ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.) et al., (2008) 433 A.R. 183 (CA)

• Judge: McFadyen, Hunt and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 09, 2008
• Citations: (2008), 433 A.R. 183 (CA);2008 ABCA 200

ATCO Gas & Pipelines Ltd. v. EUB (2008), 433 A.R. 183 (CA);

      429 W.A.C. 183

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.095

ATCO Gas and Pipelines Ltd. (appellant) v. Alberta Energy and Utilities Board (respondent) and The City of Calgary and Utilities Consumer Advocate (interested parties)

(0501-0102-AC; 0501-0171-AC; 0701-0048-AC; 2008 ABCA 200)

Indexed As: ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.) et al.

Alberta Court of Appeal

McFadyen, Hunt and Slatter, JJ.A.

May 27, 2008.

Summary:

ATCO appealed, with leave (see [2007] A.R. Uned. 319), in respect of certain issues raised by three decisions of the Alberta Energy and Utilities Board. The issues were: (1) Did the Board err in law or jurisdiction when it included ATCO's Carbon storage facilities in the rate base as an asset "used or required to be used to provide service to the public within Alberta" when the only function of those facilities is to generate revenue?; (2) Did the Roles, Relationships and Responsibilities Regulation under the Gas Utilities Act (Alta.), prohibit ATCO's ATCO Gas South subsidiary from operating the Carbon facilities and if so, was the Board unable to assert further jurisdiction over the Carbon facilities?; (3) Could the Board require an owner of a gas utility to continue to include an asset in the rate base or restrict an owner from withdrawing a specific asset from its gas distribution system once an asset was included in a past rate base?; and (4) Did the Board err in determining that a change in use of the Carbon facilities was a "disposition" for the purposes of section 26 of the Gas Utilities Act?

The Alberta Court of Appeal allowed the appeal. The court answered question 1 in the affirmative and held that it was not appropriate to provide answers to the other questions. The court remitted the matter to the Alberta Utilities Commission to be dealt with in a manner consistent with its reasons.

Mines and Minerals - Topic 8030

Oil and gas - Regulation - Provincial energy boards - Section 37 of the Gas Utilities Act (Alta.) provided that in fixing just and reasonable rates, the Alberta Energy and Utilities Board "shall determine a rate base for the property of the owner of the gas utility used or required to be used to provide service to the public within Alberta and on determining a rate base it shall fix a fair return on the rate base" - ATCO owned facilities which started out as a producing gas field but were converted to storage facilities whose only purpose now was to generate revenue - The Board included those facilities in the rate base as an asset "used or required to be used to provide service to the public within Alberta" - The Alberta Court of Appeal, applying a standard of reasonableness, held that the Board erred in law and in jurisdiction in doing so - See paragraphs 19 to 31.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 15].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 15].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 16].

Stores Block - see ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.).

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 16].

Council of Canadians with Disabilities v. Via Rail Canada Inc. - see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.

TransCanada Pipeline Ventures Ltd. v. Energy and Utilities Board (Alta.) (2008), 429 A.R. 171; 421 W.A.C. 171; 2008 ABCA 55, refd to. [para. 16].

Alberta Power Ltd. et al. v. Public Utilities Board (Alta.) et al. (1990), 102 A.R. 353; 72 Alta. L.R.(2d) 129 (C.A.), consd. [para. 16].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 23].

Statutes Noticed:

Gas Utilities Act, R.S.A. 2000, c. G-5, sect. 37 [para. 20].

Counsel:

H.M. Kay, Q.C., L.E. Smith, Q.C., and L.A. Goldbach, for the appellant;

A.E. Domes and B.C. McNulty, for the respondent;

T.D. Marriott, for the Utilities Consumer Advocate;

R.B. Brander and P.L. Quinton-Campbell, for the City of Calgary.

This appeal was heard on May 9, 2008, by McFadyen, Hunt and Slatter, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on May 27, 2008.