Atco Ltd. et al. v. Calgary Power Ltd. et al., (1982) 45 N.R. 1 (SCC)

• Judge: Ritchie, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 02, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 45 N.R. 1 (SCC);41 AR 1;20 BLR 227;23 Alta LR (2d) 1;[1983] 1 WWR 385;45 NR 1;140 DLR (3d) 193;1982 CanLII 208 (SCC);1982 CanLII 58 (SCC);[1982] 2 SCR 557;142 DLR (3d) 575;[1982] 2 SCR 582;70 CCC (2d) 575

Atco Ltd. v. Calgary Power Ltd. (1982), 45 N.R. 1 (SCC)

MLB headnote and full text

Atco Ltd. and 99139 Canada Ltd. v. Calgary Power Ltd., City of Calgary, City of Edmonton, Consumers Association of Canada (Alberta), City of Medicine Hat, Sunlife Assurance Company of Canada, Gordon Securities Limited, City of Red Deer, Town of Fort MacLeod, Arsene, Town of Coalhurst and Town of Picture Butte, Public Utilities Board, Canadian Western Natural Gas Company Limited, Northwestern Utilities Limited and Alberta Power Limited: Canadian Utilities Limited, Canadian Western Natural Gas Company Limited, Northwestern Utilities Limited and Alberta Power Limited v. Atco Ltd., 99139 Canada Inc., Calgary Power Ltd., City of Calgary, City of Edmonton, Consumers Association of Canada (Alberta), City of Medicine Hat, Sunlife Assurance Company of Canada, Gordon Securities Limited, City of Red Deer, Town of Fort MacLeod, Arsene, Town of Coalhurst, Town of Picture Butte and The Public Utilities Board of the Province of Alberta

Indexed As: Atco Ltd. et al. v. Calgary Power Ltd. et al.

Supreme Court of Canada

Ritchie, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.

November 2, 1982.

Summary:

When Atco Ltd. proposed to take over voting control of Calgary Power Ltd., a public utility, by acquiring 50.1% of its outstanding stock, Atco already owned 58.1% of the common shares of Canadian Utilities Limited, which in turn owned almost all the shares of two public utilities. The Alberta Public Utilities Board prevented Atco from proceeding with the take-over bid pursuant to its power under s. 98 of the Public Utilities Board Act. The ruling depended upon a finding that Atco was the "owner of a public utility" within the meaning of s. 2(i)(i) of the Public Utilities Board Act and that the take-over constituted a union within s. 98. Atco appealed.

The Alberta Court of Appeal in a judgment reported 24 A.R. 300 dismissed the appeal and held that the take-over bid and Atco were within the jurisdiction of the Board. Atco appealed.

The Supreme Court of Canada dismissed the appeal. See paragraphs 1 to 30.

Wilson, J., dissenting, Ritchie and McIntyre, JJ., concurring, would have allowed the appeal on the ground that Atco was not the "owner of a public utility" by virtue only of its controlling interest in a company which owned public utilities. See paragraphs 31 to 42.

Public Utilities - Topic 8

Owner - Defined - The Public Utilities Board Act, R.S.A. 1970, c. 302, s. 2(i)(i), defined the owner of a public utility as "a person owning, operating, managing or controlling a public utility" - Atco owned 58.1% of the shares of Canadian Utilities Ltd. which in turn owned almost all the shares of two public utilities - The Supreme Court of Canada held that Atco, which owned the controlling interest in the company which owned controlling interests in the public utilities, was the owner of a public utility within the meaning of the Act and was subject to the jurisdiction of the Alberta Public Utilities Board.

Public Utilities - Topic 4644

Public utilities commissions - Regulation - General principles - General powers - Take-over bids - Unlawful acts - A company, which already owned a controlling interest in a company which itself owned two public utilities bid to take-over a controlling interest in another public utility - The Supreme Court of Canada held that the Alberta Public Utilities Board had jurisdiction over the take-over bid under s. 98 of the Act, because the company was the owner of a public utility and the take-over constituted a union within the meaning of s. 98.

Statutes - Topic 2404

Interpretation - Words and phrases - Words which have received judicial construction - The Supreme Court of Canada discussed the general rule of statutory interpretation that, where words have received judicial interpretation, a legislature in subsequently adopting or using such words without indication to the contrary may be taken to have intended to adopt the prior interpretation by the courts - See paragraph 27.

Words and Phrases

Control - The Supreme Court of Canada held that the word "control" in s. 2(i)(i) of the Public Utilities Board Act, R.S.A. 1970, c. 302, defining the owner of a public utility as "a person owning, operating, managing or controlling a public utility", included de facto control by virtue of the ownership of a majority of shares in a company which in turn owned a public utility.

Words and Phrases

Union - The Supreme Court of Canada held that the acquisition of a majority of shares in a public utility by a company constituted a union of the two within the jurisdiction of the Alberta Public Utilities Board in s. 98 of the Public Utilities Board Act, R.S.A. 1970, c. 302 - See paragraphs 14 to 30.

Cases Noticed:

Army and Navy Department Stores v. Minister of National Revenue, [1953] 2 S.C.R. 496, consd. [para. 22].

St. Louis Brewery Ltd. v. Apthorpe (1899), 79 L.T. 551, consd. [para. 22].

Covert et al. v. The Minister of Finance of the Province of Nova Scotia, [1980] 2 S.C.R. 774; 32 N.R. 275; 41 N.S.R.(2d) 181; 76 A.P.R. 181, consd. [para. 22].

Jodrey's Estate v. Province of Nova Scotia, [1980] 2 S.C.R. 774; 32 N.R. 275; 41 N.S.R.(2d) 181; 76 A.P.R. 181, consd. [para. 22].

Buckerfield's Limited et al. v. M.N.R., [1965] 1 Ex. C.R. 299, consd. [para. 24].

British American Tabacco Company Ltd. v. Inland Revenue Commissioners, [1943] A.C. 335, appld. [para. 24].

Vineland Quarries and Crushed Stone Limited v. M.N.R., [1966] Ex. C.R. 417, consd. [para. 24].

Re Pacific Western Airlines, [1978] 1 S.C.R. 61; 14 N.R. 21; 2 A.R. 539; 75 D.L.R.(3d) 257, consd. [paras. 25, 37].

In re Suburban Rapid Transit Co., [1931] 1 W.W.R. 778, consd. [para. 26].

Barlow v. Teal (1885), 15 Q.B.D. 403, consd. [para. 27].

Alleghany Corp. v. Breswick & Co. (1957), 353 U.S. 151, consd. [para. 28].

Rochester Telephone Corp. v. United States, 307 U.S. 125, consd. [para. 28].

Salomon v. Salomon and Co., [1897] A.C. 22, consd. [para. 35].

Saine v. Beauchesne and Gobeil, [1963] S.C.R. 435, appld. [para. 9].

Statutes Noticed:

Public Utilities Board Act, R.S.A. 1970, c. 302, sect. 2(i)(i), sect. 2(j)(iii) [paras. 6, 32]; sect. 28 [para. 12]; sect. 29 [para. 19]; sect. 79 [para. 13]; sect. 88 [para. 17]; sect. 98 [para. 14].

Authors and Works Noticed:

Oxford Universal Dictionary (3rd. Ed.) [para. 16].

Webster's Dictionary [para. 16].

Counsel:

J.F. Howard, Q.C., and A.D. MacLeod, for Atco Ltd. et al.;

Tom Mayson, Q.C., for Canadian Utilities Limited et al.;

Miles Patterson, Q.C., Brian A. Crane, Q.C., and Hugh D. Williamson, for Calgary Power Limited;

Douglas A. Larder, for City of Calgary;

C.P. Clarke and A.V. Lapko, for Public Utilities Board of Alberta.

This case was heard on May 5 and 6, 1982, at Ottawa, Ontario, before RITCHIE, BEETZ, ESTEY, McINTYRE, CHOUINARD, LAMER and WILSON, JJ., of the Supreme Court of Canada.

On November 2, 1982, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

ESTEY, J. - see paragraphs 1 to 30;

WILSON, J., dissenting - see paragraphs 31 to 42.

BEETZ, CHOUINARD and LAMER, JJ., concurred with ESTEY, J.

RITCHIE and McINTYRE, JJ., concurred with WILSON, J.