Saskatchewan Power Corp. et al. v. Alberta Utilities Commission et al., (2015) 607 A.R. 29

• Judge: Rowbotham, Bielby and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 10, 2015
• Citations: (2015), 607 A.R. 29;2015 ABCA 281

Sask. Power Corp. v. Utilities Comm. (2015), 607 A.R. 29; 653 W.A.C. 29 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. SE.036

Saskatchewan Power Corporation and Northpoint Energy Solutions Inc. (appellants/applicants) v. Alberta Utilities Commission, Alberta Electric System Operator, Montana Alberta Tie Ltd., Morgan Stanley Capital Group Inc., and NaturEner USA, LLC (respondents/respondents)

(1301-0048-AC)

ATCO Power Ltd. (appellant/applicant) v. Alberta Utilities Commission, Alberta Electric System Operator, Montana Alberta Tie Ltd., Morgan Stanley Capital Group Inc., and NaturEner USA, LLC (respondents/respondents)

(1301-0049-AC)

Powerex Corp. and British Columbia Hydro and Power Authority (appellants/applicants) v. Alberta Utilities Commission, Alberta Electric System Operator, Montana Alberta Tie Ltd., Morgan Stanley Capital Group Inc., and NaturEner USA, LLC (respondents/respondents)

(1301-0050-AC)

TransCanada Energy Ltd. (appellant/applicant) v. Alberta Utilities Commission, Alberta Electric System Operator, Montana Alberta Tie Ltd., Morgan Stanley Capital Group Inc., and NaturEner USA, LLC (respondents/respondents)

(1301-0054-AC; 2015 ABCA 281)

Indexed As: Saskatchewan Power Corp. et al. v. Alberta Utilities Commission et al.

Alberta Court of Appeal

Rowbotham, Bielby and Brown, JJ.A.

September 10, 2015.

Summary:

The Alberta Utilities Commission confirmed the Independent System Operator (ISO)'s proposed rule for allocating system available transfer capability. The four appellants, market participants, had objected to the ISO rule and asked to set aside the Commission's decision. The appeal was limited to whether the Commission reasonably interpreted three legislative provisions: s. 29 of the Electric Utilities Act, and ss. 16 and 27 of the Transmission Regulation. The appeals and the respondents' application to strike portions of the factums of two appellants were heard together. Each party claimed costs.

The Alberta Court of Appeal, in a decision reported at (2015), 600 A.R. 337; 645 W.A.C. 337, dismissed the appeal and struck the impugned paragraphs because they strayed beyond the questions on which permission to appeal was granted. The judgment made no mention of costs. The respondents sought costs of the appeal on the basis of Column 5 of Schedule C against each of the four appellants. The appellants argued that the Court was functus officio on the issue. Their alternative argument was that Column 1 applied and there should only be one sets of costs payable jointly by the four appellants.

The Alberta Court of Appeal held that the Court was not functus officio on the issue of costs. The Court awarded costs on Column 5 of Schedule C, and granted the respondents' request for costs in accordance with the following judgment.

Courts - Topic 2194

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Costs - The appeal was dismissed - The judgment made no mention of costs - The respondents sought costs of the appeal - The Alberta Court of Appeal held that the Court was not functus officio on the issue of costs - "As a general rule, a court is functus officio once a final judgment or order has been entered and therefore lacks the jurisdiction to set it aside or vary it ... . An exception to the functus officio doctrine exists when the issue concerns costs: r. 10.30 of the Alberta Rules of Court ... . The applicable rules provide: '10.30(1) Unless the Court otherwise orders or these rules otherwise provide, a costs award may be made ... (c) in respect of trials and all other matters in an action, after judgment or a final order has been entered.' ...'14.88(1) Unless otherwise ordered, the successful party in an appeal or an application is entitled to a costs award against the unsuccessful party.' ... The two-month limit in the Information Note can be relaxed under r. 13.5(2)" - See paragraphs 8 to 12.

Practice - Topic 7004

Costs - Party and party costs - General principles and definitions - Scale of costs - Fixing of - Four separate applications were made, and granted, for permission to appeal "Alberta Utilities Commission Decision 2013-025, Alberta Electric System Operator, Objections to ISO rules Section 203.6, Available Transfer Capability and Transfer Path Management" (Decision 2013-025) - The appeal was dismissed - The respondents sought costs of the appeal on the basis of Column 5 of Schedule C - The appellants argued that Column 1 applied because damages were neither claimed nor recovered - The Alberta Court of Appeal awarded costs on Column 5 of Schedule C - Two of the appellants' submissions quantified the sum and economic interests at stake, which significantly exceeded the $1.5 million threshold under Column 5 - Further, the appeals concerned complex electric transmission issues -"The issues in these appeals were complex. Although they concerned statutory interpretation, the interpretation was in the context of a complicated legislative framework and an evolving industry and regulatory regime, Decision 2013-025 was 62 pages in length, excluding appendices. Additionally, each of the appellants argued a very different approach to statutory interpretation which suggests that even statutory interpretation was not straightforward in this appeal." - See paragraphs 17 to 23.

Practice - Topic 7644

Costs - The tariffs, schedules etc. - Classification of proceedings - [See Practice - Topic 7004 ].

Practice - Topic 8327

Costs - Appeals - Costs of appeal - Taxable items - [See Practice - Topic 8334.2 ].

Practice - Topic 8327

Costs - Appeals - Costs of appeal - Taxable items - The respondents were required to respond to four appeals - Each appellant took a different approach to the issues on appeal - Three respondents asked that certain paragraphs of the factums of two appellants (ATCO and Powerex) be struck - The impugned paragraphs were struck because they strayed beyond the questions on which permission to appeal was granted - The appeal was dismissed - The respondents sought costs of their striking application against ATCO and Powerex - Item 22 of the tariff provided for costs for an "Appearance on contested application before Appeal Court, including brief" - The Alberta Court of Appeal held that awarding the full amount of item 22 in this case was not justified - The application to strike was heard at the same time as the appeal; only a single appearance was required - However, the respondents were required to file materials and they were entirely successful in their application - This justified an award of 50% of the costs of a contested application, or $1,250 - "As the chambers judge indicated, 'transgression will be met by a significant costs award'. Costs in the amount of $1,250 is payable by each of the appellants, ATCO and Powerex, and each of the respondents is entitled to these costs." - See paragraphs 38 and 39.

Practice - Topic 8334.2

Costs - Appeals - Costs of appeal - Entitlement to multiple sets of costs - The respondents were required to respond to four appeals - Each appellant took a different approach to the issues on appeal - The appeal was dismissed - The applicable tariff of costs, Schedule C, provided that costs might be claimed for, among other items, the preparation of a factum -The respondents argued that each of them were entitled to four sets of costs, one set of costs from each appellant - The appellants argued that more than a single set of costs paid jointly by the appellants would be excessive and that when multiple parties were involved, the costs award should be suitable in a global sense - The Alberta Court of Appeal granted the respondents' request - Each appellant prepared a separate maximum length factum - In principle this warranted costs for four "preparations of factum", one from each appellant - See paragraphs 25 to 29.

Practice - Topic 8335

Costs - Appeals - Costs of appeal - Combined appeals by related parties - [See Practice - Topic 8334.2 ].

Cases Noticed:

Fas Gas Oil Ltd. et al. v. J.H. Automotive Ltd. (2004), 348 A.R. 65; 321 W.A.C. 65; 2004 ABCA 120, refd to. [para. 8].

Shah v. Alta. (1999), 237 A.R. 381; 197 W.A.C. 381; 1999 ABCA 247, refd to. [para. 9].

RC International Ltd. et al. v. Brooks et al. (2000), 266 A.R. 320; 228 W.A.C. 320; 2000 ABCA 270, refd to. [para. 10].

Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd. et al., [2002] A.R. Uned. 47; 2 Alta. L.R.(4th) 57; 2002 ABCA 96, refd to. [para. 10].

Walton v. Alberta Securities Commission et al. (2014), 588 A.R. 327; 626 W.A.C. 327; 2014 ABCA 446, refd to. [paras. 10, 20].

Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al. (2015), 14 Alta. L.R.(6th) 152; 2015 ABCA 9, refd to. [para. 11].

United Food and Commercial Workers, Local 401 v. Information and Privacy Commissioner (Alta.) et al. (2012), 536 A.R. 82; 559 W.A.C. 82; 2012 ABCA 244, refd to. [paras. 18, 26].

Alberta (Municipal Affairs) v. Municipal Government Board (Alta.) et al., [2003] A.R. Uned. 411; 22 Alta. L.R.(4th) 1; 2003 ABCA 260, refd to. [para. 21].

Statutes Noticed:

Rules of Court (Alta.), Reg. 124/2010, rule 10.30(1)(c), rule 14.88, Information Note [para. 10]; rule 10.33 [para. 17].

Counsel:

G.R. Jeerakathil and K.A. MacDonald, for the appellants, Saskatachewan Power Corporation and Northpoint Energy Solutions Inc.;

C.W. Sanderson, Q.C., and C.C. Ferguson, for the appellants, Powerex Corp. and British Columbia Hydro and Power Authority;

E.B. Mellett and M.H. Buchinski, for the appellant, ATCO Power Ltd.;

G.S. Fitch, Q.C., for the appellant, TransCanada Energy Ltd.;

C. Wall, for the respondent, Alberta Utilities Commission;

D.G. Davies, Q.C., for the respondent, Alberta Electric System Operator;

K.F. Miller, for the respondent, Montana Alberta Tie Ltd.;

D.P. Langen and R.A. Howie, for the respondent, Morgan Stanley Capital Group Inc.;

R. Twyman and V. Light, for the respondent, NaturEner USA, LLC.

This costs matter was heard by way of written submissions filed on various dates in July and August, 2015, before Rowbotham, Bielby and Brown, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment, filed at Calgary, Alberta, on September 10, 2015.