Permission to Appeal – Denied
In this decision, the ABCA considered an application by a number of landowners’ (the “Applicants”) for permission to appeal AUC Decision 22665-D01-2018 (the “AUC Decision”). In the AUC Decision, the AUC approved applications (the “Applications”) by EDP Renewables SH Project GP Ltd. (“EDP”) for approval of the Sharp Hills Wind Project (the “Project”).
The ABCA denied permission to appeal, based on finding that the Applicants did not demonstrate a serious, arguable question of law or jurisdiction arising from the AUC Decision.
Background
The Project involved construction of 83 wind turbines and a substation in the New Brigden and Sedalia areas, in southeastern Alberta. The Applicants owned land near the Project and opposed its approval.
The Applicants opposed the Project in part because it would impact three private airstrips located near the Project area. In total, the Project would place 21 wind turbines within four kilometres of these airstrips. The AUC was “of the view that EDP has sited the project turbines at sufficient distances from the three airstrips to allow the three airstrips to be operated safely.”
The AUC approved the Project and released the Decision on September 21, 2018.
Test for Leave to Appeal
Pursuant to section 29(1) of the Alberta Utilities Commission Act, an appeal lies from a decision or order of the AUC to the ABCA on a question of jurisdiction or law. To succeed, an applicant must demonstrate that the question of law or jurisdiction raises a “serious, arguable point.” The ABCA considers the following factors in determining whether an applicant has satisfied this test:
(a) whether the point on appeal is of significance to the practice;
(b) whether the point raised is of significance to the action itself;
(c) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous;
(d) whether the appeal will unduly hinder the progress of the action; and
(e) the standard of appellate review that would be applied if leave were granted.
The ABCA referred to the to Supreme Court of Canada (“SCC”)’s decision ATCO Gas and Pipelines Ltd. v Alberta (Utilities Commission), 2015 SCC 45, in which the SCC reiterated that to the extent an appeal turns on the AUC’s interpretation of its home statute(s), a standard of reasonableness presumptively applies.
Grounds for Making the Application
The Applicants raised two issues in their application for permission to appeal:
(a) The AUC erred in law or jurisdiction by failing to observe the principles of procedural fairness by:
(i) failing to provide the Applicants with adequate time to prepare for the public hearing and, in particular, by denying the Applicants’ request for an adjournment of the public hearing;
(ii) following a hearing process which provided the Applicants with no opportunity to test and challenge key evidence; and
(iii) failing to critically assess the evidence given by the experts for EDP in light of their close ties to the wind energy industry.
(b) The AUC erred in law or jurisdiction by incorrectly and unreasonably interpreting documents published by Transport Canada (the “Transport Canada Documents”), and relying upon that incorrect and unreasonable interpretation in finding that the placement of turbines in proximity to airstrips was consistent with public safety and public interest.
Did the AUC Err in Law or Jurisdiction by Failing to Observe Procedural Fairness Principles?
The Applicants argued that the AUC’s failure to observe the rules of procedural fairness raised a serious, arguable point of law. They asserted issues of procedural fairness clearly have significance to both the practice in general and the action itself.
Denial of Adjournment Request
The ABCA rejected the Applicants’ argument that by denying their request for an adjournment of the public hearing, the AUC failed to provide the Applicants with adequate time to prepare for the hearing.
The ABCA concluded that no question of law or jurisdiction existed and accordingly denied permission to appeal on this ground.
The ABCA noted that the Applicants had ten days to prepare their expert witnesses before the commencement of the hearing. The ABCA found that there was no merit to the Applicant’s submissions that the AUC’s decision to grant merely a one-day adjournment was unfair.
Reliance on AEP’s Referral Reports
The ABCA found the AUC’s review of the evidence was “clearly within its purview”. Accordingly, the ABCA found no question of law or jurisdiction existed and denied permission to appeal on this ground.
Although the Applicants were not entitled to cross-examine on AEP’s Referral Reports at the hearing, the ABCA noted they were afforded the opportunity in advance of the hearing to submit written questions to AEP and to receive its response. Further, AEP’s Referral Reports were based on evidence provided in many instances by EDP’s expert witnesses, who were available for cross-examination at the hearing.
Reliance on EDP’s Expert Witnesses
The ABCA found the substance of this ground was a complaint regarding the manner in which the evidence, and in particular the expert evidence, was dealt with and reviewed by the AUC. The ABCA found that no question of law or jurisdiction could be extricated from this exercise and accordingly permission to appeal on this ground was denied.
Did the AUC Err in Law or Jurisdiction by Incorrectly and Unreasonably Interpreting Documents Published by Transport Canada?
The ABCA found that the AUC did not unreasonably interpret the Transport Canada Documents. More importantly, there were no Transport Canada airport regulations that governed the Project. The ABCA confirmed that the use of lands outside of an unregistered aerodrome property was governed by provincial and municipal governments, not Transport Canada.
The ABCA found the AUC’s conclusion that the placement of the turbines did not create a risk to public safety was a question of mixed fact and law. As a result, the Applicants did not show there was an issue of law or jurisdiction arising from the AUC’s interpretation of the Transport Canada Documents.
Summary
Based on finding that the Applicants did not demonstrate that the questions of law or jurisdiction raised a serious, arguable point, the ABCA denied permission to appeal.
