Alberta Electric System Operator v Kalina Distributed Power Ltd., 2021 ABCA 354
In this decision, the Alberta Court of Appeal (“ABCA”) granted the application from the Alberta Electric System Operator (“AESO”) to be added as a respondent to an application for permission to appeal Alberta Utilities Commission (“AUC”) Decision 26090-D01-2021 re FortisAlberta Inc. Distribution-Connected Generation Credit Module for Fortis’s 2022 Phase II Distribution Tariff Application (the “DCG Credit Decision”).
FortisAlberta Inc. (“FortisAB”) filed an application with the AUC, seeking approval of its 2022 Phase II distribution tariff. The AUC decided to bifurcate that proceeding to address DCG credit-related matters in a separate proceeding. In the DCG Credit Decision, the AUC had directed FortisAB, ATCO Electric Ltd. (“AE”) and ENMAX Power Corp. (“ENMAX”) to file amendments to eliminate the DCG credit tariff provisions from their tariffs over a five-year period on a sliding scale.
Kalina Distributed Power Limited, Lionstooth Energy Inc., Signalta Resources Limited, and Campus Energy Partners L.P. (collectively “KLSC”) sought permission to appeal the DCG Credit Decision alleging multiple errors of law and jurisdiction.
AESO’s Application to be Added as a Respondent or Intervenor
Rule 14.57 states that parties may be added to an appeal in accordance with Rule 3.74, which permits parties to be added by the Court on application where “the Court is satisfied the order should be made”. Under Rule 14.37 and 14.58, applications to intervene must establish that the applicant will (i) be directly and significantly affected by the appeal’s outcome; and (ii) provide some expertise or fresh perspective that will be helpful in resolving the appeal.
As underlined in Balancing Pool v ENMAX Energy Corporation, 2018 ABCA 143, the ABCA has generally discouraged applications to be added at the permission to appeal stage of a proceeding, and this relief will only be granted in extraordinary circumstances.
Test to be Added as a Party
To be added as a party respondent, the AESO had to show (i) it has a legal interest in the matter; (ii) it is just and convenient; and (iii) its interest would be adequately protected only if it was granted party status.
The ABCA was satisfied that the AESO had shown that it has a legal interest in the outcome of the proceeding, as its statutory mandate regarding the operation of the interconnected electric system and the promotion of a fair, efficient and openly competitive electricity market will be impacted by the review of the DCG Credit Decision.
The ABCA further found that it is just and convenient to add the AESO as a party as the issues raised by KLSC involve matters where the AUC referred in part to evidence or submissions presented by the AESO on issues which relate to the AESO’s statutory mandate. The ABCA finally found that the AESO will bring a valuable perspective to the application and any following proceeding as only the AESO and the AUC have a public interest mandate. Accordingly, it may be expected that the AESO’s perspective is not identical to those of the distribution utilities. The AESO demonstrated that it meets all criteria to be added as a participant at the appeal stage of a proceeding.
The ABCA determined that in this case, the extraordinary circumstances justifying the addition of a party at this stage in a proceeding were present. The AESO has a legal interest in the matter, was a full participant in the prior proceeding, and will be a participant in the other permission to appeal application being heard on the same day arising out of the same proceeding and will bring a unique perspective.
The application was granted, and the AESO was added as a respondent.