ATCO Gas and Pipelines Ltd. v. Alberta Utilities Commission et al., 2009 ABCA 246

• Judge: Côté, McFadyen and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 09, 2009
• Citations: 2009 ABCA 246;(2009), 464 A.R. 275 (CA)

ATCO Gas & Pipelines v. Utilities Comm. (2009), 464 A.R. 275 (CA);

      467 W.A.C. 275

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JL.006

ATCO Gas and Pipelines Ltd. (appellant) v. Alberta Utilities Commission and Alberta Energy and Utilities Board (respondents) and Utilities Consumer Advocate (respondent)

(0701-0325-AC; 0801-0244-AC; 2009 ABCA 246)

Indexed As: ATCO Gas and Pipelines Ltd. v. Alberta Utilities Commission et al.

Alberta Court of Appeal

Côté, McFadyen and Rowbotham, JJ.A.

June 30, 2009.

Summary:

ATCO ceased using its "Salt Cavern" assets and now wanted to exclude them from the rate base in its general rate application with the Alberta Energy and Utilities Board. The Board required that the Salt Cavern assets be included, ruling that the exclusion required Board approval pursuant to s. 26(2)(d) of the Gas Utilities Act. ATCO complied but subsequently resubmitted its application to the Alberta Utilities Commission. The Commission also ruled that s. 26(2)(d) required approval of the Salt Cavern assets exclusion. ATCO applied for leave to appeal both orders. Leave was granted, on grounds that included the following question: "Did the Alberta Utilities Commission err in determining that a change in use of the Salt Cavern assets is a disposition requiring Alberta Utilities Commission approval under s. 26 of the Gas Utilities Act?" The parties subsequently settled the rate application without including the Salt Cavern assets in the rate base. The appeal proceeded, with the court restating the question on appeal as follows: "If a utility company owns an asset whose price or value in previous rate hearings has been included in the rate base calculation, and the company now alleges that the asset is no longer used, nor useful, nor needed for its regulated utility business, or alleges that it will soon become none of those things, does s. 26 of the Gas Utilities Act apply, and does the company need leave under that section?"

The Alberta Court of Appeal answered the restated question in the negative.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - ATCO ceased using its "Salt Cavern" assets and now wanted to exclude them from the rate base in its general rate application with the Alberta Utilities Commission - An issue arose as to whether Commission approval of the proposed exclusion was required under s. 26(2)(d) of the Gas Utilities Act (Alta.) - The Commission ruled that approval was required - ATCO applied for leave to appeal - The parties subsequently settled the rate application without including the Salt Cavern assets in the rate base - Leave to appeal was granted - The parties agreed that the s. 26(2)(d) approval question should be resolved by the court - The Alberta Court of Appeal decided to resolve the question - That would make the next rate hearing "much more effective" and would "obviate almost inevitable re-litigation of that question" - See paragraphs 15 to 18, 32 to 39.

Practice - Topic 8330

Costs - Appeals - Costs of appeal - Divided success - The Alberta Court of Appeal ordered each party to bear its own costs where "there were split results, three partially academic questions, and shifts in argument between factums and oral argument" - See paragraph 71.

Public Utilities - Topic 4665

Public utility commissions or corporations (incl. private providers) - Regulation - Rates - Considerations in fixing rates - The Alberta Court of Appeal stated the question on appeal as follows: "If a utility company owns an asset whose price or value in previous rate hearings has been included in the rate base calculation, and the company now alleges that the asset is no longer used, nor useful, nor needed for its regulated utility business, or alleges that it will soon become none of those things, does s. 26 of the Gas Utilities Act apply, and does the company need leave under that section?" - The court answered the question in the negative - See paragraphs 40 to 56.

Public Utilities - Topic 4741

Public utility commissions or corporations (incl. private providers) - Judicial review - General (incl. standard of review) - The Alberta Court of Appeal held that the standard of review of decisions of the Alberta Utilities Commission which interpreted s. 26 of the Gas Utilities Act (Alta.) was correctness - See paragraphs 57 to 68.

Cases Noticed:

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, consd. [para. 5].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.) et al. (2008), 433 A.R. 183; 429 W.A.C. 183; 2008 ABCA 200, consd. [para. 6].

Edmonton (City) v. Northwestern Utilities, [1961] S.C.R. 392, refd to. [para. 21].

Alberta Power Ltd. et al. v. Public Utilities Board (Alta.) et al. (1990), 102 A.R. 353 (C.A.), refd to. [para. 27].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 42].

Kraft Canada Inc. v. Euro Excellence Inc., [2007] 3 S.C.R. 20; 365 N.R. 332; 2007 SCC 37, refd to. [para. 42].

Compagnie Immobilière BCN Ltée v. Minister of National Revenue, [1979] 1 S.C.R. 865; 25 N.R. 361, refd to. [para. 44].

Planet Development Corp. and Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry in the United States and Canada, Local 740, [1990] 3 S.C.R. 644; 123 N.R. 241; 88 Nfld. & P.E.I.R. 15; 274 A.P.R. 15, refd to. [para. 45].

Ajax (Town) v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Local 222 et al., [2000] 1 S.C.R. 538; 253 N.R. 223; 133 O.A.C. 43; 2000 SCC 23, affing. (1998), 113 O.A.C. 188; 41 O.R.(3d) 426; 166 D.L.R.(4th) 516 (C.A.), refd to. [para. 45].

Sealey v. Crystal (1987), 39 D.L.R.(4th) 141 (B.C.C.A.), refd to. [para. 50].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.) et al. (2009), 454 A.R. 176; 455 W.A.C. 176; 2009 ABCA 171, refd to. [para. 54].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 58].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347; 91 Alta. L.R.(4th) 1; 2008 ABCA 220, reh. den. (2008), 437 A.R. 222; 433 W.A.C. 222; 93 Alta. L.R.(4th) 309; 2008 ABCA 284, leave to appeal refused (2008), 392 N.R. 399 (S.C.C.), refd to. [para. 61].

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. 64].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 65].

Statutes Noticed:

Gas Utilities Act, R.S.A. 2000, c. G-5, sect. 26(2)(d), sect. 26(4), sect. 26(5) [para. 41].

Authors and Works Noticed:

Bonbright, James C., Danielson, Albert L., and Kamerschen, David R., Principles of Public Utilities Rates (2nd Ed. 1988), generally [para. 59].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (4th Ed. 2004), pp. 454, 455, 456 [para. 64]; 556 [para. 65].

Phillips, Jr., Charles F., The Regulation of Public Utilities: Theory & Practice (2nd Ed. 1988), c. 8 [paras. 24, 59]; pp. 301 [para. 24]; 302 [paras. 24, 28, 30]; 325, 326 [para. 24].

Priest, A.J.G., Principles of Public Utilities Regulation (1969), pp. 173 [para. 21]; 174 [para. 24].

Counsel:

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

B.C. McNulty, for the respondent, Alberta Utilities Commission and Alberta Energy and Utilities Board;

T.D. Marriott, for Utilities Consumer Advocate.

This appeal was heard on April 9, 2009, by Côté, McFadyen and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment reserved were delivered for the Court of Appeal by Côté, J.A., on June 30, 2009.