ATCO Electric Ltd. v. Energy and Utilities Board (Alta.)

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Côté, Wittmann and Costigan, JJ.A.
• Citation: (2004), 357 A.R. 21 (CA),2004 ABCA 254
• Date: 16 August 2004

ATCO Electric Ltd. v. EUB (2004), 357 A.R. 21 (CA);

    334 W.A.C. 21

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. SE.004

In The Matter Of the Public Utilities Board Act, R.S.A. 1980, c. P-37 (PUBA), the Alberta Energy and Utilities Board Act, R.S.A. 1994, c. A-19.5, and the Electric Utilities Act, S.A. 1995, c. E-5.5 (EUA);

And In The Matter Of an application by ATCO Electric Ltd. (ATCO Electric) for approval of the Regulated Rate Option Tariff;

And In The Matter Of an application for review and variance, dated March 8, 2001, by ATCO Electric pursuant to s. 56 of the PUBA and s. 57 of the EUA;

And In The Matter Of a letter from the Alberta Energy and Utilities Board, dated July 30, 2001.

ATCO Electric Ltd. (appellant) v. Alberta Energy and Utilities Board (respondent)

(01-00330)

In The Matter Of the Public Utilities Board Act, R.S.A. 2000, c. P-45, the Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17, and the Electric Utilities Act, R.S.A. 2000, c. E-5;

And In The Matter Of applications by ATCO Electric Ltd. for approval of the 2002 Regulated Rate Option Tariff;

And In The Matter Of Alberta Energy and Utilities Board Decision 2002-085, dated September 24, 2002.

ATCO Electric Ltd. (appellant) v. Alberta Energy and Utilities Board (respondent)

(0201-0309-AC)

(2004 ABCA 254)

Indexed As: ATCO Electric Ltd. v. Energy and Utilities Board (Alta.)

Alberta Court of Appeal

Côté, Wittmann and Costigan, JJ.A.

August 16, 2004.

Summary:

ATCO Electric Ltd., an electricity distribution company, applied to the Alberta Energy and Utilities Board (AEUB) for approval of its Regulated Rate Option Tariff (RROT) for the year 2001. As a non-energy component of the RROT, ATCO requested a $4.6 million management fee to compensate for providing the Regulated Rate Option service. The AEUB rejected the management fee. ATCO applied for a review and variation of the decision but the AEUB denied the review. ATCO obtained leave to appeal the refusal to review and vary (299 A.R. 337) (i.e., respecting Decision 2000-88). Thereafter, ATCO applied for approval of a RROT for 2002 and again sought to include a management fee of $2,500,000. In Decision 2002-085, the AEUB again refused to include the management fee. Leave to appeal Decision 2002-085 was also granted ([2003] A.R. Uned. 15). Both appeals were heard together, raising issues involving the AEUB's discretion to review and vary its decisions, the interpretation of its constituent legislation, and its assessment of the evidence before it.

The Alberta Court of Appeal dismissed the appeals, holding that ATCO failed to show any basis for the court to intervene in the decisions of the AEUB.

Public Utilities - Topic 4665

Public utility commissions - Regulation - Rates - Considerations in fixing rates - Inclusion of management fees as non-energy component of tariff - ATCO Electric Ltd., an electricity distribution company, applied to the Alberta Energy and Utilities Board (AEUB) for approval of its Regulated Rate Option Tariff (RROT) for 2001 and 2002 - As a non-energy component of the RROT, ATCO requested a $4.6 million management fee to compensate for providing the Regulated Rate Option service for 2001 and $2.5 million for 2002 - The AEUB rejected the management fee for both years in two separate decisions and refused to vary its decisions - ATCO appealed both decisions - The Alberta Court of Appeal discussed the standard of review applicable to the various components of the AEUB's decisions - The court dismissed the appeals, finding no basis for interference with the AEUB's decisions in this case.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 24].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Minister of National Revenue (Customs and Excise) v. Mattel Canada Inc., [2001] 2 S.C.R. 100; 270 N.R. 153; 2001 SCC 36, refd to. [para. 25].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al., [2003] 1 S.C.R. 476; 304 N.R. 1; 225 D.L.R.(4th) 206, refd to. [para. 25].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 26].

Pezim v. Superintendent of Brokers (B.C.) - see Pezim v. British Columbia Securities Commission et al.

ATCO Electric Ltd. v. Energy and Utilities Board (Alta.) (2004), 361 A.R. 1; 339 W.A.C. 1; 2004 ABCA 215, refd to. [para. 27].

National Corn Growers' Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81, refd to. [para. 30].

TransAlta Utilities Corp. v. Public Utilities Board (Alta.) (1986), 68 A.R. 171 (C.A.), refd to. [para. 31].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 32].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 34].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, refd to. [para. 35].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 35].

Counsel:

L.G. Keough, for the appellant;

J.P. Mousseau and A.E. Domes, for the respondent.

These appeals were heard on May 20, 2004, before Côté, Wittmann and Costigan, JJ.A., of the Alberta Court of Appeal.

The following memorandum of judgment was delivered by the court on August 16, 2004.