Canada: Court Affirms Deferring Jurisdiction To Legislatively Established Specialized Tribunals

Introduction

On February 9, 2016 Madam Justice Kim Nixon of the Alberta Court of Queen's Bench issued a significant administrative law decision in the case of Independent Power Producers' Society of Alberta ("IPPSA") v. Independent System Operator, operating as Alberta Electric System Operator (the "ISO"), Alberta Court of Queen's Bench Action 1501-02977, declining to hear a judicial review and instead deferring the matter to an administrative law tribunal, the Alberta Utilities Commission (the "AUC"). Nixon, J. held that the AUC is a specialized expert tribunal established by the legislature to consider and decide issues pertaining to Alberta's electricity regime and that not only should deference be accorded to its decisions, but also the right for it, not the Court, to make those decisions in the first instance.

Background

In January 2015, the ISO issued a notice (the "Notice") to the public announcing modifications to an hourly report it issues, known as the Historical Trading Report (the "HTR"), which contains information about offers made by power producers to sell electricity into Alberta's power pool during the preceding hour. Alberta's statutory market "watchdog", the Market Surveillance Administrator ("MSA") supported the ISO's proposed modifications since it had long been concerned that the HTR could under certain conditions contribute to higher pool prices by revealing sensitive market information.

IPPSA, an association of power producers, commenced a judicial review application (the "Judicial Review") characterizing the Notice as a reviewable "decision" by the ISO. The Judicial Review sought to reverse the Notice and ban the proposed modifications to the HTR on the basis that the legislation (Section 6 of the Fair Efficient and Open Competition Regulation, Alta Reg 159/2009 (the "FEOC Regulation")) required the ISO to publish the HTR in its current format and forbade any modifications. Shortly after receiving the Judicial Review application, the ISO announced that it would postpone the modifications pending the outcome of the Judicial Review.

The Judicial Review was then adjourned sine die (leaving the HTR indefinitely intact), after which the MSA brought an application for hearing to the AUC under Section 51 of the Alberta Utilities Commission Act, SA 2007, c A-37.2 (the "AUCA") asking the AUC to eliminate or modify the HTR. The AUC commenced its hearing process, which involves notifying interested parties and establishing a process schedule. The IPPSA then revived the Judicial Review and arranged for it to be heard on February 9, 2016, though it was aware that the AUC would schedule a hearing into the HTR.

The IPPSA's view was that Section 6 of the FEOC Regulation could be interpreted by the Court (in IPPSA's favour) without need for background information, context or industry expertise. It also argued that the Judicial Review would render the AUC process moot since there would be a ruling that, in law, the HTR could not be modified.

The AUC scheduled a Hearing for April 11-15, 2016, declining a request by IPPSA to refrain from doing so pending the outcome of the Judicial Review. The MSA applied to the Court to intervene in the Judicial Review and have it dismissed, stayed or set aside.

Decision

The Court found that the MSA had an interest in the matter since the outcome sought by IPPSA would affect the market and that the MSA had important information that should be considered by the Court. Nixon J. therefore granted the MSA intervenor status.

Next, the Court considered whether it should even hear the Judicial Review in light of the fact that the AUC had scheduled a fulsome hearing to consider the issues and was, after all, the body designated by the legislature to regulate the electricity market.

Nixon J. held that Judicial Review was a discretionary remedy, and would not ordinarily be heard if the aggrieved party had adequate alternative remedies. Here, Section 51 of the AUCA and Section 26 of the Electric Utilities Act, SA 2003, c E-5.1 provided a procedure for complaints about ISO conduct to be brought before the Commission. Nixon J. therefore declined to hear the Judicial Review, deferring the matter to the AUC where there would be a full complement of parties, a tribunal and an applicant (the MSA) with expertise and important statutory mandates, and a slate of evidence and background information that the Court lacked in the Judicial Review.

In making that decision, Nixon J. acknowledged that the AUC is a specialized body with a high level of expertise with respect to the electricity market, and cited the Court of Appeal's decision in Re ATCO Pipelines, 2014 ABCA 28 to that effect:

As a specialized and expert tribunal charged with the administration of a comprehensive set of legislation regulating all aspects of the energy industry in the Province of Alberta, decisions of the Commission are entitled to a high degree of curial deference. Decisions requiring the interpretation of its governing statutes and regulations, and the application of its experience and expertise, will be measured on a standard of reasonableness: Coalition of Citizens Impacted by the Caroline Shell Plant v. Alberta (Energy & Utilities Board) (1996), 187 A.R. 205 (Alta. C.A.) at para 14.1

The Court recognized that, if deference is owed to the AUC with respect to the decision it makes, it should also be accorded deference to make the decision in the first instance, citing Ontario Hydro v Kelly [1998] OJ No 1877 for the following proposition:

It seems to me that, as a matter of logic, if deference is to be paid to the actual decision of a tribunal, then deference should also be paid to the jurisdiction of the tribunal to make that decision. If the factors of specialization, policy making role, and limiting overlapping jurisdiction protect the actual decision of a tribunal, those same factors, if present in a particular fact situation, should also protect the integrity of the jurisdiction of the tribunal to make the decision.2

The Court rejected IPPSA's submissions that the interpretation of Section 6 of the FEOC Regulation was "simple" and "straightforward" and required no policy considerations or factual context. Nixon J. held that the FEOC Regulation is part of an overall comprehensive scheme governing the electricity market, and it must be interpreted within that context, quoting the oft-cited principle of statutory interpretation from Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 SCR 27: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."3

Nixon J. ultimately held that the AUC was the appropriate body to consider the issues noting that the AUC is empowered to make determinations of law and fact, the issues in this case required an interpretation of the AUC's home statute, and the interpretation of Section 6 of the FEOC Regulation involved policy considerations that the AUC was well-versed in. On this, she cited British Columbia (Securities Commission) v. McLean, 2013 SCC 67 and Crosby v Rothesay, 2015 NBQB 133:

...the modern approach to judicial review recognizes that courts 'may not be as well qualified as a given agency to provide interpretations of that agency's constitutive statute that make sense given the broad policy context within which that agency must work'...4

...there is much wisdom in allowing a specialized tribunal to assess the facts presented to it knowing that it will be applying its expertise not only in respect of the applicable law, but also in the context of the public policy rationale that underlies such regulatory schemes...5

Nixon J. awarded the MSA costs of the application even though it was an intervenor on the basis that its intervention was extremely helpful, foreseeable and reasonable in the circumstances.

This case affirms that even though courts may have jurisdiction to hear matters that are also within the ambit of specialized tribunals, they should defer that jurisdiction to the dispute resolution regime established by the legislature.

The MSA's legal team was comprised of John Blair, Q.C. and Laura M. Poppel of BLG.

Footnotes

1. Re ATCO Pipelines, 2014 ABCA 28 at para 26.

2. Ontario Hydro v Kelly [1998] OJ No 1877 (ONCJ) at para 34.

3. Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 SCR 27 at para 21.

4. British Columbia (Securities Commission) v. McLean, 2013 SCC 67 at para 31.

5. Crosby v Rothesay, 2015 NBQB 133 at para 23.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions