Regulatory Appeal Request – Request for Stay – Suspension of Licences – REDA Section 39(2)
In this decision, the AER considered Bonterra Energy Corp.’s (“Bonterra”) request under section 39(2) of the Responsible Energy Development Act (“REDA”) for a stay of a January 5, 2018, AER Decision to Suspend Licence Nos. 0486916, 0486919, 048717 (the “Decision”). That Decision was the subject of the above-noted request for regulatory appeal.
The AER denied the Bonterra’s request for a stay of the Decision for the reasons summarized below.
Test for Stay under REDA Section 39
The Regulator is empowered to grant a stay pursuant to section 39(2) of REDA. However, as stated in section 38(2), the filing of a request for regulatory appeal does not operate to stay the appealable decision.
The AER’s test for a stay is adapted from the Supreme Court of Canada case of RJR MacDonald. The steps in the test are:
• Serious question – Undertaking a preliminary assessment of the merits of the case to determine if there is a serious question to be heard at the requested appeal.
• Irreparable harm – Determining if the stay applicant will suffer irreparable harm if the stay request is refused.
• Balance of convenience – Assessing which of the parties would suffer greater harm from the granting or refusal of the requested stay.
The AER concluded that Bonterra had not satisfied the tripartite test.
The AER stated that it would provide its further reasons for its decision on the stay request in the near future and that its decision on the regulatory appeal request would be provided in due course.
