In this decision, both a Majority (Crighton, J.A. and Pentelechuk J.A) and Minority (O’Farrall J.A.) of the Alberta Court of Appeal dismissed the appeal from Mark Dorin (the “Appellant”) on a question of law and/or jurisdiction that arose from the Appellant’s interpretation of section 4(2) of the Edmonton Restricted Development Area Regulations, Alta Reg 287/1974 (“ERDAR”), which provides as follows:
4(2) No Minister of the Crown, government official or government agency shall, without the written consent of the Minister of Infrastructure, exercise any power under the Municipal Government Act, the Pipe Line Act, the Water Resources Act or any other Act to order, authorize, approve, permit or consent to any operation or activity that causes, is likely to cause or will cause a surface disturbance of any land in the Area, or issue or cause to be issued any order, authorization, approval, permit, licence or consent instrument for that purpose.
The Appellant challenged the AUC’s jurisdiction to enter into inquiries relative to EPCOR’s application, including conducting a hearing, on grounds the Minister of Infrastructure had not yet provided written consent for the project to be located in the transportation utility corridor (the “TUC”).
The AUC concluded that it had jurisdiction to consider and approve EPCOR’s application so long as EPCOR provided to it a written consent from the Minister of Infrastructure for the construction and operation of the project within the TUC.
Upon receipt of the Commission’s decision on the question of jurisdiction, the Appellant ceased participating in the process. The project was approved by the Commission, the Minister’s consent was provided to EPCOR under s 5(2)(b) of the Edmonton Restricted Development Area Regulations, and the necessary permits and licences were issued to EPCOR to begin construction of the substation.
The Appellant did not seek judicial review of the Minister’s consent, nor did he apply for a stay of the Commission’s decision. The Court of Appeal noted that the Substation has now been constructed and is operational.
Findings of the Majority
The Majority found that the issue between the parties was moot. The Majority further noted that it was not persuaded that the question was evasive of review. More importantly, the Majority noted that it declined to interpret s 4(2) of the ERDAR without notice to and possible participation of the Minister.
Even if an error of law occurred in the order in which permission was granted in this case (which the Majority declined to determine), the Majority was satisfied no substantial wrong or miscarriage of justice has occurred and no significant prejudice had been experienced by any party.
Findings of the Minority
The Minority found that two separate and distinct ministerial consents were required under the ERDAR: consent to the AUC under s 4(2) before the AUC exercises any of its “statutory power” and before it issues any approval, permit or license; and consent to EPCOR under s 5(2)(b) before the commencement of any activity likely to cause a surface disturbance of land in the area.
Because of the location of the substation and because the construction of the substation involved an activity that would cause a surface disturbance of land within the Edmonton Restricted Development Area (“RDA”), the Minority found the AUC was unable to exercise its powers under the AUC Act or the Hydro and Electric Energy Act to hear or approve any applications involving surface-disturbing activities in the RDA without the written consent of the Minister of Infrastructure according to section 4(2) of the ERDAR made according to the Department of the Environment Act and later according to the Government Organization Act. The AUC did not receive the required consent from the Minister.
The respondent, EPCOR, was likewise prohibited by the ERDAR regulations from commencing construction of the substation and associated transmission line connections without the written consent of the Minister. EPCOR did receive the written consent of the Minister to construct and operate the substation after the AUC approved it.
However, the Minority found that the AUC’s failure to obtain the Minister’s consent to the exercise of its power to approve the substation did not adversely affect or prejudice the rights of the Appellant.
The Minority noted that Rule 14.75(2) of the Alberta Rules of Court provided that the Court of Appeal may dismiss an appeal despite an error of law where no substantial wrong or miscarriage of justice had resulted or where a decision would have been the same despite the error or where, despite the irregularity, no significant prejudice had been experienced by any party. The Minority found all the requirements of this rule had been met in this case, and dismissed the appeal.