Request for Regulatory Appeal – Well Licence Transfer
In this decision, the AER considered a request for a regulatory appeal filed by Tobinsnet, under section 38 of the Responsible Energy Development Act (“REDA”), of the closure by the AER of Application No. 1923203 (the “Application”) for the transfer of two well licences. The AER dismissed the regulatory appeal request.
The applicable provision of REDA with regard to regulatory appeals, section 38, states:
38(1) An eligible person may request a regulatory appeal of an appealable decision by filing a request for regulatory appeal with the Regulator in accordance with the rules.
Section 36(a) of REDA defines an “appealable decision.” For the present purposes, the relevant definition is contained in section 36(a)(iv), which states that an appealable decision includes:
(iv) a decision of the Regulator that was made under an energy resource enactment, if that decision was made without a hearing.
The phrase “eligible person” is defined in section 36(b)(ii) of REDA to include:
(ii) a person who is directly and adversely affected by a decision referred to in clause (a)(iv).
The applicable deadline in the circumstances for filing a request for regulatory appeal is provided in section 30(3) the Alberta Energy Regulator Rules of Practice (“Rules”):
(m) in the case of a regulatory appeal in respect of any other appealable decision, no later than 30 calendar days after notice of the decision is issued.
Section 1(1)(f) of REDA states that a decision of the AER includes an approval, order, direction, declaration or notice of administrative penalty made or issued by the AER. REDA section 1(1)(b) specifies that an approval means “a permit, licence, registration, authorization, disposition, certificate, allocation, declaration or other instrument or form of approval, consent or relief under an energy resource enactment or a specified enactment.”
Section 3(4) of the Rules states the following:
(4) If an application is not complete in the opinion of the Regulator, the Regulator may (a) notify the applicant in writing and request the information necessary to make the application complete, or (b) return the application to the applicant as incomplete.
Section 27 of REDA provides the following:
27 No action or proceeding may be brought against the Regulator, a director, a hearing commissioner, an officer or an employee of the Regulator, or a person engaged by the Regulator, in respect of any act or thing done or omitted to be done in good faith under this Act or any other enactment.
The AER found that Tobinsnet failed to provide any analysis to demonstrate why it was eligible to request a regulatory appeal of the Application closure.
The AER explained that it closed the Application without prejudice as incomplete by a letter dated September 30, 2019, because the agent proposed by Tobinsnet did not meet regulatory requirements. The licences requested to be transferred in Tobinsnet’s subject Application, which was initially closed without prejudice on September 30, 2019, were approved and transferred to Tobinsnet in a subsequent application process on January 22, 2020. The AER found that this made this regulatory appeal request moot and gave the AER sufficient grounds to dismiss the regulatory appeal request.
The AER also found that a closure of an application under the Rules is not an “appealable decision” as required by section 38(1) of the REDA because the Rules are not an energy resource or specified enactment. Consequently, the Application closure could not be appealed.
The AER rejected Tobinsnet’s attempt to use the regulatory appeal process to expand its relief to request compensation for alleged damages that resulted from a prior AER regulatory action or to request a regulatory appeal of a prior AER decision. The AER noted that that decision should have been challenged at the time it was issued in accordance with the regulatory appeal deadlines applicable to that decision. The AER found that Tobinsnet cannot use this process for a collateral attack of a different decision for which the challenge appeal deadline has long passed. Further, the AER noted that it has no authority to provide the compensatory financial relief sought through the regulatory appeal process.
The AER dismissed the request for regulatory appeal pursuant to section 39(4)(c) of the REDA.