Responsible Electricity Transmission for Albertans Association v Alberta (Infrastructure and Transportation), 2013 ABQB 162

Court of Queen ’ s Bench of Alberta Citation: Responsible Electricity Transmission for Albertans Association v Alberta (Infrastructure and Transportation), 2013 ABQB 162 Date: 20130315 Docket: 1203 08299 Registry: Edmonton Between: Responsible Electricity Transmission for Albertans Association Applicant - and - Minister of Infrastructure, AltaLink Management Ltd. and EPCOR Distribution & Transmission Inc. Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.D.

Acton _______________________________________________________ Introduction [ 1 ] The Responsible Electricity Transmission for Albertans Association (RETA) seeks judicial review of the December 1, 2011 Minister of Infrastructure ’ s consent to the commencement of construction of the Heartland project electrical transmission line by among others, the Respondents, AltaLink Management Ltd. and EPCOR Distribution & Transmission Inc. That consent was granted by the Director of Land Planning, a statutory delegate of the Minister.

[ 2 ] On September 27, 2010, AltaLink and EPCOR filed a joint application with the AUC for approval of the Heartland project. It is the Alberta Utilities Commission ’ s (the AUC) responsibility to evaluate and assess such proposals.

In 2009, the Legislature declared this project to be a “ critical transmission infrastructure ” project under the Electric Statutes Amendment Act , 2009 SA 209, c. 44, removing the necessity for the AUC to approve expansion or enhancement of the system, leaving it with only the need to assess the better of the two proposed routings and sitings of the transmission line. [ 3 ] On November 1, 2011, after extensive hearings and submissions by interested parties including RETA, the AUC released an extensive written decision recommending the use of the existing transportation/utility corridor (TUC). [ 4 ] The AUC decision was lengthy and detailed and expressly concluded that the project was best located within the TUC as the preferred route.

The matter was forwarded to the Minister for his review since his consent was necessary for the preferred route to go forward. Development in a TUC is controlled by provincial legislation. [ 5 ] Lyle Markovich, the Director of Land Planning, issued the letters entitled Ministerial Consent on December 1, 2011 to all interested parties including the Respondents AltaLink and Epcor.

Issues [ 6 ] RETA applies for Judicial Review of the issuing of the Letters of Consent raising five issues: the Minister ’ s failure to give reasons, or failed to give adequate reasons; the Director of Land Planning did not have jurisdiction to give consent; the Minister did not have jurisdiction to grant the consent, and the decision to grant consent was unreasonable. [ 7 ] In my view, these issues can be reduced to the following: 1. Was the delegation of Ministerial consent to the Director of Land Planning valid and was his consent valid? 2.

Was the Minister required to give reasons for decision, and if so, can reasons be inferred from the Record? 3. Did the Minister have jurisdiction to grant consent, and was the consent reasonable? Standard of review [ 8 ] The Supreme Court of Canada set out a

summary of the appropriate standard of review analysis in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190 . Generally, questions of jurisdiction and vires are subject to a correctness standard ( Dunsmuir at para 59 ), but the Court has cautioned that true questions of jurisdiction are extremely rare ( Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association , 2011 SCC 61 , [2011] 3 SCR 654 (at paras 33-34 ).

The question of whether the delegation of the Minister ’ s power to consent was ultra vires falls within this correctness standard. [ 9 ] However, RETA ’ s characterization of the Minister ’ s jurisdiction to grant consent does not reflect a true question of jurisdiction. RETA argues that the Minister ’ s decision represented a misinterpretation of s. 6 of the E-RDAR and ss. 6 and 6.1 of the SP- RDAR; that is more appropriately a question of substance. In effect, RETA argues that the Minister ’ s consent was wrong in law.

Generally, a Minister ’ s exercise of discretion is subject to deference and reasonableness applies : Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29 , [2012] 2 SCR 108 (at para 43 ) ; Montr é al (City) v. Montreal Port Authority , 2010 SCC 14 , [2010] 1 S.C.R. 427 (at paras 33-36 ); Lake v. Canada (Minister of Justice ), 2008 SCC 23 , [2008] 1 SCR 761 , at para 41 ; Mattel, Inc. v. 3894207 Canada Inc , 2006 SCC 22 , [2006] 1 SCR 772 (at para 40 ); Castle-Crown Wilderness Coalition v.

Alberta (Director of Regulatory Assurance Division, Alberta Environment) , 2005 ABCA 283 , 371 AR 370 (at para 65 ).

[10] The question of whether the Minister must provide reasons is a question of the duty to be fair and natural justice (Baker v.Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 (at para 43), depending upon theparticular circumstances, and the standard of review is correctness. The question of whether the reasons are sufficient, however, relatesback to the question of reasonableness.

The Supreme Court of Canada in Newfoundland and Labrador Nurses' Union v.Newfoundland and Labrador (Treasury Board) (Newfoundland Nurses), 2011 SCC 62, [2011] 3 SCR 708 has commented that merelybecause the reasons are not as complete as a chambers judge would prefer, does not change the standard of review from reasonablenessto correctness.

In particular, the Court noted that Baker did not say that the quality of reasons was a question of procedural fairness (atparas 20-22). [11] Thus, the questions of delegation of the Minister’s discretion and whether reasons are required are subject to the standard ofcorrectness, but the assessment of the decision is subject to the reasonableness standard.

A brief history and background of the establishment and government involvement in the transportation and utility corridorwhich is the subject matter of this impugned Ministerial Consent [12] From the discussion and proposal for a ring road around metropolitan Edmonton in 1955-56 to a draft regional plan in 1976,the concept of having an Edmonton transportation/utility corridor for long-term planning appears throughout the government documentsin the Record filed before the Court in this matter.

The documents contain an Edmonton Transportation/Utility Corridor Re-Assessmentprepared by Stuart, Weir and Company dated April, 1985 who were tasked with the purpose to reassess the land requirements for theEdmonton TUC and to prepare a revised corridor based on a reassessment to deal with the amount of land needed to be set aside for theprimary users: namely the ring road, pipelines, power lines and municipal services. [13] In 1974, Edmonton Restricted Development Area Regulations, AR 287/74 (E-RDAR) and the Sherwood Park West RestrictedArea Development Area Regulations, AR 45/1974 (SP-RDAR) under the Government Organization Act created the restricteddevelopment areas and the schedules attached to the Regulations included the TUC’s. [14] When the corridors were established in 1979, their Primary Uses were identified: rights of way for highways, power lines,pipelines and utility distribution services.

Secondary Uses were also identified as being appropriate as long as they were compatible withthe Primary Uses. Twenty-five possible Secondary Uses were divided into several groups: agriculture, utilities, parking and storage, andparks and recreation. Over time, the government started to acquire ownership of any lands in these restricted development areas, theTUC’s.

By February 1996, the Crown owned 93% of the lands in these corridors. [15] The maps accompanying the documents in the Record at Volume 8 Tab 30 demonstrate the concentration of roads andpipelines within the TUC currently, and identify the approved Heartland Transmission Line through the TUC, as consented to by theMinisterial Order in question here The Delegation Issue [16] Alberta Environment administered the D-RDAR and SP-RDAR until April 25, 2001, when their administration wastransferred to Alberta Infrastructure under regulation, Designation and Transfer of Responsibility Regulation. [17] On May 7, 2001, under the Government Organization Act, then Minister of Infrastructure, Ty Lund, signed a Delegation ofAuthority by Ministerial Order No. 15/01 under E-RDAR and SP-RDAR to: the Assistant Deputy Minister, Property and Supply Management,

the Executive Director of Realty Services, the Director, Land Planning and any acting incumbent in any of the above positions. (Emphasis added) [18] That Ministerial Order has not been rescinded. Section 20(6) of the

Interpretation Act, RSA 2000, CI-8 describes the effect ofa delegation: Unless otherwise expressed in an enactment, if (

a) a delegation, including any appointment made or authority given that is in the nature of a delegation, is made or otherwise givento a person by or under the authority of an enactment, and (

b) while that delegation is in effect, (

i) the office or position of that person making or otherwise giving the delegation has changedor the occupant of that office or position has changed, ... that delegation remains in effect until the delegation is terminated, revoked orrescinded or expires. [19] In April 2004, a 54-page document was prepared by Land Planning Realty Services Branch Properties Division, AlbertaInfrastructure and approved by the then Deputy Minister Eric J. McGhan, entitled Transportation/Utility Corridor (TUC) ProgramPolicy.

It contained an explanation of TUC Primary Uses as “transportation and linear utility facilities which include ring roads,pipelines, major power lines, 69 KV and above amongst other things.” The Policy also identified Secondary Uses which must becompatible with Primary uses and which include such uses as parking, outdoor storage, limited recreational activities and limitedcommercial activities, barriers, pathways and supplemental landscape plantings. “Although these Secondary Uses may last a long time,INFRAS [Infrastructure] has taken care to ensure that these uses can be easily altered, reduced, or completely displaced to accommodatePRIMARY USES”.

Third, the Policy identified Original Uses like agricultural, residential, and sand and gravel mining, and notes “AsPRIMARY USES and SECONDARY USES are gradually developed, they will displace the ORIGINAL USES.” [20] The Applicant argues that if the Minister undertook an unauthorized action, then the Ministerial Order purported to be issuedunder the statute is invalid, relying on Heppner v. Alberta (Minister of Environment) (1977), 1977 ALTASCAD 206 , 80D.L.R. (3d) 112, 4 Alta. L.R. (2d) 139 (SCAD). However, in my view, this case does not apply.

In Heppner, the impugned order-in-council was to create a transportation and utility corridor, a purpose not envisaged by the enabling legislation. In this case, the Minister isauthorized by the regulations under the Government Organization Act to consent to an action, such as commencing the construction ofHeartland, and the Government Organization Act further authorizes the Minister to delegate this authority to consent to certain ProvincialOfficers, including, the Director, Land Planning, who, in fact, signed the consents.

Such orders were expressly contemplated by theenabling legislation. [21] The Applicants further submit that the Minister cannot delegate this discretionary authority to consent to this developmentbecause creates the appearance that a bureaucrat is directing or controlling other Ministers of the Crown. In this case, both the Ministerof Sustainable Resources and the Minister of Environment are subordinate to the Minister of Infrastructure’s decision on this issue.However, the delegate is not acting in his individual capacity when signing the consent, but is acting in the place of the Minister.

Further,it is the regulation, not the Minister or his delegate, that prohibits others from taking steps before the initial decision. [22] In my view, the Director of Land Planning was authorized by the legislation to sign the Ministerial Consents.

Failure of the Minister to Give Reasons [ 23 ] RETA next objects to Minister ’ s failure to give reasons for his decision.

In particular, RETA argues the Minister was required to give reasons that are specifically tied to the considerations set out in s. 6(1.1) of the Regulations which allows the Minister to give written consent to land development he knows is likely to, or will have, an adverse effect on the quality of a natural resource, destroy, disturb, pollute or alter a natural resource. [ 24 ] There is no question RETA is correct in noting the Letters of Consent do not contain stated Reasons for Consent. [ 25 ] However, it is important to review the entire record of proceedings in this matter to determine first whether reasons are required and second whether the record discloses any reasons.

Requirement to Give Reasons [ 26 ] First, are reasons required in this case? [ 27 ] The Applicants rely on Cook v Alberta (Minister of Environmental Protection) , 2001 ABCA 276 , 293 A.R. 237 in which the Alberta Court of Appeal held that failure to provide reasons breached procedural fairness. However, in that case, the Alberta Court of Appeal said at para 53: The requirement to give reasons in the unique circumstances of this case will increase the burden on the Minister and his staff. But not every case will require reasons. Indeed, cases that require the provision of reasons will be the rare exception .

As noted in Aker , the requirements of fairness are context-driven and fact-specific. And, as illustrated by Baker itself, a reasons requirement can be met in a variety of ways. (Emphasis added) [ 28 ] In Baker , , the Supreme Court of Canada set out the factors to consider when determining whether reasons are required. In the case before me, the five Baker factors simply do not arise. They are: (

a) The nature of the decision being made and the process followed in making it: This consent was at the administrative end of the scale of decision making and the process followed in this case is observable in the Record through the AUC decision, the engineering reports, and the briefing notes. (

b) The nature of the statutory scheme in the terms of the statute pursuant to which the body operates: The statutory scheme for the consent is set out above. (

c) The importance of the decision to the individual or individuals affected: There is no issue that this decision is extremely important to the individual applicants. But, in law, they are not directly affected by the decision as the TUC was set aside for this purpose decades ago and they have no legal or equitable interest in the land or the activities on it. The decision is however of significant public importance. (

d) The legitimate expectations of a person challenging the decision: This factor is not an issue in this case as no expectations have been created by the Minister or Ministry.

(

e) The choices of procedure made by the agency itself: The procedure requires the AUC to do a thorough investigation of theapplications for development on RDAs (TUC)s and report to the Minister. That process occurred in this case. [29] In McColl-Frontenac Inc v Alberta (Minister of Environment), 2003 ABQB 303, 336 AR 234 the issue was again whetherthe Minister was required to give reasons; there, the Minister accepted Environment Appeal Board’s recommendation exactly. JusticeMarceau held that the Minister’s reasoning should be taken to be the same as that of the Board.

In this way, McColl-Frontenac Inc. iscloser to the facts here than the intervening decision of Fenske v Alberta (Minister of Environment), 2002 ABCA 135, 303 AR 356where the Minister issued an order partly reflecting the Board’s decision and partly reflecting other policy considerations. However, it isinteresting to note that even in Fenske, the Court held that the Minister’s order was sufficient and no duty of procedural fairness wasbreached.

The Court of Appeal said that the Minister had no obligation to provide additional reasons. [30] Reviewing the law and applying the Baker factors, Justice Marceau determined that there was no requirement for theMinister to provide reasons in the McColl-Frontenac case holding that: 45 In my opinion, Suresh goes no further than the Supreme Court of Canada’s decision in Baker and the facts here are clearlydistinguishable. First, this is not a s.7 Charter case.

Secondly, while the issues are no doubt important to McColl-Frontenac, they cannotbe equated with the individual liberty and security interests at stake both in Baker and Suresh. 46 Applying the factors addressed in these cases:

(1) The nature of the decision and the procedures followed in making it: The process is a two-step process in which the EABholds a hearing, accepts submissions, and renders an advisory opinion to the Minister, who in this case accepted the recommendations.

(2) The role of the decision in the statutory scheme: This decision is part of the remedial process aimed at identifyingcontaminated areas and ensuring that polluters clean the pollution they caused. The decision is not punitive but remedial.

(3) The importance of the decision: The decision is important to the corporation and will likely have precedential effect. It does notaffect security or liberty interests. It is related to statutory obligations. The decision is not only important to the parties, but has importantpolicy implications for other interests, including the public.

(4) Legitimate expectations: Legitimate expectations are not in issue here, as there were no assurances made that the Ministerwould follow a particular procedure (Cook v. Alberta (Environmental Protection) (2001), 2001 ABCA 276 , 293 A.R. 237(Alta. C.A.))

(5) Procedure chosen by the tribunal: The statutory procedure requires that the EAB give recommendations to the Minister andthat the Minister decide. Where the minister decides to accept the EAB’s recommendations in their entirety, the EAB’s reasons areessentially the Minister’s. 47 I conclude that there was no requirement for the Minister to provide reasons. [31] Similarly here, I am satisfied that there was no requirement in the case before me for the Minister of Infrastructure to givereasons.

Can reasons for the Minister ’ s decision be inferred from the Record? [ 32 ] However, if I am wrong, I am satisfied that the Record provides sufficient basis on which it can be said that the Minister gave reasons. [ 33 ] In Dunsmuir , the Supreme Court of Canada discussed the role of the courts in judicial review and discussed the reasonableness standard of review, the standard that the parties agree applies to the Minister ’ s decision.

Reasonableness was further clarified in Newfoundland Nurses at para 15 : In assessing whether the decision is reasonable in light of the outcome and the reasons, Courts must show “ respect for the decision- making process of adjudicative bodies with regard to both the facts and the law ” Dunsmuir at para 48 .

This means that Courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. (at para 15) [ 34 ] The Court (at para 12) quoted from Professor Dyzenhaus and emphasized that: That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them . (Emphasis in original) [ 35 ] Thus, the Supreme Court has directed courts to look to the Record to determine whether a decision is reasonable.

In fact, even in situations where there were no reasons , Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association , the Court noted that a decision and reasons could be implicit (at para 5). [ 36 ] Here, the first obvious source of reasons is the AUC Report provided to the Minister (Volume 5 of the Return) which would have been provided to the Minister when it was released on November 1, 2011.

The report is almost 300 pages summarizing the Alberta Utilities Commission Hearings analysis findings, its conclusion, and decision. [ 37 ] On November 2, 2011, after receiving the report from the AUC, Lyle Markovich, Director Land Planning, prepared a briefing note for the Minister on the decision, Volume 4 pages 584 to 585, to inform the Minister succinctly about the contents of the report. [ 38 ] After the AUC issued its decision, the Minister of Infrastructure received correspondence from unhappy constituents and an example of a letter he wrote in response appears in the Record in which he acknowledges reviewing the citizens ’ concerns about Colchester School that brings into play s 6(1.1)(

a) and (

b) of the Regulations. [ 39 ] Second, the briefing note prepared by Realty Services, Land Planning entitled Briefing Note for Ministerial Consent, summarizes the application ’ s history, the rationale for the Heartland Transmission Project, the role of the AUC, the nature of the project application, and the hearing process, the AUC decision and some of its important features, an explanation of the Ministerial Consents required for this project, future considerations, and the opinion within the Infrastructure Branch that the consents should be issued.

This briefing note is signed by two senior members of the Department, Richard Bramm, Senior Land Use Planner and Brian De Jong, Manager Land Planning North on December 1, 2011. [ 40 ] The Record contains other examples in the Record of correspondence between the Minister and constituents concerned about

the project, indicating that the Minister was keenly aware of the concerns and potential impact of this project from the outset.

Thus, to suggest that additional reasons touching upon the fact that the project will “ adversely affect a natural resource for the activity, use, development or occupation of land ” are required as to why the Minister would consent is not a reasonable expectation in this case. [ 41 ] As well, part of the service providers ’ application the Minister of Infrastructure was provided copies of the SNC Lavolin Environmental Assessment Report and the Stantec Report prepared for approvals required under the Water Act.

These reports were provided to ensure that the Minister of Infrastructure know that AltaLink had complied with the Minister of Environment ’ s requirements. [ 42 ] Neither can the Minister be accused of rubber stamping a consent in this case. It had been carefully considered as indicated by the materials I have referred to. The fact that RETA was not involved in the consent process is not relevant here. I have already noted the fact that once the decision was issued by AUC, people were already writing to the Minister asking him to withhold his consent.

Was the decision to consent reasonable? [ 43 ] Thus, the Minister ’ s involvement throughout the course of this proceeding demonstrates that he had a broad foundation for his consent once the AUC completed its investigation, decision, and conclusion.

Following the Supreme Court ’ s direction not to subvert the decision, and examining the contents of the record, the Minister ’ s decision to issue the consent through the appropriate delegated Director of Land Planning is, in my view, reasonable in the circumstances. [ 44 ] RETA argues that the Record, including the AUC decision, demonstrates how unreasonable the decision was, noting such things as the adverse effects construction will have on the natural habitat, on agricultural purposes, on wildlife, and on the land surface.

It argues that ss. 6(1) of E-RDAR and ss. 6 and 6.1 of the SP-RDAR excludes the Minister ’ s ability to consent to development that could affect areas outside of the RDA, only if the development is for the purpose of confining the RDA operations to the RDA lands. That is one

interpretation of the Regulation (and not a likely one at that), but I find, based on the Record, that the Minister ’ s decision reflects another

interpretation that is reasonable. As noted by AltaLink, the purpose of the RDA regulations were expressly for the purpose of providing for such development in the TUCs. It would be unreasonable to interpret the regulations as narrowly as suggested by RETA because that would defeat the purpose of the regulatory framework. Conclusion [ 45 ] 1. The consent was properly delegated in law. 2. In my view, the Minister had no obligation to give reasons. 3. However, if I am wrong, I am satisfied that the Minister can be found to have given reasons as found in the Record filed. 4.

The decision to consent was reasonable. [ 46 ] The application for judicial review is dismissed. Heard on the 15 th and 16 th days of January, 2013. Dated at the City of Edmonton, Alberta this 15 th day of March, 2013.

L.D. Acton J.C.Q.B.A. Appearances: J. Cameron Prowse, Q.C. Noel Papadopoulos Prowse Chowne LLP for the Applicant Sean McDonough Department of Justice for the Respondent Minister of Infrastructure A. W. (Sandy) Carpenter Fasken Martineau Dumoulin LLP for the Respondent AltaLink Management Ltd. Kim Wakefield Fraser Milner Casgrain LLP for the Respondent EPCOR Distribution & Transmission Inc.