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ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission).

País/Territorio
Canadá
Tipo de la corte
Nacional - corte superior
Fecha
Jun 30, 2009
Fuente
UNEP, InforMEA
Nombre del tribunal
Court of Appeal of Alberta
Sede de la corte
Calgary
Juez
Côté, McFadyen and Rowbotham.
Número de referencia
2009 ABCA 246
Idioma
Inglés
Materia
Energía
Palabra clave
Conservación de energía/producción de energía
Resumen
In 2007 ATCO filed a general rate application with the then Alberta Energy and Utilities Board (”EUB”) for approval of rates for the 2008 and 2009 test years. It advised the EUB that it was excluding the “Salt Cavern” assets from its applied-for rate base. Its justification for doing so was that while those assets had historically been included, they were no longer being used for transmission service, and would not be used in the foreseeable future. The Alberta Utilities Commission (AUC) advised ATCO that ATCO could not exclude the assets from the application absent an application by ATCO (and AUC approval) under s. 26 of the Gas Utilities Act, R.S.A. 2000, c. G-5. Section 26 requires a gas utility to obtain permission prior to the sale, lease, mortgage, disposal or encumbrance of property. ATCO argued that since it was not selling the property or otherwise disposing of it, but was simply moving it out of rate base, approval under s. 26 should not be required. The AUC took the position that a unilateral withdrawal from rate base was equivalent to a disposition. ATCO appealed that decision to the Court of Appeal. In the meantime, ATCO and its customers entered into a settlement of the 2008 and 2009 rates with customers which settlement excluded the Salt Cavern assets. That settlement was approved by the AUC The Court noted the general authority of the AUC with respect to the determination of the utility’s rate base. It rejected the idea that there was any “conclusive unilateral power by the utility company to define its rate base” (and reaffirmed that the basic test for the inclusion or exclusion of assets from rate base - that they be used or required to be used in utility service - remained the same. It also concluded that this regulatory power is not confined to “ruling on adding new items to the rate base” but also includes assets to be excluded from rate base. It concluded, however, that it is still the Commission’s authority to determine “what assets (still) are relevant utility investment on which the rates should give the company a return”. It held that s. 26 needed to be interpreted “in context and in its grammatical and ordinary sense harmoniously with the scheme and object of the Act”. It held that the meaning of the words used in s. 26(2)(d) all connoted “giving up ownership” rather than simply ceasing to become useful. It suggested that “the standard of review on appeal is ultimately up to the Legislature and is not constitutional” (para. 64). In the result, and noting the standard of review used by the SCC in its 2006 ATCO decision, the Court concluded that the correct standard of review was correctness
Texto completo
COU-156855.pdf
Página web
www.albertacourts.ab.ca