Leave to Appeal – Denied
Remington Development Corporation (“Remington”) applied to the Alberta Court of Appeal (“ABCA”) for leave to appeal AUC Decision 3368-D01-2015.
Remington’s appeal concerns ENMAX Power Corporation’s (“ENMAX”) application to the AUC to relocate two transmission lines located in downtown Calgary. The transmission lines were constructed on lands originally owned by Canadian Pacific Railway (“CPR”), pursuant to a right-of-way agreement. Remington subsequently purchased the lands from CPR and was assigned the right-of-way agreement. In a previous decision, the Alberta Court of Queen’s Bench determined that Remington had the right to terminate the right-of-way agreement with ENMAX, and directed ENMAX to apply to the AUC to relocate the transmission lines.
ENMAX applied to the AUC in August of 2014 to relocate the two lines across property owned by Alberta Infrastructure as its preferred location, along with five other viable route options. In Decision 3368-D01-2015, the AUC held that ENMAX’s preferred option was not in the public interest on the basis that:
(a) It had no information before it regarding Remington’s development plans for the land in question; and
(b) It had no information as to why the alternate routes (some of which crossed Remington’s lands) were incompatible with Remington’s plans.
The AUC further rejected the application on the basis that the relocation was not associated with meeting transmission system needs, nor was it the lowest cost option.
In its application for leave to appeal, Remington alleged that the AUC committed the following errors of jurisdiction and law:
(a) The AUC failed to consider or appreciate that ENMAX is trespassing on Remington’s land and has no right of entry;
(b) The AUC erred in assuming that the Surface Rights Board would grant a right of entry and compensation, when the Surface Rights Act only applies prospectively and not retroactively; and
(c) The AUC exceeded its jurisdiction be effectively expropriating Remington’s land without compensation.
The ABCA held that a high degree of deference to the AUC’s findings was appropriate. The ABCA noted that the AUC has exclusive jurisdiction over the siting of transmission lines in Alberta, which is at the core of its mandate under the Hydro and Electric Energy Act.
The ABCA found that the issue in respect of expropriation was without merit, holding that the AUC acknowledged that if the transmission lines were to remain on Remington’s lands, it would require an agreement as between the parties, or that the Surface Rights Board would have to determine compensation.
The ABCA also noted that Remington’s failure to adduce any evidence before the AUC, or to participate in ENMAX’s application to relocate the two lines across property owned by Alberta Infrastructure, along with five other route options, played a significant role in the AUC’s decision to deny the ENMAX application. Therefore, in rejecting the ENMAX application, the ABCA held that the effect of the AUC decision was to confirm that the present siting of the transmission line was in the public interest. The ABCA noted that the next step in the proceedings would be for Remington and ENMAX to negotiate a satisfactory settlement. The ABCA noted that if such negotiations failed, the matter would proceed to the Surface Rights Board for a right of entry and compensation order.
Accordingly, the ABCA held that the AUC’s decision fell within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. The ABCA therefore denied the application for leave to appeal.
