The City of Calgary’s application for leave to appeal three decisions of the Alberta Energy and Utilities Board was allowed where the Court found that special circumstances existed that justified extending the time for filing the appeals and it was arguable that the Board did not take certain evidence into account

Administrative law – Decisions of administrative tribunals – Energy and Utilities Board – Appeals – Leave to appeal – Fee increases – Jurisdiction – Judicial review – Evidence – Limitations

Calgary (City) v. Alberta (Energy and Utilities Board), [2007] A.J. No. 880, Alberta Court of Appeal, August 3, 2007, C. Conrad J.A.

The City of Calgary applied for leave to appeal three decisions of the Alberta Energy and Utilities Board. Calgary sought leave on the ground that the Board erred in law or jurisdiction by failing to consider the evidence that ATCO Gas would receive an excessive rate of return on the gas and storage component of the Carbon necessary working capital by applying a mid-year convention, as opposed to a monthly average calculation. Calgary also contended that the Board erred in law or jurisdiction by applying the mid-year convention, as opposed to the monthly average calculation, to the cost of gas and storage at Carbon in the calculation of necessary working capital. ATCO applied to strike Calgary’s application with respect to the decisions because leave to appeal was not sought within the statutory time limit applicable to each of those decisions.

The Court allowed Calgary’s application for leave to appeal finding that special circumstances existed that justified extending the time limit in both cases. The Court found that it was arguable that the Board did not take certain evidence into account and that the failure to take relevant considerations into account could amount to a jurisdictional error. The Court further held that it was arguable that the Board erred by finding that its decision that the necessary working capital component for gas and storage appeared to be excessive for 2005 when the mid-year convention was applied and then doing nothing to confirm or reject whether that excess was, in fact, offset by other components of the necessary working capital. The Court found that it was arguable that the Board was obliged to do more than speculate about the effect of applying the monthly average formula once it was aware that the application of the mid-year convention created a potential windfall to ATCO.

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