Request for Regulatory Appeal and Stay of Licences – Regulatory Appeal Request Granted – Stay Denied
On October 11, 2016, the AER issued a decision granting Mike Richard’s request, pursuant to section 39 of the Responsible Energy Development Act (“REDA”) for a regulatory appeal of certain well and facility licences issued to Grizzly Resources Ltd. (“Grizzly”).
However, the AER denied Mr. Richard’s request for a stay of those licences.
Request for Regulatory Appeal
The AER found that Mr. Richard was an “eligible person” within the meaning of that term under REDA, and therefore eligible for a regulatory appeal.
The AER did not accept Grizzly’s submissions that the request for appeal should be dismissed for being without merit under REDA section 39(4). The AER held that a request for appeal should only be dismissed where there is no reasonable evidence for proceeding to the next stage of the appeal proceeding. Specifically, the AER found that Mr. Richard had raised issues that had at least some merit regarding the AER’s issuance of the licences without imposing any conditions addressing Mr. Richard’s concerns.
The AER also declined to dismiss the appeal request on the basis that Mr. Richard filed the relevant statement of concern (“SOC”) past the filing deadline set out in the AER Rules. The AER noted the Rules provide the AER discretion to accept SOCs after the applicable deadline. In this case, the AER held that by soliciting a response from Grizzly regarding Richard’s late SOC, it was implied that the AER had permitted the late filing. The AER noted that Grizzly had the opportunity to object to the late SOC at that time, but chose not to.
Request for Stay of Licences
The AER denied Mr. Richard’s request for a stay of the licences subject to his appeal request.
In considering whether to grant a stay requested under REDA section 39(2), the AER applies the test for judicial stays as set out by the SCC in RJR MacDonal Inc. v Canada ([1994] 1 SCR 311) (the “RJR MacDonald Test”).
The RJR MacDonald Test is a three-part test, where a court must consider the following questions:
a) whether there is a serious question to be heard at the requested appeal;
b) whether the stay applicant will suffer irreparable harm should the stay request be denied; and
c) which of the parties will suffer greater harm from the granting or refusal of the stay (the balance of convenience question).
The onus is on an applicant (in this case, Mr. Richard) to satisfy all three parts of the RJR MacDonald Test.
The AER held that Mr. Richard satisfied the first part of the test for reasons similar to its finding that there was some merit to Mr. Richard’s appeal request.
The AER denied the requested stay on the grounds that Mr. Richard failed to show he would suffer irreparable harm should the stay be granted. The AER noted that Mr. Richard referred to concerns that can be addressed after the new wells and facilities are completed.
In light of its finding to deny the requested stay on the question of irreparable harm, the AER did not consider the third part of the test.
