Milner Power Inc. v. Energy and Utilities Board (Alta.), (2007) 417 A.R. 115 (CA)

• Judge: Conrad, Paperny and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 15, 2007
• Citations: (2007), 417 A.R. 115 (CA);2007 ABCA 265

Milner Power Inc. v. EUB (2007), 417 A.R. 115 (CA);

      410 W.A.C. 115

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AU.056

Milner Power Inc. (appellant) v. Alberta Energy and Utilities Board (respondent)

(0601-0243-AC; 0601-0019-AC; 2007 ABCA 265)

Indexed As: Milner Power Inc. v. Energy and Utilities Board (Alta.)

Alberta Court of Appeal

Conrad, Paperny and Slatter, JJ.A.

August 21, 2007.

Summary:

Milner Power Inc. filed a complaint with the Alberta Energy and Utilities Board. The Board dismissed the complaint and denied Milner's request for a hearing. Milner applied for leave to appeal the Board's decision to the Court of Appeal pursuant to s. 26 of the Alberta Energy and Utilities Board Act (AEUB Act). Milner alleged, inter alia, an apprehension of lack of independence by the Board based on the perception that it had improperly considered and acceded to directives set out in a policy paper released by the Alberta Department of Energy (the Role and Mandate Paper). Milner also applied for judicial review of the Board's decision. The Board moved to strike the judicial review application on the ground that the appeal to the Court of Appeal pursuant to s. 26 of the AEUB Act was an adequate alternate remedy.

The Alberta Court of Queen's Bench, in a decision reported at 402 A.R. 378, granted the Board's motion and dismissed the judicial review application. Milner appealed. Milner argued that a s. 26 appeal was not an adequate alternate remedy as the record on such an appeal was more limited than on a judicial review and it was not sufficient to allow Milner to pursue its arguments regarding lack of independence and bias. If the court decided that Milner had to pursue its statutory appeal rather than a judicial review application, then Milner also brought an application for production of documents and for examination of the Board panel members and staff.

The Alberta Court of Appeal dismissed the appeal, holding that an appeal under s. 26 of the AEUB Act was an adequate alternate remedy. The court granted Milner's application for further document disclosure in part. The court directed that the Board file the record prior to the leave application, and that the record include all materials referred to the Board by the parties and interveners, all materials considered by the Board in its deliberations leading to the decision, and the Role and Mandate Paper. Any further applications for disclosure or rule 266 examinations were adjourned pending the granting of leave to appeal. Slatter, J.A., disagreed with the majority on this issue and would have dismissed Milner's application for further disclosure prior to arguing its application for leave to appeal.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - The Alberta Energy and Utilities Board dismissed a complaint by Milner Power Inc. and denied Milner's request for a hearing - Milner applied for leave to appeal the Board's decision to the Court of Appeal pursuant to s. 26 of the Alberta Energy and Utilities Board Act - Milner alleged, inter alia, an apprehension of lack of independence by the Board based on a perception that it improperly considered and acceded to directives set out in a policy paper - Milner also applied for judicial review of the Board's decision - The Alberta Court of Appeal affirmed a decision striking the judicial review application on the ground that the appeal pursuant to s. 26 of the Act was an adequate alternate remedy - Although Milner had argued that the record on a s. 26 appeal was not sufficient to allow it to pursue its arguments regarding lack of independence and bias, the court held that the range of materials available to the court on a s. 26 appeal was no less broad than on a judicial review application - Section 26(10) of the Act, which addressed the material placed before the court on appeal, could not be interpreted in such a restrictive manner as to preclude an appeal on grounds of breach of natural justice, or to insulate the Board from allegations of bias - The fact that the appeal was conditional on leave did not in itself render the remedy inadequate - See paragraphs 1 to 34.

Administrative Law - Topic 3303

Judicial review - General - Bars - Appeal or review available - [See Administrative Law - Topic 3302 ].

Public Utilities - Topic 4444

Public utility commissions or corporations (incl. private providers) - Powers - Production of documents - The Alberta Energy and Utilities Board dismissed a complaint by Milner Power Inc. and denied Milner's request for a hearing - Milner applied for leave to appeal the Board's decision to the Court of Appeal pursuant to s. 26 of the Alberta Energy and Utilities Board Act - Milner alleged, inter alia, an apprehension of lack of independence by the Board based on a perception that it improperly considered and acceded to directives set out in a policy paper (the Role and Mandate Paper) - Milner also applied for judicial review of the Board's decision - A chambers judge struck the judicial review application on the ground that the appeal pursuant to s. 26 of the Act was an adequate alternate remedy - Milner appealed - If it was decided that Milner had to pursue its statutory appeal rather than judicial review, then Milner also brought an application for production of documents and for examination of the Board members and staff - The Alberta Court of Appeal dismissed the appeal, holding that an appeal under s. 26 was an adequate alternative remedy - The court granted Milner's application for further disclosure in part - The court directed that the Board file the record prior to the leave application, and that the record include all materials referred to the Board by the parties and interveners, all materials considered by the Board in its deliberations leading to the decision, and the Role and Mandate Paper - Any further applications for disclosure or rule 266 examinations were adjourned pending the granting of leave to appeal - Slatter, J.A., disagreed with the majority on this issue and would have dismissed Milner's application for further disclosure prior to arguing its application for leave to appeal - See paragraphs 35 to 64.

Public Utilities - Topic 4742

Public utility commissions or corporations (incl. private providers) - Judicial review - Appeals or judicial review - Jurisdiction - [See Administrative Law - Topic 3302 ].

Cases Noticed:

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 16].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 2006 ABCA 282, refd to. [para. 18].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 18].

Rozander and Groeneveld v. Energy Resources Conservation Board and Calgary Power Ltd. (1978), 13 A.R. 461; 93 D.L.R.(3d) 271; 8 Alta. L.R.(2d) 203 (C.A.), consd. [paras. 22, 48].

BP Canada Energy Co. et al. v. Energy and Utilities Board (Alta.) (2003), 356 A.R. 363; 27 Alta. L.R.(4th) 123; 2003 ABQB 875, refd to. [para. 25].

Lethbridge (City) et al. v. Daisley et al. (2000), 250 A.R. 365; 213 W.A.C. 365; 83 Alta. L.R.(3d) 239; 2000 ABCA 79, refd to. [para. 41].

Conceicao Farms Inc. et al. v. Zeneca Corp. et al. (2006), 215 O.A.C. 233; 83 O.R.(3d) 792; 272 D.L.R.(4th) 545 (C.A.), reving. (2006), 214 O.A.C. 161; 82 O.R.(3d) 229 (C.A.), refd to. [para. 42].

Horodynsky Farms Inc. v. Zeneca Corp. - see Conceicao Farms Inc. et al. v. Zeneca Corp. et al.

Atchison v. Manufacturers Life Insurance Co. et al. (2003), 330 A.R. 123; 299 W.A.C. 123; 19 Alta. L.R.(4th) 30; 2003 ABCA 196, refd to. [para. 42].

Simons v. McKinney Machine Co., [1994] A.U.D. 1417 (C.A.), refd to. [para. 42].

Robertson v. Edmonton Chief of Police et al. (2004), 362 A.R. 44; 39 Alta. L.R.(4th) 263; 19 Admin. L.R.(4th) 1; 2004 ABQB 519, appeal dismissed as moot (2006), 401 A.R. 49; 391 W.A.C. 49; 2006 ABCA 302, refd to. [para. 42].

Dechant v. Law Society of Alberta (2000), 266 A.R. 249; 228 W.A.C. 249; 90 Alta. L.R.(3d) 40; 2000 ABCA 265, refd to. [para. 43].

MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry), [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1, refd to. [para. 43].

MacKeigan v. Hickman - see MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry).

Comité de révision de l'aide juridique et al. v. Denis, 2007 QCCA 126, leave to appeal refused (2007), 372 N.R. 397 (S.C.C.), refd to. [para. 43].

Payne v. Human Rights Commission (Ont.) (2000), 136 O.A.C. 357; 192 D.L.R.(4th) 315 (C.A.), refd to. [para. 45].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 45].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 45].

Alkali Lake Indian Band v. Westcoast Transmission Co. (1984), 57 B.C.L.R. 110 (C.A.), dist. [para. 52].

Alkali Lake Indian Band v. Westcoast Transmission Co. (1984), 53 B.C.L.R. 323; 8 D.L.R.(4th) 610 (C.A.), dist. [para. 52].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al. (2007), 253 N.S.R.(2d) 134; 807 A.P.R. 134; 2007 NSCA 37, refd to. [para. 55].

IMS Health Canada Ltd. v. Information and Privacy Commissioner (2005), 376 A.R. 336; 360 W.A.C. 336; 53 Alta. L.R.(4th) 201; 2005 ABCA 325, refd to. [para. 56].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201; 2001 SCC 4, refd to. [para. 59].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1; 2001 SCC 42, refd to. [para. 59].

Potter v. Nova Scotia Securities Commission (2006), 246 N.S.R.(2d) 1; 780 A.P.R. 1; 266 D.L.R.(4th) 147; 2006 NSCA 45, refd to. [para. 59].

Statutes Noticed:

Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17, sect. 26 (3.1) [para. 33]; sect. 26(6) [para. 20]; sect. 26(10) [para. 21].

Rules of Court (Alta.), rule 266 [para. 30].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), vol. 3, p. 45-63 [para. 30].

Counsel:

M.S. Forster, for the appellant;

J.P. Mousseau and T.C. McMenemy-Savage, for the respondent;

L.M. Sali, Q.C., for the intervener, Atco Power Ltd.

This appeal was heard on March 15, 2007, before Conrad, Paperny and Slatter, JJ.A., of the Alberta Court of Appeal. The reasons for judgment reserved of the Court of Appeal were filed on August 21, 2007, including the following opinions:

Paperny, J.A. (Conrad, J.A., concurring) - see paragraphs 1 to 36;

Slatter, J.A. (concurring in part) - see paragraphs 37 to 64.