Leave to Appeal – Dismissed
ATCO Power Ltd. (“ATCO”) applied to the Alberta Court of Appeal (“ABCA”) for leave to appeal AUC, Decision 2014-242 regarding the Alberta Electric System Operator 2014 ISO Tariff Application and 2013 ISO Tariff Update, on the question of whether the AUC erred in law or jurisdiction by failing to consider the impact of obligations imposed by ISO Rule 203.1 in determining whether the proposed Tariff is discriminatory.
ATCO submitted that the discriminatory effect of the ISO Tariff treated supply transmission service (“Rate STS”) customers the same as import opportunity service (“Rate IOS”) customers. ATCO submitted that the ISO Tariff failed to reflect the fact that under ISO Rule 203.1, Rate IOS customers can choose whether to offer energy onto the Alberta Interconnected Electric System (“AIES”) at any given time, whereas Rate STS customers are obligated to commit their physical generating capacity onto the AIES.
ATCO argued that, given the significant and material difference between the obligations of Rate IOS and Rate STS customers in ISO Rule 203.1, the ISO Tariff was not just and reasonable pursuant to section 121 of the Electric Utilities Act.
The AUC submitted that the appeal itself was not prima facie meritorious, since it did consider the operational impacts of capacity offer obligations in ISO Rule 203.1 in determining whether the Rate IOS and Rate STS rates were discriminatory.
The ABCA noted that appeals are permitted from decisions of the AUC only on points of law or jurisdiction, pursuant to section 29 of the Alberta Utilities Commission Act. The ABCA held that ATCO must raise a “serious, arguable point” to be successful on its application for leave to appeal.
The ABCA reviewed the AUC’s findings from Decision 2014-242 and held that the AUC determined that Rate IOS and Rate STS were not unjustly discriminatory as part of the AUC’s rate approval function, and was persuaded by other evidence that differences between the two rates justified the treatment imposed. The ABCA characterized the AUC’s findings as involving its ratemaking authority at the core of its mandate and expertise. Therefore the ABCA determined that a high degree of deference was warranted.
The ABCA noted that the AUC rejected ATCO’s submissions and found no basis to conclude that the treatment for Rate IOS costumers was discriminatory or unjust. The ABCA further noted that the AUC rejected ATCO’s submissions on the basis that the ISO Tariff proceeding was not the forum under which to address operational requirements of an ISO Rule.
As a result, the ABCA concluded that the question on appeal was a question of mixed fact and law. Absent any extricable legal error by the AUC, the ABCA found that such questions were expressly precluded from appellate review. The ABCA reiterated that, in order for ATCO to succeed on leave to appeal, it must demonstrate that it has a meritorious argument on the law. Given the high degree of deference given, the ABCA held that the AUC’s findings in Decision 2014-242 were within a range of possible, acceptable outcomes that were defensible in respect of the facts and the law.
Accordingly, the ABCA held that since ATCO did not demonstrate a serious, arguable point, the application for leave to appeal was dismissed.
