The Appellant, Milner Power Inc., successfully sought leave to appeal a decision made by the Alberta Energy and Utilities Board with regards to its decision to decline to hold a hearing into the Appellant’s complaint

Administrative law – Decisions of administrative tribunals – Energy and Utilities Board – Natural resources – Judicial review – Compliance with legislation – Appeals – Leave to appeal – Test

Milner Power Inc. v. Alberta (Energy and Utilities Board), [2009] A.J. No. 989, 2009 ABCA 305, Alberta Court of Appeal, September 21, 2009, E.A. McFadyen J.A.

The Appellant, Milner Power Inc., sought leave to appeal two related decisions made by the Alberta Energy and Utilities Board (the “Board”). In 2000, the Board had directed the Alberta Electric System Operator (“AESO”) to study the use of an “average MW” approach to calculate transmission line losses. The Appellant was particularly interested in this method of calculation. However, while this directive remained outstanding, considerable changes occurred in Alberta’s electrical utilities industry and the AESO requested that the Board waive its directive on the grounds that the directive was no longer relevant. The Board granted this request. The Appellant subsequently submitted a complaint to the Board, arguing that the AESO ought to abide by the directive. The Board issued written reasons denying the Appellant’s complaint. In doing so, it relied on s. 25(4) of the Electric Utilities Act, R.S.A. 2003, c.E-5.1 which allows the Board to decline to hold a hearing into a complaint if it considers that the complaint is “frivolous, vexatious, trivial or otherwise does not warrant investigation or a hearing.”

The Appellant sought leave to appeal the Board’s decision on numerous grounds. The Court of Appeal held that leave to appeal would not be granted unless the Appellant raised a question of law or jurisdiction on a “serious, arguable point.” Subsumed within the general test are four elements: (1) whether the point on appeal is of significance to the practice; (2) whether the point is of significance to the action itself; (3) whether the appeal is prima facie meritorious; and (4) whether the appeal will not unduly hinder the progress of the action.

Applying this test, the Court granted leave to appeal on one of the issues raised by the Appellant, namely whether the Board erred in the test it adopted under s. 25(4) to summarily deny the Appellant a hearing of its complaint, particularly where the Board considered that the complaint was not frivolous, vexatious or trivial. The Court also granted leave to appeal the issue of whether the Board properly considered ss. 19(1)(a) and 19(2)(d) of the Transmission Regulation, because this issue was related to the test adopted under s. 25(4) of the Act.

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