Permission to Appeal – Wastewater Utilities – Public Utilities Act
This Alberta Court of Appeal (“ABCA”) decision considered Macdonald Communities Limited’s (“MCL”) application for permission to appeal the AUC’s findings in AUC Decision 21340-D01-2017, and affirmed in Decision 23203-D01-2018, that the AUC did not have jurisdiction to regulate privately owned wastewater utilities.
The ABCA granted MCL permission to appeal, finding that MCL raised a serious arguable question regarding the AUC’s jurisdiction to regulate privately owned wastewater utilities.
Background
MCL is a development company that is developing certain phases of a housing development known as Monterra on Cochrane Lakes. Horse Creek Water Services (“HCWS”) provides treated water supply and distribution services to customers within Monterra. Its affiliate, Horse Creek Sewer Services Inc. (“HCSS”), provides wastewater services in the same area.
The AUC Decisions
MCL intervened in AUC Proceeding 21340 regarding HCWS water rates application to the AUC. MCL asked the AUC to find that HCSS was a public utility under the Public Utilities Act (“PUA”), or that HCSS and HCWS were functionally integrated and therefore part of a single public utility, such that the AUC could determine rates for wastewater services in addition to potable water service.
The AUC declined to make those determinations. In the original decision, the AUC concluded that s 1(i) of the PUA does not include wastewater or sewage collection and, therefore, the AUC did not have jurisdiction to set rates for HCSS, the wastewater utility in question.
In Decision 23203-D01-2018, the AUC denied MCL’s application for a review of the original decision.
MCL Permission to Appeal Application
MCL sought permission to appeal the AUC decisions on the grounds that:
(a) the original AUC panel erred in determining that it lacked jurisdiction under the PUA to regulate privately owned wastewater utilities such as HCSS;
(b) in doing so, failed to properly apply principles of statutory interpretation; and
(c) the AUC review panel erred in adopting a reasonableness standard in its review of the original decision.
ABCA Decision Granting Permission to Appeal
Test for Permission to Appeal
The ABCA explained that the test for permission to appeal requires the applicant to demonstrate that the questions raise a serious arguable point. The ABCA noted that it considers “… many factors, including the standard of appellate review if permission is granted.”
Decision
The ABCA granted MCL permission to appeal the AUC’s findings regarding the regulation of wastewater services under the PUA, finding that MCL had raised a serious arguable point.
