Leave to Appeal – Dismissed – Procedural Fairness
A number of applicants sought leave to appeal AUC Decision 2013-386: AltaLink Management Ltd., Medicine Hat Area 138 kV Transmission Line (the “Decision”) which approved an alternate route for the 138 kV transmission line near Dunmore, Alberta (the “Dunmore Route”). The applicants, a group of persons who live or own property near the Dunmore Route, sought leave to appeal the Decision on the basis that discussions with AltaLink Management Ltd.’s (“AltaLink”) land agents led them to believe that the AUC would approve the preferred route and not the Dunmore Route, leading them to not participate in the AUC hearing. Some of the applicants submitted that they had no notice of the hearing at all.
Rowbotham J.A. distilled the various grounds of appeal into one issue, namely:
(a) Did the AUC err in jurisdiction or application of procedural fairness by failing to find a lack of notice and refusing to allow a new hearing?
All parties acknowledged to the Court of Appeal that all of the Applicants received various types of notice as a matter of fact. However, the real issue in dispute was that the quality of the notice provided was affected by assurances given by AltaLink’s land agents.
The Applicants argued that AltaLink’s land agents represented to them that the prospect of an approval for the Dunmore Route was extremely remote, and that their participation in the hearing was unnecessary. The Applicants submitted that, in relying on such representations, they did not attend the hearing or provide evidence, thus nullifying the effect of their notice and raising issues of procedural fairness.
Rowbotham J.A. dismissed the Applicants’ procedural fairness argument on the grounds that:
(a) Some Applicants participated in the hearing, and adduced evidence of their opposition to the Dunmore Route;
(b) The published notices clearly show the Dunmore Route and explain that the AUC can choose to approve any of the proposed routes; and
(c) AltaLink denied having made any representations as alleged by the Applicants.
The Applicants also alleged that the AUC held there were fewer landowner objections to the Dunmore Route, a factor that rendered the Decision a “close call”, and that their participation could have led to a different decision.
Rowbotham J.A. also dismissed the Applicants’ request for leave to appeal on the grounds that the appeal was not prima facie meritorious, and that the AUC’s reasons, taken as a whole, were reasonable, since the number of landowners was but one factor in a wide variety of relevant and appropriate factors, including social, economic and environmental factors.
In the result, Rowbotham J.A. held that the Applicants had not raised a serious, arguable point, nor did the applicants demonstrate that the appeal would be meritorious on its face. Rowbotham J.A. noted that even if the proposed appeal was a challenge to the AUC’s public participation program, the AUC would be owed considerable deference on that point.
