Regulatory Appeal – Extension of Time – Section 106 OGCA
This decision dealt with an individual’s request for a regulatory appeal filed on March 10, 2020 (“Request”) of an AER decision dated April 19, 2019 (“Decision”) issued pursuant to section 106 of the Oil and Gas Conservation Act (the “OGCA”). The individual also requested that the AER extend the time limit for filing of the Request or, alternatively, that the AER exercise its discretion and reconsider the Decision in accordance with section 42 of the Responsible Energy Development Act (the “REDA”).
The AER considered the individual’s request under section 38 of the REDA for a regulatory appeal of the Decision. The AER decided that there were compelling reasons and special circumstances that warranted allowing the late filing of the Request. Further, the AER decided that the individual is eligible to request a regulatory appeal in this matter and therefore granted the Regulatory Appeal.
There were two questions that were addressed. The first question was whether the AER should grant the late filing of the Request and the second question was whether the regulatory appeal should be granted and the matter referred to a hearing.
Lateness of the Request
The AER noted that statutory time limits for filing appeals of AER decisions serve important purposes. They provide a level of certainty to parties as to the validity and reliability of a decision. They also give assurance that proceedings relating to a decision will not continue into perpetuity. Requests for Regulatory appeals must be filed on time, unless there is a valid reason to depart from this requirement. The reason must be compelling or there must be special circumstances for making an exception. Factors such as why the request was not filed on time, the amount of time that has elapsed since the deadline, the significance of the decision and its impact on the requester, and the prejudice suffered by a party if the request is or is not allowed to be filed are all relevant when considering requests to extend the timelines for filing regulatory appeal requests under the AER’s Rules of Practice.
The AER noted that the individual’s counsel indicated he was not aware of the regulatory appeal process or its timelines until he consulted with counsel. However, the final paragraph in the letter accompanying the Decision clearly states that eligible persons may appeal AER decisions, provides the sections in the REDA where one should look to find out more about regulatory appeal requests, and directs the reader to the AER’s website for further information, including filing requirements and forms. The AER was of the view that the individual had sufficient information about the regulatory appeal process at the time the decision was issued to him but that he failed, or chose not to, review this information or inform himself further about the regulatory appeal process.
The AER noted that it was not helpful to the individual’s case that it took him approximately 10 months after the Decision was issued to make inquiries with a lawyer as to the proper processes involved with filing an appeal. He did not file his request until March 10, 2020, nearly 11 months after the Decision. The AER noted that the tardiness of the Request and his failure to follow instruction provided to him about the regulatory appeal process were significant factors and weighed strongly against extending the timeline for filing his Request.
However, the main factor in favour of granting the Request to be filed late is the significant and adverse impact a s.106 declaration has against him personally. The AER noted that other than the AER’s Compliance and Liability Management group (“CLM Group”) there is no other party prejudiced by the lateness of the individual’s request. If there were, this could easily have tilted the scales in favour of not allowing the request to be filed. As it is, the substantive impact of the Decision to the individual is at least as significant as the procedural irregularity and prejudice to the CLM Group that may be caused by allowing the late filing of his Request.
The AER also noted that the multiple correspondences that the CLM Group sent out regarding the declaration(s) would have been confusing for the individual in understanding the AER’s s. 106 appeal request process. There was the initial declaration issued on March 11, 2019, without considering the individual’s January 28, 2019 submission. Second, and as admitted by the CLM Group, the reconsideration letter issued on March 22, 2019 was issued by someone without the appropriate statutory authority. The AER also noted that when the individual began trying to access the AER’s internal appeal processes by asking the CLM Group staff to ‘reconsider’ the Decision, he was not told that there was a more suitable process available and was not directed to the AER’s Regulatory Appeal coordinator for further information about the regulatory appeal process. The CLM Group accepted the individual’s ‘reconsideration’ requests filed on April 1 and 3, 2019. The AER noted that all the above could have served to further confuse the individual as to the AER’s processes, and may even have created the expectation that he was ‘on the right track’ as far as appealing the Decision.
Consequently, the AER found that there were special circumstances and sufficient reasons that, on balance and by a very slim margin, warranted accepting the late filing of the Request.
The Merits of the Request
With regard to the eligibility question, the AER found that the individual is directly and adversely affected by the Decision, which imposes both obligations and restrictions on him, which is the purpose of declarations issued under section 106 of the OGCA. He is therefore an eligible person to request the regulatory appeal. The Decision was made pursuant to an energy enactment and is an appealable decision in accordance with the applicable provisions of the REDA and the AER Rules.
Consequently, the Request was granted and the matter was referred to a hearing before an AER panel of hearing commissioners for a further process to be determined by that panel. Given this, the AER found it unnecessary to determine the individual’s request for reconsideration.