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City of Calgary Decision on Preliminary Question – Application for Review of Decision 20514-D02-2019 and Commission Rulings on Eligibility for Costs Recovery (Decision 24760-D01-2019)

Link to Decision Summarized

Review and Variance, Costs Rulings 

In this decision, an AUC review panel considered whether to grant a review application filed by the City of Calgary (“Calgary”) on costs rulings (the “Costs Rulings”) made in the ATCO Gas and Pipelines Ltd. and ATCO Electric Ltd. Information Technology Common Matters Proceeding (the “IT Common Matters Proceeding”). The AUC review panel denied the review application.  


Canadian Utilities Limited controls CU Inc., which in turn owns 100 per cent of ATCO Electric Ltd. and ATCO Gas and Pipelines Ltd. (the “ATCO Utilities”).

An AUC hearing panel had ruled that Calgary, as a municipality, was ineligible to claim recovery of costs incurred with its intervention in AUC rate proceedings. The hearing panel made reference to the long-standing rationale for the exclusion of municipalities from the cost recovery mechanism, noting that the AUC’s cost recovery rule states that the AUC may award costs to an intervener representing persons with a “substantial interest in the subject matter” of a proceeding, but which “does not have the means to raise sufficient financial resources to enable [it] to present its interests adequately.”

Calgary submitted that previously unavailable facts could lead the AUC to materially vary or rescind the Costs Rulings. These previously unavailable facts included significant delays in the IT Common Matters Proceeding, limited transparency and disclosure of information, an expanded scope in that proceeding, the need for repeated motions, and the extent of the confidential material on the record.

Calgary also submitted that the Costs Rulings contained errors in fact or mixed fact and law that could lead the AUC to materially vary or rescind the Costs Rulings. These errors of fact or mixed fact and law related to the hearing panel’s consideration of: the scope of the proceeding, the implications of not granting costs recovery eligibility with regard to the conduct of the ATCO Utilities and its shareholders, the “free-rider” effect and the benefits of confidential treatment of information.

The review panel rejected Calgary’s arguments regarding previously unavailable facts. It noted that Rule 022 does not set out criteria for cost eligibility based on the anticipated duration or complexity of a proceeding, or if the costs of participation exceed what was initially anticipated. It emphasized that the exercise of discretion with respect to costs should not be interfered with lightly. The review panel also noted that the hearing panel would have been fully aware of the ATCO Utilities lengthy and contentious history of IT master service agreement related proceedings when it made its Costs Rulings.

The review panel also rejected arguments regarding errors in fact or mixed fact and law. It found no errors in the proceeding scope and noted that Rule 022 does not contemplate costs recovery eligibility as a means to manage conduct between parties. It noted that the “free-rider” issue was directly considered by the hearing panel, and found no errors were made by the hearing panel by not expressly considering the existence of confidential material in making its determination.

The application for review was dismissed.

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