Changes to Alberta Utilities Commission Rule 016

On December 14, 2023, the Alberta Utilities Commission (“AUC” or “Commission”) released Bulletin 2023-08 announcing amendments to Rule 016: Review of Commission Decisions (“Rule 016”). The revised Rule 016 will apply to applications for review or variance filed on or after February 1, 2024.

This article provides the background leading up to the amended Rule 016, summarizes some of the key changes to Rule 016, and provides comments on how these changes may impact review and variance applications.

Background

AUC rules are documents that set out requirements and processes to be implemented and followed by regulated utilities that are within the jurisdiction of the AUC. Rule 016 sets out the requirements for a request to review a decision of the AUC and the factors that will be considered when determining whether a review will be granted. An application for a review of a decision proceeds in two stages. At the first stage, the AUC determines the preliminary issue of whether a review should be granted, in whole or in part. If a review is granted, the application will move to the second stage, where a notice of hearing for the variance proceeding will be issued and the AUC will determine whether its earlier decision should be confirmed, rescinded, or varied.

In September 2023, the AUC announced it proposed amendments to Rule 016 as part of its ongoing review of its case management procedures, and its objective of improving the transparency, clarity, and simplicity of its rules. The AUC invited stakeholders to submit written comments on the proposed changes to Rule 016. The public comment period closed on October 20, 2023.

Summary of New Changes to Rule 016

Clarifies the Applicability of Rule 016: The amendments clarify that “decision”, for the purposes of Rule 016, does not include a complaint resolution letter made by the Compliance and Enforcement division of the AUC. In other words, there is no ability under Rule 016 to apply for a review and variance of a complaint resolution letter made by the Compliance and Enforcement division of the AUC.

Additional Information Requirements for Filing an Application: Amendments to section 4(1) of Rule 016 introduce additional information requirements to be included in an application, depending on the type of error alleged:

• If alleging an error of fact under subsection 5(1)(a), the alleged error of fact must be identified (new subsection 4(1)(e)); and
• If alleging an error of mixed fact and law where the legal principle is not readily extricable under subsection 5(1)(a), the legal test and facts that are at issue must be identified, alongside an explanation of how the AUC erred in applying the legal test to those facts (new subsection 4(1)(f)).

Page Limits for Response and Reply Submissions: Amendments now establish and codify the specific page lengths for written submissions, depending on the nature of the submission. Unless otherwise authorized by the Commission the new subsection 4(3) provides:

• Response submissions are permitted to be ten pages, double spaced; and
• Reply submissions must be no longer than seven pages, double spaced.

Clarifies Commission’s Powers to Dismiss an Application: Two new subsections have been added to Rule 016 to codify the AUC’s discretion to dismiss a review application, with or without further process, in the following situations:

• Where the application does not comply with the minimum information requirements set out in subsection 4(1) (new subsection 4(2)); and
• Where a ground in an application raises an error outside the scope of subsection 5(1) i.e., the error raised is not a question of fact or question of mixed fact or law (new subsection 5(3)).

Implements New Standard of Review: The amendments change the criteria the Commission may use to determine whether to grant an application for review of a decision under subsection 5(1)(a). In 2021, the AUC amended subsection 5(1)(a) to remove errors of law or jurisdiction[1] and to incorporate the civil standard of proof so that reviewable errors included those that were apparent on a balance of probabilities. The amended Rule 016 does away with that civil standard of proof and introduces the highly deferential standard of “palpable and overriding error”. The use of the “palpable and overriding error” threshold prescribes a higher level of deference to the original decision maker than that currently in place. Although this appears to be a more rigorous standard, it should be noted that the palpable and overriding error threshold is consistent with the appellate standard of review for errors of fact and mixed fact and law, which are the only types errors that can be claimed in an application under Rule 016 since the 2021 amendments.

The amended subsection 5(1)(a) goes on to provide a plain language definition of palpable and overriding error. Specifically, “[a]n error is palpable if it is obvious and is overriding if it has impacted the result.” Despite this attempt at clarity, it is expected that the proposed palpable and overriding error standard will entail some degree of uncertainty and confusion in its implementation.

Takeaway

Overall, the amendments to Rule 016 provide further clarity and efficiency to the review process for all parties involved. The additions to the content requirements for an application for review will simplify the process for drafting and replying to such applications. Further to this, the inclusion of a highly deferential standard of review may result in a reduction in applications for review or at least a potential reduction in the number of review applications approved.

If you have any questions regarding these new changes to Rule 016, please contact a member of the McLennan Ross Environmental & Energy group.