Permission to Appeal – Application to Add Parties
In this decision, the Alberta Court of Appeal (“ABCA”) considered applications by the Balancing Pool and TransAlta Corporation (“TransAlta”) to be added as parties (or as intervenors) to the applications for permission to appeal portions of AUC Proceeding 790, Module C (Decision 790-D06-2017 (the “Permission to Appeal Applications”).
The Permission to Appeal Applications were brought by ENMAX Energy Corporation, Capital Power Corporation and TransCanada Energy Ltd. (the “Proposed Appellants”).
The named respondents to the Permission to Appeal Applications were Milner Power Inc., ATCO Power Canada Ltd., and the AUC.
Background
In the Line Loss Module C decision (AUC Decision 790-D06-2017), the AUC directed the AESO to reissue invoices for line loss charges or credits to those parties that held Supply Transmission Service (“STS”) contracts when the charges or credits were first incurred (referred to as the Invoicing Issue).
The Proposed Appellants were all predecessor STS contract holders who actively participated in the Module C hearing.
The ABCA summarized the Proposed Appellants’ argument in support of the Permission to Appeal Applications as it relates to the Invoicing Issue as follows:
(a) that s 15(2) of the ISO tariff, the assignment and novation provision, had been misinterpreted and misapplied; and
(b) the clear language of that clause requires the AESO to bill current STS contract holders for past line losses, not those who held the contracts when the losses were occasioned, regardless of whether the rates were lawful or unlawful.
Test
The ABCA can grant an application to add parties to an appeal where it finds that it is in the interests of justice to do so. The ABCA previously set out the applicable test in Carbon Development Partnership v. Alberta (Energy & Utilities Board), 2007 ABCA 231, [2007] A.J. No. 727 (Alta. C.A. [In Chambers]) (“Carbon”) at para 9, as follows:
This court has inherent power to add parties to an appeal, especially if an applicant’s interests are not represented: … The joinder test is whether or not the applicant has a legal interest in the outcome of the proceeding. If so, there are two different sub-tests. The first is whether it is just and convenient to add the applicant. The second is whether or not the applicant’s interest would only be adequately protected if it were granted party status.
The ABCA noted, however, that it strongly discourages adding parties or allowing intervenors at the early permission to appeal stage. In the absence of permission to appeal being granted, there is no appeal and as such no interest, legal or economic impact, that can be directly affected by the application (at least immediately). If the application to appeal is granted, parties are at liberty to apply for status at the hearing of the appeal. If the application is dismissed, there is no appeal. Unless and until permission is granted, proposed parties are not generally at risk. Usually, the issues on a permission application are narrow and are focused on the statutory requirements. In other words, the inquiry at that stage is usually a narrow one and rarely assisted by representations from multiple parties.
For these reasons, the ABCA has held that adding parties or intervenors should be discouraged at the permission to appeal stage of the proceedings, absent “extraordinary circumstances.”
Balancing Pool Added as Party
The ABCA granted the Balancing Pool’s application to be added as a respondent.
The ABCA found that with respect to the Balancing Pool, extraordinary circumstances within the meaning of Carbon had been demonstrated in this case, because:
(a) the Balancing Pool is currently a holder of a large number of STS contracts and as such is specifically and directly interested in the matter at issue;
(b) the Balancing Pool acquired these contracts through the operation of statute rather than by commercial negotiation, which affords the Balancing Pool a distinct legal and commercial perspective relative to the other parties; and
(c) the Balancing Pool is a statutory entity funded by Alberta’s energy consumers and represents distinct and broad interests compared to the named parties.
The ABCA accordingly found that:
(a) the Balancing Pool is positioned to provide a unique perspective to the ABCA in the Permission to Appeal Applications; and
(b) the Balancing Pool’s contributions to the Permission to Appeal Applications would not cause undue delay or inconvenience, as it had agreed to be bound by the timelines and page constraints already in place.
TransAlta not Added as Party
The ABCA denied TransAlta’s application to be added as a party on a without prejudice basis, should leave be granted.
The ABCA found that TransAlta’s application did not meet the threshold as set out in Carbon. Although TransAlta might be affected by the ultimate outcome of the prospective appeal, the Court was not persuaded that TransAlta’s perspective would be of assistance in determining whether permission to appeal should be granted or on what questions.
However, if and when permission to appeal was to be granted, TransAlta may reapply for consideration to be added as a respondent or intervenor on the appeal proper. At that stage, in the ABCA’s view, it would become clear as to what interests might be affected, whether TransAlta had rights that might be directly affected and/or a unique perspective on the issues raised on appeal.
Decision
For the reasons set out above, the ABCA granted the Balancing Pool’s application to be added as a respondent to the Permission to Appeal Applications. However, the ABCA dismissed TransAlta’s application, with leave to apply if permission to appeal were to be ultimately granted.
