Review and Variance – Rule 016 – Alberta Court of Appeal
ATCO Power Ltd. (“ATCO”) sought a review and variance pursuant to Rule 016: Review and Variance of Commission Decisions (“Rule 016”) of Decision 2014-242, which dealt with the 2013 and 2014 ISO Tariff update. ATCO alleged three errors of fact, law and jurisdiction:
(a) Approving the rate applied to supply transmission service customers (“STS”) and the rate applied to import opportunity service (“IOS”) notwithstanding ATCO’s concerns raised in the proceeding;
(b) Deciding that load shed service for imports (“LSSi”) was an ancillary service under the Electric Utilities Act (“EUA”), and that LSSi costs are payable by demand transmission services rate customers under the ISO tariff; and
(c) Rejecting the rate proposal made by TransCanada Energy Ltd. (“TCE”) to include “supply opportunity service” (“SOS”) in the ISO Tariff.
On the first ground, ATCO submitted that the hearing panel erred in mischaracterizing ATCO’s concerns about unduly discriminatory service between STS and IOS customers, as being about the operational requirements of ISO Rule 203.1, which imposes more onerous obligations on STS customers. ATCO also submitted that the hearing panel compounded on the previous error by dismissing such concerns as being more appropriately handled via the complaints process pursuant to section 25 of the EUA, thereby closing its mind to consideration of those issues.
A number of parties, including TCE and the Alberta Electric System Operator (“AESO”), submitted that ATCO had not established that any alleged errors could lead the AUC to materially vary or rescind the decision in question.
The AUC held that the first ground could not be substantiated, holding that the hearing panel made no decisions in respect of characterizing ATCO’s concerns in any way. The AUC also held that the alleged error was not material or relevant to its ultimate determination that STS and IOS complied with legislative requirements. The AUC found that ATCO’s submissions amounted to nothing more than “argument that the hearing panel failed to give certain parts of the evidence the weight desired by ATCO”.
With respect to the second ground, ATCO submitted that the hearing panel incorrectly interpreted sections 17(a), (b), and 30 of the EUA, in addition to section 15, 16, and 17 of the Transmission Regulation by applying an incorrect interpretation of “satisfactory level of service” and by failing to distinguish between transmission access for intra-Alberta generators and transmission access for importers. ATCO also submitted that the hearing panel incorrectly interpreted “reasonable opportunity” for market participants to access the Alberta market to mean “unfettered access” for market participants.
The hearing panel determined that LSSi fell within the definition of “ancillary service” because LSSi is required by the AESO to provide a satisfactory level of service with an acceptable level of voltage and frequency.
The AUC determined that ATCO had not shown that an error in fact or law exists, holding that the hearing panel considered, but did not accept, ATCO’s arguments on the same point. The AUC held that there was a sufficient legal and factual basis for the hearing panel to approve the allocation of LSSi in the ISO tariff.
With respect to the third ground, ATCO submitted that its argument was premised on the hearing panel having erred in fact or law in reiterating in the decision that there are no implicit or explicit transmission rights in Alberta.
The AUC held that, in the interest of regulatory efficiency, its decision on this point will be deferred until the appeal of AUC Decision 2013-025 is concluded or abandoned, noting that a similar ground was advanced in that case, and would likely receive consideration by the Alberta Court of Appeal.
In the result, the AUC dismissed the first and second ground of review, and deferred the third ground of review until such time as the Alberta Court of Appeal renders a decision in respect of AUC Decision 2013-025.
