Mueller v. Montana Alberta Tie Line, 2011 ABQB 738

Court of Queen ’ s Bench of Alberta Citation: Mueller v. Montana Alberta Tie Line, 2011 ABQB 738 Date: 20111129 Docket: 1006 01013 Registry: Lethbridge Between: Daniel Rome Mueller, Rolling Prairie Farms Ltd., Ted W.

Swanson, Bradley Moser, Darryl Moser, George Matthies O/A Jesco Farms Inc., James Wiskerke, Hubregt Wiskerke, Prairie Gem Farm Ltd., Dave Van Pelt Farms Inc., Brian Melford Friedrick, Roy Tetzlaff, Anne Tetzlaff, Ross Dewane Orcutt, John Lutz, Brenda Lutz, Daryl Lynn Soice O/A 968437 Alberta Ltd., Leslie Obaggy, Sharon Obaggy, Lois Clara Ketchey, Lawrence Mazutinec, Sheila Mazutinec, Joseph Baczuk, Gordon Clayton, Kathy Clayton, Frank Orthalek, Leslie Wall O/A KCL Cattle Company Ltd., Doran Templeton, Byron Templeton, Tony Cudrak, Bev Cudrak, William Ernst Lindeman, Willem Kampert, Lucina Kampert, Barry Snow, Barbara Snow, Boston Farms Ltd., Fornier Farms Ltd.

C/O Tony Bos, Clayton William Soice, Leslie Hoytos, Allen Klassen, Jodi Klassen Applicants - and - Montana Alberta Tie Ltd. and The Surface Rights Board Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________ I. Introduction [ 1 ] The Applicants seek Judicial Review of several decisions of the Surface Rights Board, which grant Right of Entry Orders onto the Applicants’ farmland.

The Applicants consist of several landowners in Southern Alberta effected by a powerline constructed by Montana Alberta Tie Ltd. (MATL) running from the north of Lethbridge to the Canada/United States border.

[ 2 ] In dealing with the affected landowners, MATL had to either reach an agreement with them to access their lands, or failing that, apply under the Surface Rights Act , RSA 2000, c S-24, pursuant to

section 15, for a Right of Entry Order. The applications included the requisite final Written Offer for a Right of Way Agreement, Plan of Survey, Temporary Working Space and Access Agreement, and a proposed compensation structure.

The Surface Rights Board, pursuant to its legislation, could grant a Right of Entry Order “not less than 14 days after the date of service by or on behalf of the Board” of the Notice and Application. [ 3 ] After receipt of the Notice and Application, virtually every landowner filed an objection through an agent, or expressed their objection through legal counsel, and asked for an oral hearing where they could call further evidence. Counsel for MATL provided a written reply to the landowners’ objections. In some cases the landowners’ request for further time to provide submissions was granted.

In others the request was granted, but the amount of time requested was not. In many cases questions regarding Surface Rights Board procedure were asked by the landowners and answered by counsel for the Surface Rights Board. [ 4 ] In the present case there are no less than 25 landowners and up to 40 Right of Entry Orders before the Court, and from a review of the Surface Rights Board file for each order, it is clear that MATL was a “well oiled machine” in its Surface Rights Board practice.

The landowners in question had retained one law firm and it was obvious that the applications naming the landowners as Respondents came fast and furious starting in the spring of 2010. [ 5 ] Without clearly expressing its decision about an oral hearing, the Surface Rights Board did not hold any, and instead issued Decisions and Right of Entry Orders after reviewing written submissions. Orders were granted in favour of MATL in every application. The first decision was issued in late June, and decisions continued to be issued until the end of November, 2010.

Generally, from the time of application to the issuance of the Order three months elapsed. [ 6 ] The landowners now complain that the Surface Rights Board issued decisions that failed to meet the correctness standard. The landowners also allege that the Surface Rights Board failed to provide a fair hearing and thereby breached the duty of procedural fairness by: 1. Not holding an oral hearing in each case; 2. Setting unreasonable deadlines for the landowners, and not communicating to the landowners what evidence could be presented, and when it could be presented; 3. Failing to follow its own procedural rules; 4.

Failing to consider and address the evidence before it; and 5. Failing to attach appropriate conditions on Right of Entry Orders. II. Preliminary Issues Raised by MATL [ 7 ] Counsel for MATL raises some preliminary issues in this Judicial Review, which include several defects in the Applicant landowners’ Originating Application: 1. Applicant landowners Doran Templeton and Byron Templeton did not file a formal Objection with the Surface Rights Board relating to Decision #2010/0606. Nor did Daniel Mueller file a formal Objection with the Surface Rights Board leading up to Decision #2010/0739. 2.

Several Surface Rights Board decisions that are referenced in the Originating Application do not have corresponding parties in the group of Applicants. Specifically: (

a) Surface Rights Board Decision #2010/0450 - Leslie Hoytos is not an Applicant. (

b) Surface Rights Board Decision #2010/0585 - Allen Klassen and Jodi Klassen are not Applicants. (

c) Surface Rights Board Decision #2010/0614 - Clarence Halma and Rita Halma are not Applicants.

(

d) Surface Rights Board Decision #2010/0788 - Robert Chiste and Richard Chiste are not Applicants, however, Boston Farms Ltd., an occupant of the land, is an Applicant. 3. Some of the Applicants do not have a corresponding Surface Rights Board Decision referenced in the Originating Application. These include Joseph Baczuk, Gordon Clayton and Kathy Clayton, Frank Orthalek, and Barry Snow and Barbara Snow. 4.

Finally, the Applicants Leslie Obaggy and Sharon Obaggy, and William Lindeman and LaRae Lindeman have all entered Right of Way and Temporary Work Space Agreements, thereby terminating Right of Entry Orders issued under Surface Rights Board Decision #2010/0552 and Surface Rights Board Decision #2010/0573. [ 8 ] On the day of opening argument, counsel for the Applicant landowners filed an Amended Originating Application to add three new names to the group of landowners which had inadvertently been left off the list, however, the actual Surface Rights Board Decisions affecting these landowners had been referenced in the Originating Application. [ 9 ] The added parties are Leslie Hoytos, Allen Klassen and Jodi Klassen.

This satisfies the deficiency mentioned by the Respondents in paragraph 7, point 2, (

a) and (b). The fact that the amendment is past the limitation period causes no prejudice to MATL. With respect to the Respondents’ Objection outlined in paragraph 7, point 2 (c), I am advised by counsel for the Applicants that their names are to be removed from the style of cause as their application is withdrawn.

With respect to paragraph 7, point 2(d), counsel for the Applicants argue that Robert Chiste and Richard Chiste are shareholders of Boston Farms and therefore the appropriate party is before the Court in terms of Surface Rights Board Decision #2010/0788. [ 10 ] Those individuals mentioned in paragraph 7, point 3 who do not have corresponding Surface Rights Board Decisions are to be left in abeyance pending a decision on the other named landowners.

I accept counsel for the Applicants’ position on this procedural point. [ 11 ] The individuals referenced in paragraph 7, point 4 appear to have resolved their issues with the Respondent MATL by way of Agreement, and I have heard nothing contrary from counsel for the Applicants.

Accordingly, based on the submission of counsel for MATL and no real opposition from the Applicant landowners’ counsel, I decline to deal with Surface Rights Board Decisions referenced in paragraph 7, point 4. [ 12 ] In my view, the fact that individuals referred to in paragraph 7, point 1 did not formally object to the Surface Rights Board leading up to its decisions does not remove their right to bring an application for Judicial Review.

Accordingly the decisions referring to their lands are subject to this Judicial Review and Surface Rights Board Decisions #2010/0606 and #2010/0739 will be part of this review. [ 13 ] In conclusion, the actual Orders that are subject to this Judicial Review are as follows: SRB Decision No. Landowner (Occupant) ROE Order No. Date 1. 2010/0450 Ted Swanson Brian Friedrick Leslie Hoytos 0732/2010 0733/2010 0734/2010 June 22, 2010 2. 2010/0547 Ross Orcutt Ross Orcutt 0896/2010 0897/2010 August 18, 2010

3. 2010/0549 John & Brenda Lutz John & Brenda Lutz 0904/2010 0905/2010 August 19, 2010 4. 2010/0572 Lawrence & Sheila Mazutinec 0929/2010 August 26, 2010 5. 2010/0585 Allen & Jodi Klassen 0934/2010 August 30, 2010 6. 2010/0587 Jesco Farms Inc. 0936/2010 August 31, 2010 7. 2010/0589 Prairie Gem Farm Ltd. 0938/2010 August 31, 2010 8. 2010/0591 Rolling Prairie Farms Ltd. Rolling Prairie Farms Ltd.

Rolling Prairie Farms Ltd. 0942/2010 0943/2010 0944/2010 September 1, 2010 9. 2010/0593 Hubregt, Hendrika & James Wiskerke 0945/2010 September 1, 2010 10. 2010/0606 Doran & Byron Templeton 0957/2010 September 8, 2010 11. 2010/0613 Doran & Byron Templeton 0964/2010 September 13, 2010 12. 2010/0616 Brad Moser Brad Moser Darryl & Sue-Anne Moser Brad Moser 0970/2010 0971/2010 0972/2010 0973/2010 September 15, 2010 13. 2010/0663 Dave Van Pelt Farms Inc. Dave Van Pelt Farms Inc.

Dave Van Pelt Farms Inc. 1010/2010 1011/2010 1012/2010 October 4, 2010 14. 2010/0734 John & Brenda Lutz John & Brenda Lutz John & Brenda Lutz 1102/2010 1121/2010 1122/2010 November 1, 2010 15. 2010/0735 Daryl Soice O/A 968437 Alberta Ltd. 1123/2010 November 1, 2010 16. 2010/0736 Clayton William Soice O/A 968437 Alberta Ltd. 968437 Alberta Ltd. 1124/2010 1125/2010 November 1, 2010 17. 2010/0739 Daniel Mueller 1127/2010 November 3, 2010 18. 2010/0740 Anne Tetzlaff & Ray Tetzlaff 1130/2010 November 4, 2010

19. 2010/0741 Lois Ketchey 1129/2010 November 4, 2010 20. 2010/0742 Daniel Mueller 1170/2010 November 5, 2010 21. 2010/0743 Fournier Farms Ltd. 1171/2010 November 8, 2010 22. 2010/0744 Boston Farms Ltd. 1178/2010 November 8, 2010 23. 2010/0775 Willem & Lucina Kampert KCL Cattle Company Ltd. 0005/2011 0006/2011 November 24, 2010 24. 2010/0785 Anthony & Beverly Cudrak 1222/2010 November 26, 2010 25. 2010/0788 Robert & Richard Chiste 1228/2010 November 30, 2010 III.

Role of the Surface Rights Board in the Regulatory Approval for the International Power Line MATL Seeks to Construct [ 14 ] In order to address the matters raised by the landowners, it is first necessary to determine the role of the Surface Rights Board in the larger regulatory scheme that has authorized the construction of this international power line (IPL). [ 15 ] MATL requires access to these lands in order to build its IPL from its substation northeast of Lethbridge, Alberta, to the Canada/United States border.

MATL has already received a permit for the IPL from the National Energy Board, pursuant to federal legislation, and has also received a licence to construct and operate the IPL under the provincial Hydro and Electric Energy Act , RSA 2000, c H-16 (HEEA). The decision-making body for the IPL under the HEEA was the Energy Utilities Board (EUB) and is now the Alberta Utilities Commission (AUC).

Both the federal permit process and the provincial licencing process were subject to judicial review and subsequent appeals by many of the same Applicants. [ 16 ] It could be said that the Surface Rights Board process for right of entry is the final leg of the stool for MATL to get onto the lands in order to construct its IPL. With the IPL approved in principle by the National Energy Board and the EUB, the Surface Rights Board now becomes involved to govern the relationship between MATL and the individuals who own the land the IPL will traverse. [ 17 ]

Section 15 of the Surface Rights Act sets out the process MATL is obligated to use in applying for and obtaining a Right of Entry Order. It states the following: 15(1) When the surface of any land required by an operator for any of the purposes mentioned in this Act is owned by the Crown or any other person, and the operator cannot acquire the consent of the owner and the occupant as required by

section 12, the operator may apply to the Board for a right of entry order in respect of the surface of the land that may be necessary for the performance of the operator’s operations.

(2) An application for a right of entry order must be in the prescribed form and be accompanied with (

a) a copy of the most recent written offer made by the operator to the respondent and evidence satisfactory to the Board that the offer has been refused, and (

b) any other information required by the regulations.

(3) Where the Board receives an application and the operations in respect of which the application is made require a licence, permit or other approval from the Alberta Utilities Commission or the Energy Resources Conservation Board, the Surface Rights Board may request the Alberta Utilities Commission or the Energy Resources Conservation Board to provide it with a copy of the licence, permit or other approval together with any other information in the possession of the Alberta Utilities Commission or the Energy Resources Conservation Board that is relevant to the right of entry, and the Alberta Utilities Commission or the Energy Resources Conservation Board, as the case may be, shall forthwith comply with the request.

(4) On receipt of an application under subsection (1), the Surface Rights Board may, if it considers it appropriate to do so, make a right of entry order (

a) on the operator filing with the Board a letter of consent in the prescribed form signed by the respondents, or (

b) not less than 14 days after the date of service by or on behalf of the Board on the respondents of (

i) a notice in the prescribed form, and (ii) a copy of the application.

(5) When the Board receives an objection after the serving of the notice referred to in subsection (4)(b)(i), the Board may hold a hearing with respect to the application and objection at a time and place that the Board considers advisable.

(6) Where the Board makes a right of entry order under this section, it (

a) shall describe the portion of the surface of the land that is necessary for the performance of the operator’s operations, and (

b) may make the order subject to any conditions it considers appropriate, but where the activity the operator proposes to engage in is the subject of a licence, permit or other approval granted by the Alberta Utilities Commission or the Energy Resources Conservation Board, and a copy of the licence, permit or other approval has been provided to the Surface Rights Board pursuant to subsection (3), the Surface Rights Board shall ensure that the right of entry order is not inconsistent with the licence, permit or other approval. [ 18 ] The landowners argue that the Surface Rights Board and the AUC are two regulatory bodies with overlapping jurisdiction.

Thus, even if an issue has been raised, argued and decided upon by the AUC when considering approval for an IPL in principle, the Surface Rights Board may still consider the same issue when determining whether it is proper to grant a Right of Entry Order, or conditions for that Order, as against an individual property owner. [ 19 ] MATL disagrees, stating that while it may be the Surface Rights Board that issues the Right of Entry Order, the decision of whether the expropriation is justified is made by the AUC. [ 20 ] Before this Court, there is no dispute that MATL’s desire to construct the IPL is an activity subject to a licence granted by the AUC.

In such a circumstance, subsection 15(6) of the Surface Rights Act clearly states that the Surface Rights Board is to ensure that any Right of Entry Order granted is not inconsistent with the licence. [ 21 ] As part of the argument that the Boards have overlapping jurisdiction, counsel for the landowners maintains that s.15(6) exists

to balance the rights of landowners and operators. Reliance is placed upon Encana Corporation v. Campbell 2008 ABQB 234, 2008CarswellAlta 482, where the Court stated: [16] An application for a right of entry order under s.15(6) arises where the owner will not consent to the operator entering onto theowner’s land. The interests of landowner and operator on those lands are in conflict. On a plain reading of s. 15(6), the

section isdesigned to ensure the SRB balances the landowner’s concerns against the operator’s need to enter onto those lands to carry out itsspecific operations. ... [Emphasis added] [22] It is imperative, however that paragraph 16 of the Encana decision be read in its entirety. The remainder of the paragraphstates: .... As Brian O’Ferrall stated, every time the SRB makes a decision it is arbitrating between industry and the land owner.

Where theoperator requires a license, permit or approval, the SRB can request a copy of that license, permit or approval together with any otherinformation relevant to the right of entry application. If the SRB grants a right of entry order, it then has a statutory discretion to imposeappropriate conditions on that right of entry so long as those conditions are not inconsistent with the license, permit or otherauthorization. The Alberta Court of Appeal described the SRB’s role as being ancillary and in aid of the oil well activities authorized bythe ERCB.

It noted s. 15(6) of the Surface Rights Act prioritizes the existence of the well license such that the SRB could not exercise itsjurisdiction to deny entry to the well site and in doing so frustrate the ERCB’s jurisdiction to grant that license (see Windrift Ranches Ltd.v. Alberta (Alberta Surface Rights Board), 1986 ABCA 158 , [1986] A.J. No. 581). That is not the case here.

In this case, theSRB has granted the Right of Entry Order but in doing so, has imposed certain conditions as it has the jurisdiction to do so long as theyare not inconsistent with EnCana’s License. [Emphasis added] [23] In Windrift Ranches Ltd. v. Alberta (Surface Rights Board), 1986 ABCA 158 , 57 Alta. L.R. (2d) 36, the Court ofAppeal stated: 18 The jurisdiction of the E.R.C.B. included the licensing of the oil well. The well was licensed and had been for many years.

TheAlberta Surface Rights Board refused, correctly in my view, to permit the appellant to make a collateral attack upon the licensing of thewell during the right of entry proceedings. Any other course would permit the appellant to frustrate the jurisdiction of the E.R.C.B. byputting in issue licensing of oil wells during right of entry proceedings. Right of entry proceedings before the Alberta Surface RightsBoard are ancillary and in aid of the oil well activities authorized by the E.R.C.B.

Accordingly the appellant's appeal against the right ofentry granted by the Alberta Surface Rights Board is dismissed. [24] Accordingly, the role of the Surface Rights Board is not so much as a judicial decision making tribunal where a dispute isdecided between the parties adverse in interest. Rather, the role of the Surface Rights Board in issuing Right of Entry Orders is toarbitrate concerns and balance the rights of landowners and industry as a followup to decisions granted by the AUC.

A plain reading ofSection 15(6) of the Surface Rights Act lends itself to the proposition that the Surface Rights Board’s task is to balance the landowners’concerns against the operators’ need to enter the land to fulfill its duties as allowed by the permit or license granted by the AUC: EncanaCorporation v. Campbell 2008 ABQB 234, 2008 CarswellAlta 482. [25] It is clear, based on the legislation and on authoritative discussion of the Surface Rights Act, that the Surface Rights Board is“ancillary and in aid of” activities authorized under the AUC. [26] Support is also found for this

interpretation in Brian K. O’Ferrall, “The Energy Resources Conservation Board, the SurfaceRights Board and the Relationship Between the Two” (Paper delivered at the Mid-Winter Meeting of the Alberta Branch of the CanadianBar Association, 1987), [unpublished]. Now a Justice of the Court of Appeal, Mr. O’Ferrall articulated the role of the Surface RightsBoard as it relates to Right of Entry Orders: The most important thing to be aware of in surface rights is that notwithstanding that the right of entry orders are obtained from theSurface Rights Board, it is the Energy Resources Conservation Board which really grants the right to enter...

...In Surface rights, it is the E.R.C.B. which determines whether the entry is fair, sound and reasonably necessary ... In discharging its jurisdiction to grant right of entry orders the Board is essentially a “rubber stamp ” . That is, once the E.R.C.B. has issued a permit for the particular facility, the Surface Rights Board (assuming the documentation is in order) has no choice but to issue a right of entry order so long as the permit possessed by the company authorizes it to seek right of entry onto the particular lands.

The Board’s other jurisdiction, that of determining compensation, is its most important jurisdiction. The Board essentially is a compensation tribunal ... [Emphasis added.] [ 27 ] It is within this context, and in particular, within the limitations placed upon the Surface Rights Board by the AUC licence already granted and the AUC decisions already made, that I must consider the arguments raised by the Applicants. IV. Issues [ 28 ] The following issues arise on this Judicial Review: 1. Did the Surface Rights Board satisfy the requirements of procedural fairness? 2.

Do the Surface Rights Board decisions on the conditions to be attached to the Right of Entry Orders satisfy the appropriate standard of review? V. Analysis 1. Did the Surface Rights Board satisfy the requirements of procedural fairness? [ 29 ] From the time the first applications were filed, counsel for the landowners requested that oral hearings be held.

The requests were often based on the following rationale: Each landowners situation is unique and the best evidence for the Board to make these very important decisions will come from a site visit from the Board and an oral hearing where the Board can hear oral evidence from the individual landowners. [ 30 ] In addition, counsel asked that if the Surface Rights Board did not hold oral hearings, at the very least a dispute resolution conference should be held to create a

schedule for submissions in an orderly manner that would accommodate the landowners, keeping in mind their seasonal obligations. [ 31 ] The Applicants argue that by setting short time lines and not advising the Applicants how to present their evidence, the Surface Rights Board acted unreasonably.

The Applicants also argue that the Surface Rights Board failed to hold Dispute Resolution Conferences or pre-hearings to explain the process and thereby acted unfairly, such that the Surface Rights Board decisions should be quashed. [ 32 ] The landowners complain that their requests for adjournments were either ignored or denied and that is further proof that the Surface Rights Board acted unfairly. [ 33 ] Given the context of the Surface Rights Board and the complaints of the landowners concerning lack of an oral hearing,

timing, and failure to look at all the evidence, an analysis of the Surface Rights Board’s handling of the applications must be examined inlight of the factors set out in Baker v. Canada (Minister of Citizenship & Immigration, (SCC), [1999] 2 SCR 817,which have come to be known as the Baker factors. The end result of this analysis will be an assessment as to whether the Surface RightsBoard process was fair. A.

The Nature of the Decision being made. [34] Given the context of the Surface Rights Board’s role in the process of Right of Entry Orders, it is clear that it resemblesjudicial decision making far less than advocated by the landowners. In its role concerning Right of Entry Orders it is essentially a“rubber stamp”. Following the issuance of a permit or license by the Energy Resources Conservation Board or the AUC within which theparty has authorization to seek entry onto the land, the Surface Rights Board has no alternative but to issue a Right of Entry Order.

It isimportant to keep this role of the Surface Rights Board separate from that of ordering compensation, where the standard of review anddeference may in fact be different. [35] In this process the Surface Rights Board looks less like a tribunal that resembles judicial decision making and thereby requiresless of a standard requiring a high level of participatory rights.

Thus, while the process followed by the Surface Rights Board did notinclude participatory rights like those under a strict judicial model, under the doctrine of duty of fairness, as articulated by the first factorin Baker, it was not required. [36] The landowners argue that a decision such as a Right of Entry Order deprives one party of their rights.

While this may bepartially correct, the Surface Rights Board process cannot be looked at in isolation: it is considered ancillary to the AUC and it’s role inthe entire regulatory scheme for IPLs must be examined. [37] Keeping in mind this regulatory context, the Surface Rights Board’s discretion in making a decision can be exercised withoutholding an oral hearing. As asserted in Sara Blake, Administrative Law in Canada, 4th ed (Markham, Ont.: LexisNexis Butterworths,2006) at 23: Tribunals that process a high volume of cases may have screening procedures and production targets.

Efficient processing, by itself, isnot procedurally unfair. There is a public interest in containing administrative costs and in expeditious decision making. [38] Because the Surface Rights Board has the latitude to set its own procedure, holding a non-oral hearing, failing to grantadjournment requests and refusing to address every one of the Applicants’ concerns does not translate into a characterization of itsprocess as being procedurally unfair. B.

The Statutory Scheme. [39] The landowners argue that the Surface Rights Board’s decisions are final and binding, and therefore greater proceduralprotection is required. This assertion is not entirely accurate. The decision of the Surface Rights Board can be looked at again through arehearing pursuant to

section 29 of the Surface Rights Act, which is as follows: The Board may (

a) rehear an application before deciding it; (

b) review, rescind, amend or replace a decision or order made by it; (

c) repealed 2009 c31 s13; (

d) notwithstanding anything in this Act, and with or without a hearing, amend a compensation order to show as a respondent aperson who is neither an owner or occupant of the land concerned, and to make compensation payable to that person, when the Board issatisfied that that person is legally entitled to receive the compensation that would otherwise be payable to an owner or occupant.

[40] Some of the Applicant landowners have indeed availed themselves of this right under the legislation. Further, the legislationand the Surface Rights Board practice seem to put a significant emphasis on the compensation process after a Right of Entry Order israther expeditiously provided for. This Court cannot accept the Applicants’ claim that the decisions authorizing Right of Entry Ordersare final. Admittedly, there is not a statutory right of appeal.

However the ability to seek judicial review, the opportunity to ask theSurface Rights Board to rehear a matter, and the legislative mandate for a full hearing at the compensation level are all factors that causethis Court to find, on balance, that the statutory scheme of the Surface Rights Act requires a more relaxed requirement as an essentialduty of fairness. C. Importance of the Decision to the Individuals Affected. [41] The landowners argue that the nature of a Right of Entry Order is equivalent to an expropriation.

Assuming a Right of EntryOrder is the equivalent of an Expropriation Order, the importance of such a decision on the individual landowner is very high. A highlevel of procedural fairness is therefore required in light of the “power imbalance” between the parties and the resulting impact on thelandowners.

According to the third Baker factor the more important the decision is to the individuals effected, “the more stringent theprocedural protections that will be mandated”. [42] However, it is also clear, based on a plain reading of the legislation and on an authoritative discussion of the Surface RightsAct, that the Surface Rights Board is “ancillary and in aid of” activities authorized under the AUC: Windrift Ranches Limited v. Alberta(Surface Rights Board), 1986 ABCA 158 , 57 Alta LR (2d) 36.

Accepting the Applicants’ argument on this aspect of the Bakerfactors would be akin to allowing a collateral attack on the decision of the AUC to license MATL’s IPL. Accordingly, the Surface RightsBoard’s decisions do not fall within the rubric of the landowners’ argument on the third of the Baker factors. [43] The Court is not denying the importance of this issue to the Applicants. Having any transmission line go across one’s propertyis no small matter.

However, having an oral hearing, granting further adjournments and going through each of the landowners’ concernsare not procedural mechanisms that could have assisted the landowners at this administrative level. The expropriation decision was madelong ago and the role of the Surface Rights Board is to help facilitate the decision of the AUC. The Applicants are asking this Court toclose the barn door after the horse has left, an action that even if the Surface Rights Board or this Court had the power to do, would haveno substantial effect. D.

The Legitimate Expectations of the Challenger of the Decision. [44] This aspect of the Baker factors says that if there is a legitimate expectation that a certain procedure will be followed, then theduty of fairness requires that that procedure take place. It is difficult to discern that the landowners had a reasonable expectation of anoral hearing by the Surface Rights Board. The examples cited by the landowners are cases in which there were disputes betweenlandowners and companies who had rights to minerals below the surface.

None of the cases cited referred to an application for theplacement of powerlines, particularly, international powerlines. There is no established practice by the Surface Rights Board and thisseems to be acknowledged by the landowners in their materials when they approached the Surface Rights Board. [45] The Surface Rights Board has latitude to establish its own procedure. There is no objective evidence before this Court thatillustrates a practice of an oral hearing in these types of cases.

One is therefore at a loss to conclude that the Applicants had a legitimateexpectation of an oral hearing and related procedural aspects such as lengthy adjournments and full coverage of all the Applicants’concerns. [46] Accordingly I am not convinced that in approaching the Surface Rights Board the landowners had a legitimate expectation ofan oral hearing and other procedural mechanisms based on past practices. E. The Choice of Procedure made by the Tribunal. [47] The final Baker factor is that of the choice of procedure made by the tribunal.

In examining the choice the Court must look atthe statute empowering the tribunal and also consider the choice of procedure given the tribunal’s expertise.

[ 48 ] The landowners suggest that no deference should be given to the Surface Rights Board due to the fact the Surface Rights Board’s actions are a “clear departure from the common practice of the Surface Rights Board”. [ 49 ] I am not convinced the Surface Rights Board has deviated from past practice. In fact the landowners acknowledge through counsel that oral hearings have not been granted for powerlines in the past.

Given the authority granted to the Surface Rights Board by the legislation, their expertise, and their power to create their own procedure, this fifth Baker factor does not tip in favour of the landowners. While the tribunal could have treated the landowners and their counsel in a more respectful fashion, this Court cannot say that it erred in not holding an oral hearing, nor that the Board’s actions are such that it is not entitled to deference.

Conclusion on Whether the Surface Rights Board met the requirements of procedural fairness [ 50 ] The Surface Rights Board did not hold oral hearings or dispute resolution conferences for any of the Right of Entry applications. After receiving landowner submissions, which typically contained a request for further process, and receiving MATL’s reply, the Surface Rights Board issued written decisions granting MATL a right of entry. [ 51 ] The Surface Rights Board receives its mandate and is guided by the legislation that created it; the Surface Rights Act .

The Surface Rights Act states the following with respect to conferences and hearings: 8(2) The Board may make rules ... (

e) providing for the resolution of matters before the Board through settlement meetings, mediation or other alternative dispute resolution processes, including rules governing the practice and procedure for those processes, ... 8(3.1) In conducting proceedings, the Board is not bound to hold oral hearings but may instead, subject to the principles of natural justice, make decisions on the basis of written submissions. 15(5) When the Board receives an objection after the serving of the notice referred to in subsection (4)(b)(i), the Board may hold a hearing with respect to the application and objection at a time and place that the Board considers advisable. [ 52 ] It is clear that the decision to hold an oral hearing is discretionary.

The word “may” in Section 15(5) of the Surface Rights Act , according to the

Interpretation Act, RSA 2000 c I-8, is not mandatory but “permissive and empowering”. The Legislature has entrusted the Surface Rights Board with the discretion to decide whether to hold oral hearings. Given the application of the Baker factors, the wording of the legislation, and the exercise of discretion by the Surface Rights Board in these cases, I cannot find that the Surface Rights Board breached the requirements of procedural fairness by not holding oral hearings. [ 53 ] An examination of one of the strongest examples of procedural unfairness alleged by the landowners is worth reviewing in detail.

After filing an objection to MATL’s application, and receiving a response from MATL, counsel for the landowners immediately requested from the Surface Rights Board’s counsel an opportunity to provide a fulsome reply to MATL’s response. Almost a week went by for counsel to give the correct file numbers to Surface Rights Board’s counsel. The Surface Rights Board granted the landowners the opportunity to respond to MATL within the next seven days. [ 54 ] This deadline was not agreeable to the landowners’ counsel, and she asked for the deadline to be extended for another six weeks.

This request was strenuously objected to by MATL’s counsel, and the Surface Rights Board’s counsel advised the extension request would be provided to the Board for consideration, along with everything else received, within one week. The landowners’ counsel then questioned whether this meant the landowners might not know whether the extension was granted until after the deadline had passed. Counsel for the Surface Rights Board responded that this was correct.

[ 55 ] The Surface Rights Board specifically addressed this issue in decision of #1010/0572, dated August 26, 2010, and others.

Counsel for the landowners complained at the time that the procedural decision by the Surface Rights Board was “unreasonable, unachievable and [did] a disservice to the landowners who each have individual concerns that need to be addressed.” [ 56 ] The Applicants’ complaint that these “unreasonable” deadlines were procedurally unfair has been addressed through an analysis of the Baker factors , which have led to the conclusion that the Surface Rights Board is not obligated to accommodate every request for an adjournment or delay in its proceedings.

The Surface Rights Board is fully entitled to set its own deadlines and these may be very strict. I am not convinced that the Applicants’ reliance upon the reasoning in PCL Industrial Constructors Inc. v. C.J.A. Local 1985 , 2002 SKQB 173 , 218 Sask R 298, applies to the process used by the Surface Rights Board for Right of Entry applications. [ 57 ] In arguing this point on the basis of PCL Industrial Constructors Inc. v. C.J.A.

Local 1985 , 2002 SKQB 173 , 218 Sask R 298, a more thorough reading of the decision reveals that the facts in that case are very much different from the situation in this judicial review. This Court needs to be more fully cognizant of the Baker factors and a proper Baker analysis, in light of the role of the Surface Rights Board in the overall regulatory scheme, leads to the conclusion that the Applicants cannot succeed in their argument that the Surface Rights Board acted in a procedurally unfair manner.

Accordingly, the Court finds that the Surface Rights Board did satisfy the requirements of procedural fairness. 2 . Do the Surface Right ’s Boards Decisions on the Conditions to be Attached to the Right of Entry Orders Satisfy the Appropriate Standard of Review? A. What is the Appropriate Standard of Review? [ 58 ] The landowners argue that the Surface Rights Board committed an error of jurisdiction when it determined that most of the specific conditions the landowners sought were outside the jurisdiction of the Surface Rights Board, or were matters of compensation.

It is alleged that because this is an error of jurisdiction, the Surface Right Board decisions must be reviewed on the correctness standard. MATL disagrees, arguing they must only meet the reasonableness standard. [ 59 ] Bastarache and LeBell JJ., for the majority in the decision of the Supreme Court of Canada in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 2 SCR 551, acknowledged (at para. 1) that: The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges. [ 60 ] With Dunsmuir , the Supreme Court of Canada has signalled a sea change in this area of the law, the stated objective being to develop a principled framework that is more coherent and workable. [ 61 ] Bastarache and LeBell JJ. describe the reasonableness standard as follows ( Dunsmuir at para. 47 ): Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 62 ] The majority in Dunsmuir was clear that compressing the two reasonableness standards into one is not to be seen as justification for a more intrusive review by courts and does not represent a return to the pre- Southam formalistic, artificial “jurisdiction” test.

[ 63 ] Having defined reasonableness as a deferential standard, the majority in Dunsmuir proceeded to explain that deference is both an attitude of the court and a requirement of the law of judicial review, which imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. Deference implies that the courts will give due consideration to the determinations of decision makers.

As stated by Bastarache and LeBell JJ. (at para. 49), ... deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. [ 64 ] The correctness standard, on the other hand, requires that the court undertake its own analysis of the question rather than show deference to the decision maker’s reasoning process (para. 50).

The correctness standard will apply: - where there is a question of general law that is of central importance to the legal system and is outside the specialized area of expertise of the administrative decision makers (paras. 55 and 60); - to constitutional questions, including those regarding the division of powers between Parliament and the provinces (para. 58); - to true questions of jurisdiction or vires .

Jurisdiction is meant in the narrow sense of whether the statutory grant of power gives the tribunal the authority to decide a particular matter (para.59). [ 65 ] The majority advised that the following are suggestive of the reasonableness standard: - questions of fact, discretion and policy (para. 51); - questions where the legal issues cannot easily be separated from the factual issues (para. 51); - the existence of a privative clause (para. 52); -

interpretation of the tribunal’s own home statute or statutes closely connected to its function and with which the tribunal has particular familiarity (para. 54); - a discrete and special administrative regime in which the decision maker has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context, i.e. labour relations (para. 54). [ 66 ] The question of what conditions, if any, should be included in a Right of Entry Order is a question of law that cannot be easily separated from the factual situation. It also involves the

interpretation of not only the legislation governing the Surface Rights Board, but also the role the Surface Rights Board plays in the larger scheme of the use of private lands for publically-approved purposes, a role which the Surface Rights Board is well versed in playing.

In the context of an IPL, I have already explained that the Surface Rights Board provides support to the AUC, and under the legislation, is prohibited from imposing conditions which are inconsistent with the approvals already given for the IPL. [ 67 ] I therefore conclude the standard of review to be applied is that of reasonableness. [ 68 ] In the decisions now under review, the Surface Rights Board was repeatedly asked to consider issues which had already been adjudicated upon by the Energy Utilities Board or the AUC.

In such instances, the Surface Rights Board did not only point out that the issue was outside the jurisdiction of the Board, but also referenced where the matter had previously been determined. The decisions are rife with examples. A few are reproduced below: Decision No. 2010/734, page 9: 4. The location of the IPL and the type of structures utilized by the Applicant is beyond the jurisdiction of the Board. These issues are within the jurisdiction of the Alberta Utilities Commission which issued Transmission Line Permit and License No. U2010-136 to the Applicant on June 28, 2010.

Pursuant to s.15(6) of the Act the Panel can not alter the route.

5. Implications regarding GPS guidance systems, irrigation pivot and aerial spraying were thoroughly discussed by the EUB in Decision 2008-006 at

Section 6.6.1 “Agricultural & Other Land Use Impacts: Global Positioning Systems (GPS)”,

Section 7.2.3 (Irrigation) and

Section 7.2.4 “Aerial Spraying”. Decision No. 2010/734, page 12: The Panel has examined all conditions requested by the Respondent and omitted sections which were beyond the jurisdiction of the Board as it dealt with the structure, location and route of the IPL or were issues that had been dealt with by the EUB/Alberta Utilities Commission. ... 1. The fibre optic cable can not be removed by the Board as it is included in the Applicant’s IPL permit and license by the Alberta Utilities Commission and NEB.

If it is determined that the Applicant has exceeded the allotted size of cable, then the Applicant will be in contravention of the license which is outside of the jurisdiction of the SRB and would be addressed by the Alberta Utilities Commission and the NEB in the licenses. 2. Any conditions regarding the location of the IPL or the type of structure utilized by the Applicant, including the colour of the structure, is beyond the jurisdiction of the Board. These issues are within the jurisdiction of the Alberta Utilities Commission which granted the permit and license to the Applicant. ... 4.

It is beyond the jurisdiction of the Board to require that the Applicant maintain a membership in the local oil/gas emergency cooperative. Decision No. 2010/591, page 8: 4. The objection raised by the Respondent regarding adverse health effects has already been addressed at great length by the NEB, as well as the EUB. In Decision Report 2008-006, the EUB agreed with the NEB on page 46 that “the evidence does not establish a causal relationship between EMF (Electro Magnetic Fields) and serious human health impacts”.

Decision Report 2008-006 also outlines the Applicant’s duty to continually monitor any potential adverse health effects that may come as a result of the IPL, and “to meet the commitments to measure EMF at any landowner’s residence on request”. Decision No. 2010/0663, page 10:

Section 9.1 of EUB Decision 2008-006 indicates that the Applicant is not concerned about the possibility of corrosion on the IPL. The

section states that the Applicant is “not concerned about water streams containing fertilizers and chemicals contact [sic] its steel poles, and therefore its design doesn’t prevent water streams from coming in contact with the poles.” Decision No. 2010/0743, page 6: 5. Implications regarding GPS guidance systems were thoroughly discussed by the EUB in Decision 2008-006,

Section 6.6.1 “Agricultural & Other Land Use Impacts: Global Positioning Systems (GPS)”. It is unknown if interferences will occur but the Applicant will, upon request of any landowner, undertake a baseline investigation of the GPS signal, determine if the signal has been adversely affected by the IPL, and then mitigate any negative impacts on GPS signal resulting from the IPL.

Decision No. 2010/0616, page 9: 2. It is not within the Board’s jurisdiction to determine whether the conditions as set out by the EUB, now the Alberta Utilities Commission, have been complied with as they were imposed by the EUB. The jurisdiction of the EUB or Alberta Utilities Commission was noted in EUB Decision 2008-074 at page 5. ... 4. Increased liability for landowners as a result of the IPL was addressed by the EUB in Decision Report 2008-006.

The EUB required that the Applicant accept responsibility and cost for repairing any damage to the IPL except in instances where the damage was premeditated and willful. [ 69 ] In one of its decisions, the Surface Rights Board acknowledged that it was not expressly acknowledging and considering every condition raised by each landowner’s submissions.

It gave reasons for this approach: Decision No. 2010/0613, page 7: The Respondent noted in their August 31, 2010 submission that the Respondents have requested conditions on other files which are not outside the jurisdiction of the Board or compensation issues but which the Board has simply ignored. The Board has altered conditions for those who have requested additional conditions, and the Panel has examined all conditions requested.

Some conditions were beyond the jurisdiction of the Board as it dealt with the structure, location and route of the IPL or had been dealt with by the EUB/Alberta Utilities Commission. Other conditions that were not included dealt with compensation which will be addressed at a compensation proceeding following the issuance of the ROE Orders pursuant to

section 23 of the Act . [ 70 ] Counsel for the landowners stresses that in six of the applications the survey plan was incorrect, but does not state how this problem justifies the quashing of the Right of Entry Order. For example, one landowner Applicant alleges that the survey plan shows only half the land as irrigation, when all of the land is irrigation.

It is difficult to understand how this problem justifies quashing the Order when neither the landowners as a whole, nor this particular landowner, requested a specific condition for irrigated land. [ 71 ] With respect to the Surveys for several other landowner Applicants, the allegation is that a nearby residence is omitted from the survey plan.

While not stated, one must assume the complaint is that the Surface Rights Board ought to have acknowledged the omission, and considered the location of the IPL in light of the existing residence. [ 72 ] In EUB Decision 2008-006 the EUB stated, The Board finds that MATL presented a clear written description of its centreline location in its application and also clearly indicated the centreline on its right-of-way cross sectional diagrams. This is the centreline being approved herein.

If MATL requires any relocation of the centreline, it would need to make such application to the Board. (page 27) [ 73 ] In a review and variance request made by the Swansons to the AUC, T. Swanson and D. Swanson requested that the IPL be moved away from their residence, one mile west.

The AUC assumed jurisdiction to hear the matter, and issued a written decision dismissing the application on March 10, 2011 (decision 2011-088). [ 74 ] The Surface Rights Board has no authority to determine or alter the IPL centreline, so even if the survey plans had shown nearby residences, it is difficult to comprehend how this could have changed the Surface Rights Board’s decisions. [ 75 ] I am well aware that in front of the EUB, MATL was directed to engage in mitigation and ADR processes with the

landowners, and the landowners do not feel that MATL has met these obligations. However, this dissatisfaction does not permit the landowners to raise issues with the conditions imposed by the EUB or Alberta Utilities Commission within the Surface Rights Board process for a Right of Entry Order. [ 76 ] I conclude that the Surface Rights Board’s decisions with respect to the conditions contained in the various Right of Entry Orders were reasonable. VI.

Conclusion [ 77 ] Considering the provision of subsection 15(6) of the Surface Rights Act with the decisions and licence granted by the AUC, one is left to query the basis upon which the Surface Rights Board may be permitted to refuse to grant the Right of Entry Order if all the technical requirements for the application have been met. [ 78 ] In fact, after having determined that a hearing was not required, the Surface Rights Board went on to consider whether MATL had fulfilled the necessary requirements for the granting of a Right of Entry Order.

In every decision at issue in this appeal, the Board concluded MATL had met the requirements: All of the necessary requirements for a ROE Order have been fulfilled by the Applicant, and all necessary documents have been filed with the Board. There exists a valid licence and permit from the Alberta Utilities Commission for the project, and pursuant to s.15(1) of the Act, the Applicant has fulfilled the two requirements before a Board many grant a ROE Order. Firstly, the Panel is satisfied that the Applicant does not have consent from the Landowners, and the final offer was rejected.

Secondly, the Applicant requires the land for valid purposes outlined in the Act at s.12(1)(d), “for or incidental to the construction, operation, or removal of a power transmission line”. The s.15(1) test has therefore been satisfied. [ 79 ] In my view, beyond the technical requirements, which it appears MATL was careful to meet, there are very few areas which the Surface Rights Board can consider, let alone use, to refuse a Right of Entry Order.

And yet, it appears entirely possible that an individual landowner could suddenly find herself receiving notice of the potential construction of a huge power line tower only metres away from her home, or right in the middle of her cattle operation, or right beside the dugout her family uses for drinking water, while the operator has been planning this use of the landowner’s property for years.

This entire regulatory process exemplifies a weakened concept of landowner rights. [ 80 ] This weakened concept of property rights for Alberta landowners is not assisted by the drafters of the Constitutional amendments that resulted in the Charter of Rights and Freedoms being enacted almost 30 years ago. I have expanded on this in a related decision concerning the property rights argument: Von Giessen v.

Montana Alberta Tie Ltd. , 2011 ABQB 219 , 2011 CarswellAlta 859. [ 81 ] As the legislative and regulatory scheme now stands the position and actions of a meticulous corporate entity can certainly supercede the rights of a landowner who naively assumes that they enjoy the right to enjoyment of their property. A careful judicial review in the current legislative climate cannot yield a result in favour of an aggrieved landowner.

In order for landowners to gain enhanced protection of their property rights, the answer can only be found in legislative changes. [ 82 ] The application for Judicial Review is dismissed in its entirety. In view of my decisions in two related applications involving similar landowners objecting to decisions of the Surface Rights Board whereby I did not award costs, it would be unreasonable and unjust in my view to order costs in this case. Accordingly I am exercising my discretion that each party bear their own costs in this matter. Heard on the 22 nd day of March, 2011 to the 30 th day of March, 2011.

Dated at Lethbridge, Alberta this 28 th day of November, 2011

D.K. Miller J.C.Q.B.A. Appearances: Debbie P. Bishop Ackroyd LLP for the Applicants Lars Olthafer Michael Dixon Blake, Cassels & Graydon LLP for the Respondent Montana Alberta Tie Line Ltd. Karen Sinclair-Santos Alberta Surface Rights Board for the Respondent The Surface Rights Board Don Padget Alberta Justice (Constitutional Law) for the Respondent Department of Justice & Attorney General