and Electric Energy Act expressly conferred jurisdiction on the Commission to alter service area boundaries when it was in the public interest to do so. This was precisely what the Commission did. There was no arguable merit to the submission that the Commission exceeded its jurisdiction in this case.

EQUS REA Ltd. v. Alberta (Utilities Commission), [2019] A.J. No. 917, Alberta Court of Appeal, P.A. Rowbotham J.A., July 11, 2019. Digest No. TLD-August19019010