The individual Appellants, Stuart and Karen Shaw, unsuccessfully appealed a decision of the Respondent Alberta Utilities Commission (the “Commission”). The Commission had approved a new electrical transmission infrastructure project in the county of the Appellants.

Administrative law – Decisions of administrative tribunals – Utilities Commission – Approval process – Public interest – Powers under legislation – Natural resources – Electricity – Transmission – Judicial review – Compliance with legislation – Jurisdiction – Standard of review – Correctness – Reasonableness simpliciter

Shaw v. Alberta (Utilities Commission), [2012] A.J. No. 1259, 2012 ABCA 378, Alberta Court of Appeal, December 17, 2012, M.S. Paperny and F.F. Slatter JJ.A. and C.S. Brooker J. (ad hoc)

In 2009, the legislature passed new legislation which amended the approval process for the Commission’s review of new proposed electrical transmission facilities. Specifically, the amendments allowed the government to designate some electrical transmission projects as “critical” if they were “required to meet the needs of Alberta”. The first project designated as “critical” was the Heartland project, which consisted of a new substation and a 500 kilometer transmission line. The transmission line was to run through Sturgeon County and this was opposed by the Appellants, Stuart and Karen Shaw (the “Shaws”).

After a lengthy hearing in April and May 2011, the Commission approved the Heartland project. The Shaws brought the within appeal from that decision. The Respondents, the Alberta Utilities Commission and related electrical transmission companies (AltaLink Management Ltd. and EPCOR Distribution & Transmission Inc.), opposed the appeal.

Before the 2009 amendments, the Commission had to perform a two-step inquiry when considering a proposed electrical transmission project. The first step was to consider whether there was a “need” to expand or enhance the electrical system. This step did involve some consideration of the public interest. The second step was to decide whether to grant a permit to the facility owner. The second step involved a consideration of the public interest having regard to the social and economic effects of the project and the effect on the environment.

The issue on appeal was whether, in spite of the legislative amendments, the Commission still had the jurisdiction to consider the broad public interest when considering electrical transmission projects that were designated as “critical”.

The Shaws argued on appeal that, even for projects designated as “critical”, the Commission still had a broad public interest mandate when considering the facility applications. They argued that the Commission was still required to undertake a full assessment of the socio-economic impacts of the proposed project, regardless of whether the project was designated as “critical”. The Shaws argued that this issue was one of true jurisdiction and therefore the Court of Appeal ought to review the Commission’s decision on a standard of correctness.

The Respondents argued that the standard of review was reasonableness. The Respondents argued that the legislative amendments precluded the Commission from considering the socio-economic impacts of a project designated as “critical”.

The Court of Appeal first considered the applicable standard of review. The Court considered the previous case of Maxim Power Corp v. Alberta Utilities Commission where it was asked to consider the standard of review where the Commission had interpreted amendments to its home statute and the jurisdiction of the Commission relating to those amendments. In that case, the Court of Appeal held that the standard of review was correctness because the issue was one of pure jurisdiction. The Shaws relied on this decision of the Court of Appeal. The Court of Appeal accepted the argument of the Shaws and held that the standard of review was correctness in the within appeal.

The Court then considered the merits of the appeal. The Court accepted the argument of the Respondents. The Court specifically considered the way in which the competing interpretations would be read within the broader statutory scheme, which included three different pieces of legislation. The Court also considered the content of the legislative debates, which supported the interpretation put forward by the Respondents.

The appeal was dismissed and the interpretation of the Commission confirmed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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