ATCO Power Canada Ltd v Special Areas Board, 2014 ABQB 716

Court of Queen ’ s Bench of Alberta Citation: ATCO Power Canada Ltd v Special Areas Board, 2014 ABQB 716 Date: 20141121 Docket: 1302 00109 Registry: Drumheller Between: ATCO Power Canada Ltd Applicant - and - Special Areas Board and the Assessment Review Board for the Special Areas Board Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.C.

Hawco _______________________________________________________ Introduction [ 1 ] This is an application by ATCO Power Canada Ltd (the “Applicant”) for leave to appeal a decision of the Composite Assessment Review Board (“CARB”) for the Special Areas Board (“Board”). That decision followed a hearing as a result of a complaint

filed by the Applicant against the Board with respect to an assessment made by the Board with respect to a power generating station known as Sheerness. [ 2 ] I am satisfied that the decision of the CARB was a reasonable one and that it ought not be subject to an appeal. Leave is not granted.

Arguments [ 3 ] The Applicant has argued that the CARB erred in law by: 1. failing to formulate the correct test for defining linear property and electric power systems; 2. misapplying key evidence relating to Craneways; 3. failing to answer the question of whether the power lead was linear property; 4. failing to account for or misinterpreting the legal condition date for preparing assessments; and 5. failing to account for decommissioning liabilities. [ 4 ] The Applicant further argued that the issues involved are of sufficient importance that they ought to be granted. [ 5 ] Finally, the Applicant argued that it does have a reasonable chance of success on each of the above issues. [ 6 ] In response, the Respondents submit that the Applicant’s real source of discontent with the CARB’s decision stems from the weight the CARB placed upon the evidence. [ 7 ] The CARB goes on to argue that there were no questions of law decided by the CARB and that, at best, there were mixed questions of fact and law. [ 8 ] In any event, the Respondents argue that before the Applicant be successful, it must satisfy the three-part test set forth in Section 506(5) of the Municipal Government Act , RSA 2000, c.

M-26 which states: On hearing the application and the representations of those persons who are, in the opinion of the judge, affected by the application, the judge may grant leave to appeal if the judge is of the opinion that the appeal involves a question of law or jurisdiction of sufficient importance to merit an appeal and has a reasonable chance of success. [ 9 ] In Edmonton (City) v Edmonton (Composite Assessment Review Board) , [2012] AJ No 281, 2012 ABQB 171 , Justice Topolniski sets out points which she submits are fundamental to applications for leave to appeal from a CARB, including the following: d.

The principles governing the distinctions between a question of law and one of mixed fact and law are as described in Alberta (Worker's Compensation Board) v. Appeals Commission , 2005 ABCA 276 paras 15 to 22 : i. An incorrect statement of the legal standard, or test, or an application of incorrect factors in applying the law to the facts is an error of law. ii. Where there is a discretion involved in applying the law to the facts, the application of the discretion is not a question of law, but a question of mixed law and fact. iii.

However, if a wrong legal principle is used in the application of the law to the facts, or in the exercise of the discretion, there is an error of law. e. As a specialized tribunal, the Board’s decisions are given deference for factual findings, exercise of discretion, questions of policy, and for questions of law that call upon its expertise, including the

interpretation of its home statute ( Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190, (paras 53 and 54 ). f.

The Court may not grant leave to re-try questions of fact ( Associated Developers Ltd , at paras 36-37, Masellis v Edmonton (Subdivision and Development Appeal Board) , 2011 ABCA 157 at para 28 ) nor is it to re-weigh the evidence or the Board's considerations and substitute its findings on the relevant evidence and considerations ( Simonelli v Rocky View (Municipal District) No. 44 , 2004 ABQB 45 at para 72 ). [ 10 ] In Canadian Natural Resources Ltd v Wood Buffalo (Regional Municipality) , [2012] AJ No 829, 2012 ABQB 171 , at para 124 , Justice Sulyma said this: Despite the recency of the MGA amendments, this Court has already had the opportunity to address the standard of review applicable to the CARB decisions under the new appeal scheme.

In Ruppert , Poelman J held that the appropriate standard of review for questions of law was reasonableness, because they involved the tribunal interpreting its own statute and were not central to the legal system as a whole or outside the tribunal’s specialized area of expertise. Poelman J also held that the CARB is an expert tribunal for the purposes of determining appropriate standards of review, as it regularly hears and decides complaints about assessments and has thus acquired significant expertise in this area: Ruppert , at 6, ln 17-20. Justice Ross agreed with Poelman J in Associated Developers Ltd. v.

Edmonton (City) , 2011 ABQB 592 at paras 53-55 . Issues, Answers and Reasons [ 11 ] The questions to be examined follow:

1. Did the CARB err in law in failing to formulate the correct legal test for defining linear property and electrical power systems? [ 12 ] I am of the view that this issue is not a question of law or jurisdiction. Rather, it is a question of mixed fact and law. [ 13 ] In Altus Group v Calgary (Composite Assessment Review Board) , 2011 ABQB 739 , at para 21 , Justice Nation stated: Generally stated, an incorrect statement of the legal standard, or test, or an application of incorrect factors in applying the law to the facts is clearly an error of law. The law must not only be correctly stated, but that correct

interpretation of the law must be applied to the facts, when engaged in applying the law to the facts. Where there is a discretion involved in applying the law to the facts, the application of the discretion is not a question of law, but a question of mixed law and fact. However, if a wrong legal principle is used in the application of the law to the facts, or in the exercise of the discretion, there is an error of law. [ 14 ] In paras 53-59 of its decision, the CARB considered the evidence of Mr. Dan Driscoll, called on behalf of the Board and contrasted it with the evidence of the Applicant, called through Mr.

Cameron Hall. [ 15 ] In its Reasons, para 100, the CARB said this: Having regard for this definition, the CARB is of the view that a critical component in the determination of whether the listed inventory items should be excluded from the jurisdiction of the municipal assessor is whether they are intended for or used in the generation of electricity, which, in this case, is sold onto the grid.

If the inventory item is then intended for or used in the generation of electricity, it then falls within the definition of linear property, which is outside the jurisdiction of the municipal assessor. [ 16 ] The CARB then examined each of the items to which the Applicant took issue and made its determination, based upon the evidence before it and its own expertise. [ 17 ] As such, the issue clearly appears to be application of the facts to the language of the particular regulations and legislation with which it was concerned, which is not simply a question of law. [ 18 ] The CARB’s decision in this regard need only be reasonable and I am quite satisfied that it was. 2.

Craneways [ 19 ] It appears to me, that as in the prior issue, the Applicant is asking this court to re-examine the evidence of the various experts and other witnesses and determine that the CARB either gave certain evidence too little or too much weight. [ 20 ] This court ought not, and will not, do so. [ 21 ] This is a board with a certain expertise. It was considering the evidence before it and determining whether that evidence brought items into the “assessment sphere” so to speak.

They considered, or the facts before it, whether the regulations and legislation applied. [ 22 ] In this matter in particular, the Applicant request this court to consider what it terms an inconsistency in Mr. Kevin Zeiner’s evidence with respect to Craneways. [ 23 ] I refrain from doing so. The CARB considered his evidence. I am not going to question their acceptance of the evidence overall. It would be inappropriate to do so. [ 24 ] Given the nature of this particular dispute and the deference to which the CARB is entitled, this issue also has no reasonable chance of success. 3.

Power Lead [ 25 ] It appears to me that the CARB in paras 133-139, is really more concerned with the issue of lighting rather than the power lead. It does refer to the lack of power leads in para 134, but, if I accept the Respondent’s argument in para 80 and 82, which I do, it did not appear to be, if one might use the term, a “live” issue. In any event, the CARB did give the Applicant an adjustment with respect to the lighting, which necessarily would have taken into consideration the existence or the lack of power leads. It is not a matter of sufficient importance to warrant leave to appeal. 4.

Conditional Date for Assessment [ 26 ] The issue involved here is the age life of the facility. [ 27 ] The Applicant argues, as it did before the CARB, that the CARB ought to determine that Sheerness was going to close its doors, so to speak, by 2026.

If it did, or if it was determined by the CARB that its life was to end in 2026, the assessment ought to have been considerably effected because the market value would have been considerably effected given the relatively short remaining life- span of the facility. [ 28 ] My difficulty with the Applicant’s argument is that while there certainly was evidence that the present coal supply would run out by or before 2026, and that it would not be economically feasible to build rail lines to another source, if one were available, no decision had been made by the Applicant that it would close the facility in 2026. [ 29 ] That is what the CARB took into consideration. [ 30 ] The CARB considered the Applicant submissions.

It stated, at para 158, that it accepted the Applicant’s evidence that “It is currently exploring other options for fuel at the Sheerness facility, but as of the date of the hearing, no decision had been made by the

owners as to alternate sources of fuel.” The CARB went on to state, in that paragraph: “The CARB further notes that there had been no expressed statements to shareholders that Sheerness will close at the end of the coal supply.” [ 31 ] Was the CARB’s decision unreasonable? I am not prepared to say that it was and would therefore not grant leave on this issue. 5.

Decommissioning Costs [ 32 ] These costs follow the operator or the holder of the licence, not the owner of the land. [ 33 ] The Applicant will not, as found by the CARB at para 153, incur these costs until “an unknown date in the future”. [ 34 ] The CARB also understood that the costs of decommissioning was already being built into the Applicant’s rates, for which it has already received some $11 million from its consumers.

It found that, as such, such costs are an operational matter and did not affect the assessed value of the buildings as of the date of the assessment. [ 35 ] I find this to be a reasonable determination. Conclusion [ 36 ] The Supreme Court of Canada has made a number of pronouncements with respect to judicial reviews and appeals of this nature, and include Dunsmuir , Ryan , Pushpanathan . Their most recent decision is Canadian National Railway Company v Attorney General of Canada , 2014 SCC 40 .

At para 55, the Court stated: It is now well established that deference will usually result where a decision maker is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity ( Dunsmuir , at para. 54 ; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160, at para. 28 ; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at para. 30 ).

In such cases, there is a presumption of deferential review, unless the question at issue falls into one of the categories to which the correctness standard applies: constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside of the adjudicator’s expertise, questions regarding the jurisdictional lines between two or more competing specialized tribunals, and the exceptional category of true questions of jurisdiction... [ 37 ] As stated in earlier cases in this province, a board such as the CARB is generally accepted as being “particularly familiar” with the legislation and the regulations with which we are concerned. [ 38 ] I have reviewed the decision of the CARB, it appears to me that it has gone through the evidence with a great deal of care.

Clearly, the Applicant takes issue with the CARB’s conclusions. However, this is not enough to warrant granting leave. [ 39 ] This Court ought not grant leave unless it has been demonstrated that the CARB was unreasonable in its conclusions. I am not satisfied at all that any of its conclusions were unreasonable. [ 40 ] In the end result, I am satisfied: 1. The decision of the CARB do not raise questions of law but are based on the application of facts to the legislation and regulations and are, therefore, mixed questions of fact and law. 2.

That chances of a successful appeal on any of the issues raised are not reasonable. [ 41 ] Leave to appeal is not granted. The Applicant’s application is dismissed with costs. Heard on the 23 rd day of September, 2014. Dated at the City of Calgary, Alberta this 21 th day of November, 2014. G.C. Hawco J.C.Q.B.A. Appearances:

B.K. Dell Wilson Laycraft LLP for the Applicant G.J. Stewart-Palmer Shores Jardine LLP for the Respondent Special Areas Board ARB C.M. Zukiwski Reynolds Mirth Richard & Farmer LLP for the Respondent Special Areas Board