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PUBLIC UTILITIES - Regulatory tribunals - Licensing and rate-making

Friday, August 28, 2020 @ 5:48 AM  


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Application by FortisAlberta, a public utility, for leave to appeal a decision of the Alberta Utilities Commission relating to costs claims to be included in a Distribution Tariff presented for approval to the Board by the applicant. The disputed costs related to operations in areas where Rural Electrification Associations and the applicant shared facilities due to the interconnectedness of the system. The applicant argued these costs were incurred by it in the overlapping and linked operations with each Rural Electrification Association and that each Association was the beneficiary of a service from the applicant and should be regarded as a customer of the applicant for tariff purposes. The Commission held it did not have the statutory authority to approve, under the Phase II Distribution Tariff Application process being then followed by the applicant, a form of recovery by the applicant of costs described by the applicant as integrated distribution system costs. The Commission effectively found that the Legislature disposed of the idea that a Distribution Tariff for the applicant could include costs it claimed to incur because of its contractual relationships with the Associations who were not customers. The applicant sought leave to appeal on the question of whether the Commission erred in ruling that it did not have the authority to approve the recovery of the distribution costs the applicant proposed to allocate to, and to recover from, the Rural Electrification Associations.

HELD: Application dismissed. The proposed question for appeal was not prima facie meritorious. The applicant did not show a prima facie basis for it to argue that the Commission was wrong in its crucial conclusion as to the disputed costs. It was not arguable that the Commission was incorrect in attaching significance to the fact that the Associations were not customers of the applicant or that the Commission misconceived the indicia from the legislation about where to find the harmony in and between the statutes and the Roles, Relationships and Responsibilities Regulation. The court was not persuaded that a panel of this court would instruct the Commission to ignore considerations relevant to alternatives for recovery of prudent costs.

FortisAlberta Inc. v. Alberta (Utilities Commission), [2020] A.J. No. 769, Alberta Court of Appeal, J. Watson J.A., July 21, 2020. Digest No. TLD-August242020010