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Percy v. Value Creation Inc. (2018 ABCA 50)

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Application for Stay Pending Appeal


In this decision, the Alberta Court of Appeal (“ABCA”) considered applications by Greg and Barbara Percy (the “Percys”) for:

(a) a stay of an AER hearing scheduled for February 6, 2018, pending the Percys’ appeals of:

(i) AER letter decisions issued on December 7 and December 8, 2017, denying the Percys’ request to delay the February 6, 2018, hearing and to expand the scope of that hearing; and

(ii) the AER decision denying the Percys’ request for reconsideration of EUB Decision 2005-079; and

(b) an adjournment of the Percys application to the ABCA for permission to appeal the December 7 and 8th AER decisions.

The ABCA granted the request to adjourn the application for permission to appeal the December 7 and 8, 2017 AER decisions.

The ABCA denied the Percys’ application for a stay of the AER panel hearing scheduled for February 6, 2018.

Background

The ABCA set out the following background information:

• Through a subsidiary called BA, VCI planned to upgrade the refinery in the Heartland Upgrader Project (the “Project”). In 2005, BA received approval from the Alberta Energy & Utilities Board (“EUB”), the AER’s predecessor, in EUB Decision 2005-079 to conduct upgrades: (the “2005 Upgrade Approvals Decision”).

• The Project was delayed and, in the wake of BA becoming insolvent, in 2014 (according to the Percys) VCI obtained permission to transfer BA’s approvals for the Project from BA to VCI.

• On September 26, 2017, the AER issued a public Notice of Hearing for VCI’s applications to amend existing AER approvals concerning continuation of the Project. The Percys submitted a request to participate, granted by the AER hearing panel on October 31, 2017. The hearing was set to commence February 6, 2018.

• The October 31 AER panel decision also stated that the scope of the hearing would be limited to considering the following matters: the amendments contemplated by the applications; the potential health, safety, and environmental impacts; the emergency preparedness; and the emergency protection zone.

• On December 7, 2017, the AER denied a request to expand the scope of the February 6, 2018 hearing.

• On December 8, 2017, the AER sent a letter to the Percys and VCI agreeing to accept submissions on whether the 2005 Upgrade Approvals Decision should be reconsidered.

• On January 5, 2018, the Percys applied to the ABCA for permission to appeal the AER letter decisions of December 7 and 8th, 2017, that is, to appeal the AER decisions to carry on with the February 6, 2018 hearing and not to expand its scope.

• On January 29, 2018, the AER issued its decision denying the Percys’ request for reconsideration of the 2005 Upgrade Approvals Decision.

• The Percys submitted that they intended to apply for permission to appeal that decision, and sought an adjournment so that both applications for permission to appeal could be heard together.

ABCA Findings

ABCA Denied Stay of February 6 AER Hearing

The Percys sought to stay the AER panel hearing scheduled for February 6, 2018, pending the ABCA’s disposition on the applications for leave to appeal.

The Percys argued that allowing the February 6, 2018 AER panel hearing to proceed would further entrench AER decisions already made. They submitted that the February 6, 2018 proceedings were limited in scope to matters such as establishing safety zones and would not address ongoing concerns, such as the devaluation of their property.

The ABCA denied the stay based on its findings that:

(a) Rule 14.48 of the Alberta Rules of Court provided the ABCA authority to grant a stay pending appeal, but it was questionable whether that language included circumstances where a person had filed an application for permission to appeal, but that application had not been decided;

(b) Even assuming rule 14.48 allowed for a stay pending the hearing of an application for permission to appeal, the Percys had not yet provided arguments on the merits of their leave applications, let alone the appeals themselves; and

(c) Consequently, the ABCA was not in a position to determine whether the Percys had raised arguable issues on appeal.

Additionally, the ABCA found that the AER was entitled to deference as to how it arranges its processes in order to fulfill its statutory mandate.

The ABCA noted its previous statement that in ” . . . the context of setting a hearing schedule and refusing an adjournment of the commencement date of a hearing, this Court should be loath to interfere with the Board’s process, absent egregious conduct by the Board …”; and an administrative decision maker’s ruling on whether to adjourn its proceedings is a discretionary one, attracting a high standard of appellate review: BP Canada Energy Co. v. Alberta (Energy & Utilities Board), 2004 ABCA 75.

The ABCA found that in these circumstances, a stay was not warranted.

ABCA Grants Request for Adjournment of Application for Permission to Appeal AER Decisions

Given there was an outstanding application for leave to appeal the December 7 and 8th AER decisions and an impending application to appeal the January 29th, 2018 AER decision, the ABCA granted an adjournment of that yet-to-be-heard leave application.

Conclusion

The ABCA denied the Percys’ application for a stay of the AER panel hearing scheduled for February 6, 2018.

The ABCA granted the request to adjourn the application for permission to appeal the December 7 and 8, 2017 AER decisions.

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