The appeal by a pipeline owner (“TransCanada”) from a decision of the Alberta Energy and Utilities Board (the “Board”) concluding that the Board had jurisdiction over the pipeline because the pipeline supplied gas to or for the public, was dismissed where the Court found that the Gas Utilities Act provided the Board with the power to conduct an investigation of any matter concerning a gas utility

Administrative law – Decisions of administrative tribunals – Energy and Utilities Board – Public interest – Powers to investigate – Natural resources – Natural gas – Distribution – Judicial review – Public utility – definition – Compliance with legislation – Jurisdiction of tribunal

TransCanada Pipeline Ventures Ltd. v. Alberta (Energy and Utilities Board), [2008] A.J. No. 407, Alberta Court of Appeal, February 19, 2008, J. E. L. Cote, C. M. Conrad and P. A. Rowbotham

TransCanada appealed the decision of the Board concluding that it had jurisdiction over a pipeline owned and operated by TransCanada because the pipeline supplied gas to or for the public. TransCanada submitted that the context for the finding that the Board had jurisdiction was the presence of a monopoly or market power due to the lack of competition. TransCanada argued that this is what triggered the need to safeguard the public interest in the nature and quality of utilities services. TransCanada contended that the Board failed to determine the existence of competition and that without such a determination the Board had no jurisdiction. TransCanada further contended that the pipeline was not a “gas pipeline” as defined in section 1(f) of the Gas Utilities Act, R.S.A. 2000, c. G-5, because it did not convey gas from a well-head or other place at which it was produced to any other place, or from a place where it was stored, processed or treated to any other place.

The Court of Appeal disagreed with the submissions of TransCanada. The Court found that the Board’s conclusion that the pipeline was a gas utility under section 1(g)(ii) of the Act was reasonable. The existence of a monopoly or lack of competition were factors which the Board could consider but the Act did not require that these be determined before the Board found that something fell within the definition in section 1(g). The Court noted that finding the existence of competition required information. Information could be obtained by the Board by an investigation and section 24 of the Act provided the Board with the power to conduct an investigation of “any matter concerning a gas utility”. Based on this interpretation, the Court concluded that a thing had to have been found to be a gas utility before the Board could investigate and determine whether a monopoly exists.

In the result, TransCanada’s appeal was dismissed.

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