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Dorin v EPCOR Distribution and Transmission Inc., 2018 ABCA 427

Link to decision summarized

Permission to Appeal – Granted


In this decision, the Alberta Court of Appeal (“ABCA”) considered Mark Dorin’s application for permission to appeal AUC Decision 23128-D01-2018 (“the Decision”). In the Decision, the AUC concluded t was in the public interest to approve an application from EPCOR Distribution and Transmission Inc. (“EPCOR”) to construct and operate an electrical substation (the “Substation”) and associated transmission and communications infrastructure (the “Project”) pursuant to section 17 of the Alberta Utilities Commission Act (“AUCA”).

The ABCA granted permission to appeal (in part) on the following question:

  • What was the effect, if any, of the absence of written consent by the Minister of Infrastructure given prior to the making of the Decision by the AUC, on EPCOR’s ability to proceed to have the Substation built and made operational?

Background

EPCOR hoped to build the Substation to serve the growing demand for electricity in rapidly-expanding southwest Edmonton. Mr. Dorin held an option to purchase lands adjacent to the transportation and utility corridor on which the Substation was proposed to be built. He did not challenge the identified need for the Substation but rather the specific sites upon which it was approved to be built, given certain alleged risks of leaks from oil and gas facilities, comprised of wells, pipelines and a tank battery located near those sites.

The AUC granted EPCOR approval to build the Substation on either of two sites, subject to subsequently obtaining written approval from the Alberta Minister of Infrastructure.

Test for Leave to Appeal

Section 29 of the AUCA provides “…an appeal lies from a decision or order of the Commission to the Court of Appeal on a question of jurisdiction or on a question of law.” The general test to be applied on an application for permission to appeal is that the question of jurisdiction or law in issue raises a “serious, arguable point.”

In determining whether Mr. Dorin’s appeal raised a “serious, arguable point,” the ABCA considered:

(a)     whether the point on appeal was of significance to the practice;

(a)     whether the point raised was of significance to the action itself;

(b)     whether the appeal was prima facie meritorious;

(c)     whether the appeal would unduly hinder the progress of the action; and

(d)     the standard of appellate review that would be applied if leave were granted.

AUC Approval Without Having Received Ministerial Consent

One ground for appeal was raised on the basis that section 4(2) of the Edmonton Restricted Development Regulations (the “Regulation”) required the AUC to have received Ministerial consent before holding the hearing which produced the Decision under appeal.

The ABCA found that Mr. Dorin raised a “serious arguable point” on his appeal based on the following:

(a)     the point was of significance to the procedure to be followed by the AUC in this and in future cases;

(b)     if the ultimate interpretation resulted in a conclusion that the AUC acted prematurely it would be of significance to the approval process for the Substation;

(c)     the appeal had merit to the extent that the basis for it could be articulated and there was no authority directly resolving the interpretation of section 4(2) of the Regulation. The plain wording of the section left open the argument that the only reasonable or correct interpretation of is that Ministerial consent was required before the AUC held its hearings or issued the Decision; and

(d)     nothing indicated that the appeal would disproportionately hinder the progress of the approval process even if ultimately unsuccessful.

The ABCA found that these observations existed no matter which standard of review must be exercised in relation to the Decision.

No authority was produced that directly addressed the interpretation of section 4(2) of the Regulation to resolve this point.

Mr. Dorin raised a variety of other issues in his oral and written argument. None of his related concerns rose to the level of being serious arguable points.

Summary

The ABCA granted permission to appeal in relation to a single issue, restated, as follows:

  • What was the effect, if any, of the absence of written consent by the Minister of Infrastructure given prior to the making of the Decision by the AUC, on EPCOR’s ability to proceed to have the Substation built and made operational?

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