Permission to Appeal – Error of Law
Application
Michael Judd applied for permission to appeal a decision of the AER, which dismissed a pre-hearing motion brought by Mr. Judd in a regulatory appeal of a pipeline licence (the “Pipeline Licence”) granted to Pieridae Alberta Production Ltd. (“Pieridae”).
Decision
The ABCA granted permission to appeal on a extricable question of law framed as follows: “when the AER panel considered whether the information requested by Mr. Judd was relevant and material to the issues in the regulatory appeal did they err in law by effectively confining themselves to the information obtained by the AER under Directive 056, Energy Development Applications and Schedules (“Directive 056”)?”
Pertinent Issues
Background
The AER granted the Pipeline License following an application by Pieridae in accordance with Directive 056, and the Pipeline Act. Mr. Judd requested and was granted a regulatory appeal of the decision to issue the Pipeline Licence. After the AER established a panel of hearing commissioners (“Panel”) to hear the regulatory appeal, Mr. Judd was concerned that the record of the decision maker produced by the AER for the regulatory appeal contained no information relevant to Pieridae’s financial/capability assessment and compliance history, including its eligibility to acquire and hold a licence for energy development in Alberta. Mr. Judd brought a motion seeking an order requiring disclosure of information obtained by the AER under Directive 067, Eligibility Requirements for Acquiring and Holding Energy Licences and Approvals (“Directive 067”), and Directive 088, Licensee Life-Cycle Management (“Directive 088”). Mr. Judd argued that the information was relevant and material to understanding the adverse impact the Pipeline Licence may have on him.
In deciding the motion, the Panel stated that it would consider whether the information requested by Mr. Judd is relevant and material to the proceeding. The Panel denied the motion holding that Pieridae’s initial and ongoing licence eligibility were not included in the issues the Panel established for the regulatory appeal hearing. The Panel also held that the determination of licence eligibility under Directive 067 is a separate regulatory process from deciding an application for a new license under the Pipeline Act and that the holistic licensee assessment referred to under Directive 088 is also a separate regulatory process from deciding an application for a new licence under the Pipeline Act.
The Panel concluded that Mr. Judd had failed to address how the information he requested may relate to the decision’s direct and adverse effect on him or how it may benefit the AER in making its decision on the regulatory appeal.
Mr. Judd submitted that the AER made an error of law by treating information collected by the AER as siloed under its practice directives, failing to consider that:
- determining relevance and materiality based on the AER’s separation of regulatory processes; that is, procedural distinction between Directives 067 and 088 and Mr. Judd’s regulatory appeal, has no support in the AER governing enactments,
- eligibility to hold a pipeline licence is a requirement when applying for a licence and the financial and other capacities of an applicant to meet their regulatory obligations remain a relevant and material consideration for the AER throughout the energy development life-cycle, and
- the AER must determine the issues in the regulatory appeal concerning the assessment of risk associated with Pieridae, as the pipeline licensee.
ABCA Decision
The ABCA held that a determination of relevance and materiality is ordinarily a question of mixed fact and law and that Mr. Judd identified the following extricable question of law: when the panel considered whether the information requested by Mr. Judd was relevant and material to the issues in the regulatory appeal, did they err in law by effectively confining themselves to the information obtained by the AER under Directive 056?
The court found that the issue raised by Mr. Judd involves his ability to fully understand the adverse impact the Pipeline Licence may have on him; that is, to know the case against him. According to the ABCA, the questions was whether the Panel fell into reviewable error by incorrectly restricting the scope of potentially relevant and material information. Although the decision Mr. Judd seeks to appeal was an interlocutory one, the court found the question of general importance because the answer has potential application beyond this regulatory appeal.
The ABCA was of the view that the issue on appeal was also significant to the decision itself and that Mr. Judd’s argument that the AER’s governing enactments do not support the Panel’s emphasis on the separation of regulatory processes has sufficient merit to warrant review by the ABCA.
