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AlphaBow Energy Ltd v Alberta Energy Regulator, 2023 ABCA 221

Link to Decision Summarized

Permission to Appeal

Application

AlphaBow Energy Ltd. (“AlphaBow”) applied for permission to appeal a decision of the AER that dismissed its request to stay a reasonable care and measures order (“RCAM Order”) issued by the AER.

AlphaBow argued that the AER erred in law in determining that AlphaBow had failed to demonstrate that: it would suffer irreparable harm if the RCAM Order was not stayed pending its regulatory appeal before the AER; and the balance of convenience weighs in favour of granting the stay.

Decision

The ABCA denied the application for permission to appeal submitted by AlphaBow. The ABCA determined that there was no extricable question of law, as required by section 45(1) of the Responsible Energy Development Act (“REDA”).

Pertinent Issues

AlphaBow raised several issues regarding the AER’s application of the well-known tripartite test for both, interlocutory injunctions and stays, established by the Supreme Court of Canada in RJR-MacDonald Inc v Canada (Attorney General) (“RJR-MacDonald”).

The ABCA noted that section 45(1) of the REDA permits appeals “on a question of jurisdiction or on a question of law” and accepted that the standard of review for issues of law and procedural fairness is correctness.

The ABCA held that, absent an extricable question of law, the application of the tripartite test in RJR-MacDonald to the facts of a particular case is considered a question of mixed fact and law.

The ABCA was not convinced that any of the issues raised by AlphaBow amount to questions of law and concluded that AlphaBow did not seek to appeal the AER’s stay decision on a question of law or jurisdiction. Accordingly, the ABCA dismissed the application for permission to appeal pursuant to section 45(1) of the REDA.

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