Review and Variance – Procedural
On February 10, 2023, Wheatland Industries Inc. (“Wheatland”) applied for a review and variance of Decision 26395-D01-2021 issued on November 12, 2021, which decision approved the construction and operation of the Kirkcaldy Solar Energy Centre (the “Decision”).
The AUC denied the application from Wheatland for review and variance of Decision 26935-D01-2021.
Alberta Utilities Commission Act, SA 2007, c A-37.2.
Code of Conduct Regulation, Alta Reg 58/2015.
AUC Rule 016: Review of Commission Decisions
The AUC stated that s 3 of AUC Rule 016: Review of Commission Decisions (“Rule 016”) provides that a person who is directly and adversely affected by a decision may apply for a review of the decision within 30 days of the decision being issued and that the AUC may authorize that an application for review of a decision be filed outside of the 30-day period. Under s 3 of Rule 016, a person who was not a party to the proceeding that gave rise to the decision must obtain leave (permission) of the AUC before applying for review.
The AUC found that Wheatland was not a party to Proceeding 26395, its application for review was filed approximately 15 months after the issuance of the Decision, and that Wheatland did not request leave to file its application for review, nor did it seek the AUC’s authorization to file its application outside of the 30-day period.
The AUC noted that if a person did not participate in the original proceeding, the review panel must determine in the review proceeding whether that person has demonstrated that he or she is directly and adversely affected by the decision. A person is directly and adversely affected if he or she meets the two-part test established by the Alberta Court of Appeal: a person must assert a right that is recognized by law (legal test); and a person must provide enough information to show that a decision has the potential to directly and adversely affect the person’s right, claim or interest (factual test).
Wheatland asserted that its right to reject unprofessional and deceitful manipulation of the public trust anywhere and, at any time it becomes apparent, and its right to a fully disclosed, public proceeding was affected. It submitted that the latter was directly and adversely affected because (i) of “unacceptable deviation and omission of obligatory process” in the original proceeding, (ii) the original proceeding “in no way offered candid disclosure of critical project knowledge nor revealed or adequately portrayed the horrendous adverse consequences of the upsizing of the project”, and (iii) the original proceeding “was not executed in good faith.”
The AUC found that the rights asserted by Wheatland are procedural in nature, which are only triggered if a person has a substantive right that is directly and adversely affected by the Decision. Since Wheatland has asserted no such substantive right, the review panel determined that the Wheatland did not demonstrate that it meets the test for standing in s 3 of Rule 016, which requires the person to be directly and adversely affected. Consequently, the AUC denied leave to Wheatland to proceed with its review application.
Notwithstanding the denial of leave to Wheatland, the AUC also considered whether to review the Decision on its own motion under s 2 of Rule 016 and concluded that there were no exceptional or extraordinary circumstances that would warrant a review of the Decision.