Alberta Power Ltd. et al. v. Public Utilities Board (Alta.) et al., (1990) 102 A.R. 353 (CA)

• Judge: McClung, Stevenson and Stratton, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 14, 1990
• Citations: (1990), 102 A.R. 353 (CA)

Alta. Power Ltd. v. PUB (1990), 102 A.R. 353 (CA)

MLB headnote and full text

In the Matter of Decision E89004 of the Public Utilities Board relating to the setting of prices at which Alberta Power Limited, the City of Edmonton and TransAlta Utilities Corporation shall sell Electric Energy to the Electric Energy Marketing Agency for the year 1989; And in the Matter of the Electric Energy Marketing Act, S.A. 1981, c. E-4.1, as amended; And in the Matter of the Hydro and Electric Energy Act, R.S.A. 1980, c. H-13, as amended; And in the Matter of the Public Utilities Board Act, R.S.A. 1980, c. P-37, as amended; Alberta Power Limited, TransAlta Utilities Corporation and City of Edmonton (appellants) v. The Alberta Public Utilities Board (respondent) and Industrial Power Consumers Association of Alberta, the City of Calgary, Cominco Ltd., Manville Canada Inc. and Western Canada Steel (respondents/intervenors)

(Appeal Nos. 8903-0180-AC; 8903-0159-AC; 8903-0163-AC)

Indexed As: Alberta Power Ltd. et al. v. Public Utilities Board (Alta.) et al.

Alberta Court of Appeal

McClung, Stevenson and Stratton, JJ.A.

February 14, 1990.

Summary:

The Public Utilities Board (Alta.), pursuant to s. 13.1 of the Electric Energy Marketing Act, fixed prices at which Alberta Power Ltd., the City of Edmonton and TransAlta Utilities Corp. (the utilities) shall sell electricity to the Electric Energy Marketing Agency for the year 1989. The utilities appealed under s. 62 of the Public Utilities Board Act. An intervenor challenged the court's jurisdiction to hear an appeal on the ground that it was premature.

The Alberta Court of Appeal held that it had jurisdiction and dismissed the appeal.

Estoppel - Topic 388

By record (res judicata) - As a bar to subsequent proceedings - Decisions of administrative tribunals - The Energy Resources Conservation Board approved a generating facility and established a commissioning date - The facility owner submitted that res judicata applied to preclude the Public Utilities Board from concluding that the facility was not "used or required to be used" in the relevant year - The Alberta Court of Appeal held that the applicable principle was issue estoppel, not res judicata, but that issue estoppel did not apply in this case - The decision of the Energy Resources Conservation Board that a facility was needed in the future was based in part on energy load and capacity forecasts, and was not final and binding (i.e. open to recommendation and review) - The Public Utilities Board was not estopped from determining whether a facility was needed in a particular year, especially where its decision was made on updated information and the parties were not the same (i.e. the element of public interest was involved in the latter's decision) - See paragraphs 38 to 43.

Public Utilities - Topic 4647

Public utility commissions - Regulation - Power to regulate municipally owned utility - The Public Utilities Board, in fixing the price at which electricity producers had to sell electricity to the Electric Energy Marketing Agency, applied the base rate method in s. 82 of the Public Utilities Board Act - Accordingly, only costs relating to facilities "used or required to be used to provide service to the public" in the applicable year were included in the base rate - A utility claimed that the Board should have included all prudent costs actually incurred by the utility - The Alberta Court of Appeal held that the Board's jurisdiction to employ the rate base method in s. 82(1) was impliedly derived from the legislation - The court held that s. 82(1) also applied to fix prices that municipally owned utilities were to receive from the Agency - See paragraphs 10 to 26.

Public Utilities - Topic 4648

Public utility commissions - Regulation - Effect of decisions of other regulatory bodies - The Hydro and Electric Energy Act empowered the Energy Resources Conservation Board to regulate the development, construction and operation of generating plants and transmission lines - The Board approved construction of a generating plant in the public interest, a decision that the facility was needed in the future - The Public Utilities Board had jurisdiction to determine whether a facility was "used or required to be used" in a given year, for the purpose of fixing the price at which producers had to sell their electricity to the Electric Energy Marketing Agency - The Alberta Court of Appeal held that a decision by the Energy Resources Conservation Board in 1985 approving construction of a facility as needed in 1989, did not oust the Public Utilities Board's jurisdiction to determine whether the facility was "used or required to be used" in 1989 - See paragraphs 27 to 37.

Public Utilities - Topic 4665

Public utility commissions - Regulation - Rates - Considerations in fixing - Rate base method - [See Public Utilities - Topic 4647 above].

Public Utilities - Topic 4742

Public utility commissions - Judicial review - Appeals - Jurisdiction - The Public Utilities Board made a decision under s. 13.1 of the Electric Energy Marketing Act fixing the prices at which three electrical power producers were to sell electricity to the Electric Energy Marketing Agency for the year 1989 - Section 13.2(1) of the Act provided for a review by the Board, therefore, the decision was not final - An intervenor submitted that the court had no jurisdiction under s. 62 of the Public Utilities Board Act to hear an appeal until the decision was reviewed or the time for review had passed - The Alberta Court of Appeal held that it had jurisdiction to hear the appeal notwithstanding the existence of an internal review - See paragraphs 4 to 9.

Words and Phrases

Used or required to be used - The Alberta Court of Appeal defined the phrase "used or required to be used", as found in s. 82(1) of the Public Utilities Board Act, R.S.A. 1980, c. P-37.

Cases Noticed:

Red Deer (City) and Town of Jasper Place (City of Edmonton) v. Calgary Power Ltd. (1966), 56 W.W.R.(N.S.) 725 (Alta. S.C.A.D.), refd to. [para 8].

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 1 All E.R. 208 (H.L.), refd to. [para. 14].

Alberta Gas Trunk Line Co. Ltd. v. Amoco Canada Petroleum Co. Ltd. et al., [1980] 3 W.W.R. 1; 20 A.R. 384 (C.A.), appld. [para. 22].

TransAlta Utilities Corp. v. Public Utilities Board (Alta.) (1986), 68 A.R. 171 (C.A.), refd to. [para. 29].

Union Gas Ltd. v. Township of Dawn (1977), 76 D.L.R.(3d) 613 (Ont. D.C.), refd to. [para. 29].

Ottawa v. Eastview and Rockcliffe Park, [1941] 4 D.L.R. 65 (S.C.C.), refd to. [para. 29].

Toronto Ry. Co. v. Paget (1909), 42 S.C.R. 488, refd to. [para. 31].

Philadelphia Electric Company v. Pennsylvania Public Utility Commission (1981), 433 A.2d 620, refd to. [para. 34].

Northwestern Utilities Limited v. City of Edmonton (1978), 23 N.R. 565; 12 A.R. 449; 7 Alta. L.R.(2d) 370 (S.C.C.), refd to. [para. 34].

Abacus Cities Ltd. (Bankrupt) v. Bank of Montreal, [1988] 1 W.W.R. 78; 80 A.R. 254 (C.A.) leave to appeal refused [1988] 2 W.W.R. 1 xvi; 85 A.R. 160, refd to. [para. 38].

Hoystead v. Commissioner of Taxation, [1926] A.C. 155, refd to. [para. 38].

Bailey v. Guaranty Trust Company of Canada (1987), 77 A.R. 387 (C.A.), refd to. [para. 38].

Angle v. Minister of National Revenue (1974), 2 N.R. 397; 47 D.L.R.(3d) 544, refd to. [para. 39].

Central Maine Power Company v. Public Utilities Commission et al. (1981), 433 Atl. R. (2nd) 331, refd to. [para. 50].

British Columbia Hydro & Power Authority v. West Coast Transmission Co. Ltd. et al. (1981), 36 N.R. 33 (F.C.A.), refd to. [para. 51].

Canada Lift Truck Co. Ltd. v. Deputy Minister of National Revenue for Customs and Excise (1956), 1 D.L.R.(2d) 497, refd to. [para. 67].

Statutes Noticed:

Electric Energy Marketing Act, S.A. 1981, c. E-4.1, sect. 13.1(1), sect. 13.1(2), sect. 13.2, sect. 14 [Appendix A]; sect. 16(2)(l) [para. 15].

Hydro and Electric Energy Act. R.S.A. 1980, c. H-13, sect. 2 [Appendix A]; sect. 3 [para. 27]; sect. 7(2) [para. 36]; sect. 9 [para. 27]; sect. 9(3) [para. 36]; sect. 12, sect. 14, sect. 17, sect. 18 [para. 27]; sect. 18(1) [para. 36, Appendix A]; sect. 18(2)(c) [Appendix A]; sect. 20 [para. 27]; sect. 24, sect. 27(1) [para. 36].

Public Utilities Board Act, R.S.A. 1980, c. P-37, sect. 28(1), sect. 28(2) [Appendix A]; sect. 30 [para. 44]; sect. 62(1) [para. 1]; sect. 70(1), sect. 70(2), sect. 80 [Appendix A]; sect. 82(1) [para. 10].

Public Utilities Board Act Regulations, Alta. Reg. 405/84, sect. 5(1) [Appendix A]; sect. 5(5), sect. 5(6) [para. 15, Appendix A]; sect. 17.3(1) [Appendix A]; sect. 17.3(2) [para. 16, Appendix A].

Authors and Works Noticed:

Côté, The Interpretation of Legislation in Canada (1984), pp. 269, 224 [para. 31].

Dreidger, E.A., Construction of Statutes (2nd Ed. 1983), p. 66 [para. 31].

Maxwell on Interpretation of Statutes (12th Ed. 1968), p. 68 [para. 17].

Used and Useful: Autopsy of a Ratemaking Policy (1987), 8 Energy Law Journal 303 [para. 49].

Counsel:

G.A. Verville, Q.C., and G.A. Salembier, for the appellant, the City of Edmonton;

A. Lapko, for the respondent, the Alberta Public Utilities Board;

L.J. MacLean, for the respondents, Cominco Ltd., Manville Canada Inc. and Western Canada Steel;

J.B.D. Malone, Q.C., and T. Dalgleish, for the appellant, TransAlta Utilities Corporation;

J.C. Major, Q.C., and M.D. Romanow, for the appellant, Alberta Power Limited;

A.L. McLarty, for the Independent Power Consumers Association;

R.F. Goss and D.D. Short, for the City of Calgary.

This appeal was heard before McClung, Stevenson and Stratton, JJ.A., of the Alberta Court of Appeal.

On February 14, 1990, the following judgment was delivered by the court: