An Energy, Environmental & Regulatory Law Update On July 16, 2009, the Alberta Court of Appeal in Big Loop Cattle Inc. v. Alberta (Energy Resources Conservation Board) (“Big Loop”) denied an application from parties that had intervener status at an ERCB proceeding seeking the same status in a leave to appeal application respecting the same ERCB decision.
Historically, parties granted intervener status in applications to the Energy and Utilities Board (the predecessor to the ERCB and AUC) were, without interference from the Court, given similar standing in leave to appeal applications, allowing them the opportunity to make submissions before the Court.
Indication that this practice was shifting first appeared in Carbon Development Partnership v. Alberta (Energy and Utilities Board) (“CDP”). Justice Hunt, sitting alone, considered four applicants' submissions to participate in a leave to appeal application of a decision of the Board. The Court, in what was uncharacteristic at the time, embarked on an examination and application of the formal test to be granted intervener status in leave to appeal applications. Though ultimately leave to intervene was granted, this decision served as notice that the practice of near automatic participation for parties that had taken part in the Board proceeding as interveners may be changing.
The following year the Court of Appeal revisited this issue. In Provident Energy Ltd. v. Alberta (Utilities Commission) (“Provident”) the Court, sitting as a motions panel, denied an application by three parties to participate as interveners in a leave to appeal application. Relying on CDP the Court stated that leave to intervene in a leave to appeal application will only be granted in “very exceptional circumstances”. The Court indicated that to be granted leave a party would, at a minimum, need to demonstrate that they possessed special expertise and perspective from that of the participating parties.
This position has now seemingly been entrenched as in Big Loop the Court relied on CDP and Provident in denying the applications of a number of parties that had intervened in the Board hearing and then sought leave to participate in a leave to appeal application. The Court's decision was delivered from the bench and without written reasons. This decision indicates that the transition is now complete and future applications seeking leave to intervene in leave to appeal applications will likely meet the same fate in all but the most unique circumstances.
However, it is important to note that the Court of Appeal's new approach is with respect to applications to intervene in applications for leave to appeal. The Court is saying that applying to intervene at the leave stage is premature. Rather, applications to intervene should be made only after leave to appeal has been granted.
Interestingly, on July 20, 2009 the Court of Appeal released its decision in TransCanada Pipeline Ventures Ltd. v. Alberta (Utilities Commission) (“TransCanada”) which also touches this matter. Here, Suncor Energy had participated in an Alberta Utilities Commission (“AUC”) proceeding as an intervener and sought leave to participate in the leave to appeal application. The Court granted Suncor status as a Respondent in the application. While Suncor was described as an “intervener” in the AUC proceeding, in fact the proceeding was commenced by the Commission in response to a formal complaint made by Suncor. Thus, Suncor was really more of an applicant before the AUC than an intervener – it is likely for this reason that the Court allowed their application.
This Alert is a general overview of the subject matter and cannot be regarded as legal advice. For advice on this or any other energy, environmental or regulatory law topic please contact Ron Kruhlak in Edmonton, Gavin Fitch in Calgary, or any member of our Energy, Environmental & Regulatory Practice Group. |
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