Lavesta Area Group Inc. v. Energy and Utilities Board (Alta.) et al., (2012) 522 A.R. 88

• Judge: Côté, Martin and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 06, 2012
• Citations: (2012), 522 A.R. 88;2012 ABCA 84

Lavesta Area Group Inc. v. EUB (2012), 522 A.R. 88; 544 W.A.C. 88 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.116

Lavesta Area Group Inc. (appellant/applicant) v. Alberta (Energy and Utilities Board), Alberta Utilities Commission, AltaLink Management Ltd. and The Alberta Electric Systems Operator (respondents/respondents)

(1001-0317-AC; 2012 ABCA 84)

Indexed As: Lavesta Area Group Inc. v. Energy and Utilities Board (Alta.) et al.

Alberta Court of Appeal

Côté, Martin and Slatter, JJ.A.

March 16, 2012.

Summary:

In 2004 the Alberta Electric Systems Operator applied for approval of the need for a 500 kV transmission line between Edmonton and Calgary. Lavesta Area Group Inc. was a group of landowners along the proposed right of way who opposed the construction of the transmission line. On April 14, 2005 the Alberta Energy and Utilities Board issued Decision 2005-031, which confirmed that there was a need to upgrade the transmission lines between Edmonton and Calgary. A rehearing panel approved Decision 2005-03. McGee was one of the three members of the rehearing panel. In September 2006, AltaLink Management Ltd. submitted a facility application for construction of the transmission line approved by Decision 2005-031, and hearings were held. McGee was not on the panel considering this facilities application. During these hearings, a security consultant was hired. A senior Board official authorized participation in confidential phone calls. After these activities became known, the Board decided the hearings were fatally flawed and ordered, inter alia, that "those sitting as members of the [Board] prior to the filing of any such applications, would not be assigned to any further panels dealing with these applications or any successor applications" (Decision 2007-075). The Board essentially wiped the slate clean, and resolved to start over. As a result the two appeals on which leave had been granted (see [2007] A.R. Uned. 329 and [2007] A.R. Uned. 328) were conceded (see [2007] A.R. Uned. 600). On January 1, 2008 the Alberta Utilities Commission was created to take over regulation of the electrical industry from the Board. In 2008 AltaLink Management and TransAlta Corp. applied to have their transmission facility owner tariffs set for 2009 and 2010. McGee was assigned to chair those general tariff hearings. Lavesta did not participate in the tariff hearings. However, it applied for a rehearing of the decision. It alleged that McGee should not have participated in those hearings, because they were "successor applications" as described in Board Decision 2007-075. The rehearing panel concluded that the general tariff hearings were not successor applications. The panel also concluded that McGee had no personal interest in the outcome of the general tariff hearings. None of the alleged sources of an apprehension of bias related to the conduct of McGee or AltaLink Management. Mere involvement in the prior proceedings did not result in automatic disqualification, and a reasonably informed observer would not apprehend bias. The rehearing panel dismissed the application to vary or set aside the tariff ruling. Lavesta was granted leave to appeal (see [2011] A.R. Uned. 44).

The Alberta Court of Appeal dismissed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - In 2004 the Alberta Electric Systems Operator applied for approval of the need for a 500 kV transmission line between Edmonton and Calgary - Lavesta Area Group Inc. was a group of landowners along the proposed right of way who opposed the construction of the transmission line - On April 14, 2005 the Alberta Energy and Utilities Board issued Decision 2005-031, which confirmed that there was a need to upgrade the transmission lines between Edmonton and Calgary - A rehearing panel approved Decision 2005-03 - McGee was one of the three members of the rehearing panel - In September 2006, AltaLink Management Ltd. submitted a facility application for construction of the transmission line approved by Decision 2005-031, and hearings were held - McGee was not on the panel considering this facilities application - During these hearings, a security consultant was hired - A senior Board official authorized participation in confidential phone calls - After these activities became known, the Board decided the hearings were fatally flawed and ordered, inter alia, that "those sitting as members of the [Board] prior to the filing of any such applications, would not be assigned to any further panels dealing with these applications or any successor applications" (Decision 2007-075) - On January 1, 2008 the Alberta Utilities Commission was created to take over regulation of the electrical industry from the Board - In 2008 AltaLink Management and TransAlta Corp. applied to have their transmission facility owner tariffs set for 2009 and 2010 - McGee was assigned to chair those general tariff hearings - Lavesta did not participate in the tariff hearings - However, it applied for a rehearing of the decision - It alleged that McGee should not have participated in those hearings, because they were "successor applications" as described in Board Decision 2007-075 - The rehearing panel concluded that the general tariff hearings were not successor applications - The panel also concluded that McGee had no personal interest in the outcome of the general tariff hearings - None of the alleged sources of an apprehension of bias related to the conduct of McGee or AltaLink Management - Mere involvement in the prior proceedings did not result in automatic disqualification, and a reasonably informed observer would not apprehend bias - The rehearing panel dismissed the application to vary or set aside the tariff ruling - The Alberta Court of Appeal affirmed the decision - McGee's participation in the tariff hearings did not contravene the guidelines in Decision 2007-075, nor did it raise a reasonable apprehension of bias.

Cases Noticed:

Bur et al. v. Energy and Utilities Board (Alta.), [2007] A.R. Uned. 328; 42 C.P.C.(6th) 65; 2007 ABCA 210, refd to. [para. 6].

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. 14].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 14].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 16].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 16].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 16].

Gahir v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2009), 448 A.R. 135; 447 W.A.C. 135; 1 Alta. L.R.(5th) 290; 2009 ABCA 59, refd to. [para. 16].

Vivace Tavern Inc. et al. v. Ontario et al., [2005] O.T.C. 450; 77 O.R.(3d) 371 (Sup. Ct.), refd to. [para. 20].

Ontario (Attorney General) v. Collins, [2012] O.A.C. Uned. 93; 2012 ONCA 76, refd to. [para. 20].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 22].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 199; 433 W.A.C. 199; 91 Alta. L.R.(4th) 49; 2008 ABCA 176, refd to. [para. 24].

Ironside et al. v. Alberta Securities Commission (2009), 454 A.R. 285; 455 W.A.C. 285; 11 Alta. L.R.(5th) 27; 2009 ABCA 134, refd to. [para. 24].

Collins v. Canada (2011), 421 N.R. 201; 2011 FCA 171, refd to. [para. 29].

S.G. v. Larochelle et al. (2005), 363 A.R. 326; 343 W.A.C. 326; 2005 ABCA 111, leave to appeal refused (2005), 347 N.R. 196 (S.C.C.), refd to. [para. 29].

Counsel:

S.C. Stenbeck, for the appellant;

P.R. Mack, Q.C., and C. Wall, for the respondent, Alberta Utilities Commission;

R.W. Block, Q.C., for the respondent, AltaLink Management Ltd.;

J.H. Smellie, for the respondent, Alberta Electric System Operator.

This appeal was heard on March 6, 2012, by Côté, Martin and Slatter, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on March 16, 2012.