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Alberta (Utilities Consumer Advocate) v FortisAlberta Inc., 2024 ABCA 12

Link to Decision Summarized

Cost of Capital – Permission to Appeal

Application

The Office of the Utilities Consumer Advocate (“UCA”) sought status as a respondent, or alternatively as an intervener, in the applications filed by FortisAlberta Inc. and Apex Utilities Inc. for permission to appeal the Alberta Utilities Commission (“AUC”) Decision 27084-D02-2023, Determination of the Cost-of-Capital Parameters in 2024 and Beyond.

Decision

The ABCA approved the application, granting UCA status as a respondent in the permission to appeal proceeding.

Pertinent Issues

The UCA submitted that, because the AUC is constrained in its role before the ABCA and there was no party opposing the applications for permission to appeal, the UCA should be granted status as a respondent to protect the interest of the consumers, which it represents. Consumers have a direct interest in the subject matter as their rates may be affected by the outcome of the appeal.

The ABCA considered two issues: what is the test for granting respondent status and whether it is appropriate to add parties at the permission stage. The test for granting respondent status is the joinder test, which requires determining whether the applicant has a legal interest in the outcome of the proceeding. If yes, the court looks if it is just and convenient to add the applicant and whether the applicant’s interest would only be adequately protected if it were granted party status.

While the ABCA is generally reluctant to add parties at the permission to appeal stage, it will do so if the party seeking to be added establishes that it satisfies the joinder test and provides a different or unique perspective in the permission to appeal application.

The ABCA determined that the UCA demonstrated sufficient legal interest in the outcome of the proceeding by virtue of its statutory mandate. Given the constraints on the AUC’s role in proceedings before this ABCA, the interest of the consumers represented by the UCA will not be otherwise adequately protected. Finally, by virtue of the UCA’s statutory mandate, it will bring a unique and valuable perspective to the leave application and any subsequent proceedings that may result.

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