Electricity – Stay Application
Application
AlphaBow asked the AER to grant it a regulatory appeal of a decision issued by the AER (the “Decision”), and a stay of portions of the order following the Decision. The AER dismissed AlphaBow’s application for a stay pending the AER’s determination of AlphaBow’s request for regulatory appeal. In this decision, the Alberta Court of Appeal (“ABCA”) considered AlphaBow’s request to stay certain parts of the Decision.
Decision
The ABCA dismissed the application for stay. It determined that Rules 3.23(1), 14.37(1), and 14.48 of the Alberta Rules of Court are not broad enough to authorize a single judge to stay an order of the AER that is not the subject of a permission-to-appeal application to the ABCA. Moreover, the ABCA’s inherent jurisdiction or implicit authority cannot be invoked to obtain such authority.
Applicable Legislation
Pertinent Issues
Rule 14.48 of the Alberta Rules of Court specifically deals with applications for a stay of a decision of a judge from the Court of King’s Bench. The ABCA held that the fact that Rule 14.1(1)(f) defines “decision” broadly does not change the nature of the decision-maker. The definition incorporates the decisions of and creates a specific rule for a particular decision-maker. Therefore, Rule 14.48 cannot apply.
Rule 14.37 of the Alberta Rules of Court authorizes a single appeal judge to “decide any application incidental to an appeal”. Although AlphaBow has a pending permission-to-appeal application relating to another AER decision, it was not sufficiently linked to the Decision to warrant that the authority contained in Rule 14.37 can be invoked.
Rule 3.23(1) of the Alberta Rules of Court will not apply, as it is available only if the applicant has filed an originating application for judicial review.
The lawmakers have already delineated the extent of jurisdiction of a single appeal judge to grant the stay of an order. The court’s inherent power cannot be used to create an additional head of power not bestowed on the ABCA by legislation or regulation.
