Milner Power Inc. v. Energy and Utilities Board (Alta.), (2006) 402 A.R. 378 (QB)

• Judge: Hawco, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 13, 2006
• Citations: (2006), 402 A.R. 378 (QB);2006 ABQB 537

Milner Power Inc. v. EUB (2006), 402 A.R. 378 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JL.085

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

(0601 03931; 2006 ABQB 537)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Hawco, J.

July 14, 2006.

Summary:

The Alberta Energy and Utilities Board dismissed a complaint filed by Milner Power Inc. and denied Milner's request for a hearing. Milner filed a notice of motion for leave to the Alberta Court of Appeal. Milner also filed an originating notice seeking judicial review of the Board's decision. The Board moved to strike the originating notice. The Board argued that the Alberta Energy and Utilities Board Act gave Milner the right to appeal to the Court of Appeal and it was prohibited from seeking judicial review.

The Alberta Court of Queen's Bench granted the Board's motion. The court held that while it had jurisdiction to grant a judicial review, a judicial review should not be granted in this case where there were no special circumstances which might override the adequacy of an appeal to the Court of Appeal.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - The Alberta Energy and Utilities Board dismissed a complaint filed by Milner Power Inc. and denied Milner's request for a hearing - Milner filed a notice of motion for leave to the Alberta Court of Appeal - Milner also filed an originating notice seeking judicial review of the Board's decision - The Board moved to strike the originating notice - The Board argued that the Alberta Energy and Utilities Board Act gave Milner the right to appeal to the Court of Appeal and it was prohibited from seeking judicial review - The Alberta Court of Queen's Bench held that while it had jurisdiction to grant a judicial review, a judicial review should not be granted in this case as there were no special circumstances which might override the adequacy of an appeal to the Court of Appeal - The court stated that where the legislature not only provided a strict privative clause, but also allowed for a statutory appeal to the Court of Appeal, the discretion to permit judicial review should be exercised cautiously.

Administrative Law - Topic 3303

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

Administrative Law - Topic 3357

Judicial review - General - Practice - Interlocutory proceedings (incl. application to strike) - [See Administrative Law - Topic 8843 ].

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - The Alberta Energy and Utilities Board dismissed a complaint filed by Milner Power Inc. and denied Milner's request for a hearing - Milner filed an originating notice seeking judicial review of the Board's decision - The Board moved to strike the originating notice - The Board argued that the Alberta Energy and Utilities Board Act gave Milner the right to appeal to the Court of Appeal and it was prohibited from seeking judicial review - Milner argued that the Board's action in attempting to strike the application for judicial review was contrary to its duty to act fairly and impartially - The Alberta Court of Queen's Bench held that the Board was not prohibited from bringing the application to strike Milner's originating notice - The Board was not arguing the merits of its decision, but rather that Milner had an alternative remedy - The Board had the necessary standing to make that argument and doing so had no impact on its impartiality - See paragraphs 17 to 24.

Administrative Law - Topic 8868

Boards and tribunals - Members - Independence and impartiality - [See Administrative Law - Topic 8843 ].

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:

Alberta Energy Co. v. Goodwell Petroleum Corp. et al. (2003), 339 A.R. 201; 312 W.A.C. 201; 2003 ABCA 277, refd to. [para. 17].

Canadian Pacific Airlines Ltd. et al. v. Canadian Airline Pilots Association et al., [1988] 2 F.C. 493; 84 N.R. 81 (F.C.A.), refd to. [para. 18].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 25].

BP Canada Energy Co. et al. v. Energy and Utilities Board (Alta.) (2003), 356 A.R. 363; 2003 ABQB 875, affd. (2004), 346 A.R. 147; 320 W.A.C. 147; 2004 ABCA 32, refd to. [para. 25].

Rozander and Groeneveld v. Energy Resources Conservation Board and Calgary Power Ltd. (1978), 13 A.R. 461; 93 D.L.R.(3d) 271 (C.A.), refd to. [para. 34].

Fooks and Johnstone v. Alberta Association of Architects (1982), 38 A.R. 132; 139 D.L.R.(3d) 445 (Q.B.), refd to. [para. 34].

Bromley v. Association of Professional Engineers, Geologists and Geophysicists (Alta.) (1989), 93 A.R. 185 (Q.B.), refd to. [para. 34].

Counsel:

Monte S. Forster, for the applicant, Milner Power Inc.;

J. Richard McKee, for the respondent, Alberta Energy and Utilities Board;

Len M. Sali, Q.C., for ATCO Power Ltd.

This motion was heard on June 13, 2006, before Hawco, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on July 14, 2006.