Environmental, Indigenous and Natural Resources Blog

On June 15, 2021, a new amendment to Rule 016 governing review of Alberta Utilities Commission (‘AUC’ or the ‘Commission’) decisions will take effect. The rationale for the change is described in AUC Bulletin 2021-11 (dated May 6, 2021). Rule 016 sets out the criteria and process through which the Commission’s decisions may be reviewed or varied on application by a person who has been directly and adversely affected by a decision, or by the Commission on its own motion.

The intended effect of the amendments is to increase efficiency and reduce the regulatory burden, which is expected to result in both time and cost savings for the AUC and its stakeholders.^[1] These amendments are informed by the Report of the AUC Procedures and Processes Review Committee, and form part of the Commission’s efforts to adhere to the directions provided by the Government of Alberta in the Red Tape Reduction Act. Specifically, the amendments:

• Remove errors of law or jurisdiction from the scope of the Commission’s review process;
• Reduce the time for filing review and variance applications from 60 to 30 days after the initial decision is issued; and
• Introduce page limits for applications.

While the goals and intentions of the amendment will certainly be welcomed by some AUC stakeholders, the amendments themselves may pose some challenges. It remains to be seen whether the amendments will actually result in greater efficiency, certainty and finality of decisions, or whether they will increase the level of bifurcated “fact” and changed circumstance review applications before the AUC as well as increased “companion” applications to the Court of Appeal on questions of law and jurisdiction.

By restricting AUC reviews to questions of fact and questions of mixed fact and law, where the question of law is not readily extricable, the amendments appear to preserve and respect the deference shown to the Commission’s fact-finding jurisdiction and expertise on the regulation of utilities.

However, in order to preserve their rights, applicants seeking to review a decision based on fact or changed circumstances, and a question of law or jurisdiction, will be now be required to file both a review application with the Commission and seek permission to appeal within 30 days of the challenged decision. Under old Rule 016 applicants had 60 days to file an application for review that specifically allowed for the grounds of an error in law or jurisdiction. Finally, the newly imposed page limit requiring review applications to be 15 pages double-spaced may create the unnecessary and inevitable step of seeking permission to exceed the limit for applications concerning complex matters.

Time will tell whether the amendments will achieve their goal of efficiency or otherwise increase the complexity and time required to challenge AUC decisions by increasing the number of parties seeking to appeal AUC decisions to the court of appeal, as well as the nature and character of the issues for which appellate review is sought.

_{[1] See Bulletin 2021-08, at 1.}