Serink v ATCO Electric Ltd, 2017 ABQB 327

Court of Queen’s Bench of Alberta Citation: Serink v ATCO Electric Ltd, 2017 ABQB 327 Date: 20170516 Docket: 1503 17988 Registry: Edmonton Between: Gregory Bruce Serink, Bernadette Adele Clifton, and Corey Lance Clifton Appellants - and - ATCO Electric Ltd. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Avril B.

Inglis _______________________________________________________ Cases cited ATCO Electric Ltd v Serink, 2015 ABSRB 870; Imperial Oil Resources Ltd. v 826167 Alberta Inc., 2007 ABCA 131; Lamb vCanadian Reserve Oil & Gas Ltd., (SCC), [1977] 1 SCR 517; Dunsmuir v New Brunswick, 2008 SCC 9; EnbridgePipelines (Athabasca) Inc. v Karpetz, 2010 ABQB 108; Husky Oil Operations Limited v Scriber, 2013 ABQB 74; Enbridge Pipelines(Athabasca) Inc. v Karpetz, 2010 ABCA 185; Mattel, Inc. v 3894207 Canada Inc., 2006 SCC 22; Koch v Altalink Management Ltd.,2016 ABQB 678; Terasen Pipelines (Corridor) Inc v R&M Schroter Enterprises Ltd, 2013 ABQB 482; Livingston v Siebens Oil & GasLtd. (1978), 1978 ALTASCAD 83 , 8 AR 439, [1978] 3WWR 484 (SCAD); Zubiek v Corridor Pipeline Limited, 2002 ABQB

452; ATCO Electric Ltd v Thomas, SRB Decision No 2014/0845; Pratch v Director, Northern Region, Alberta Environment andSustainable Resource Development, re: ATCO Electric Limited (September 29, 2015), Appeal Nos. 15-013-018-D (A.E.A.B.); SattvaCapital Corp. v Creston Moly Corp., 2014 SCC 53; Togstad v Alberta (Surface Rights Board), 2014 ABQB 485, aff’d 2015 ABCA192; AltaLink Management Ltd. v Hari, 2015 ABSRB 436 ; Walde v Great Basins Petroleum Ltd., 1985 ABCA 260; R. vMohan, (SCC), [1994] 2 SCR 9; ARC Resources Ltd v Drayton Valley Investments Ltd, SRB Decision No 2015/0706;Penn West Petroleum Ltd. v Singh, SRB Decision No 2014/0901; TAQA North Ltd. v SL Developments Inc., SRB Decision No2013/0580; Devon Canada Corporation v Hill, SRB Decision No2011/0262; Legislation cited Surface Rights Act, RSA 2000, c S-24; Surveys Act, RSA 2000, c S-26; Water Act, RSA 2000, c W-3; Navigable Waters Protection Act,RSC 1985, c N-22 ; Historical Resources Act, RSA 2000, c H-9.

Acronyms used (in alphabetical order): AUC Alberta Utilities CommissionEATL Eastern Alberta Transmission lineERAA Early Resolution and Access AgreementPoD Pattern of dealingROE Right of entryROW Right of Way Agreement Introduction [1] The Appellants, Gregory Serink, Bernadette Clifton, and Corey Clifton, appeal decision number 2015/0870 (ATCO ElectricLtd v Serink, 2015 ABSRB 870) of the Alberta Surface Rights Board (the Board).

They claim the Board’s decision awarded them lesscompensation than they allege they are entitled to given the pattern of dealing (PoD) with other similar landowners, as well as theinjurious affection and adverse effect of an electrical transmission line that crosses their land. This application arises as an appeal under s26 of the Surface Rights Act RSA 2000, c S-24 (the Act). Facts [2] The parties entered an Agreed Statement of Facts (attached to these Reasons as Appendix A). They also led oral evidence.The primary areas of disagreement are the evidence of Mr. Frey, and of the two experts, Mr. Gettel and Mr.

Telford. [3] Under the legislation, the Board is empowered to award compensation to landowners affected by the Alberta UtilitiesCommission’s (AUC) decision to authorize the construction of, among other things, electrical transmission lines. Once the AUCapproves a project, the Board grants rights of entry (ROE) to the utility, in this case ATCO, permitting it to access the lands in questionand awards compensation that reflects the value of any losses suffered by the landowner. [4] The two properties in question are described throughout the evidence as SE 24 (property owned jointly by the Cliftons andMr.

Serink) and SW19 (owned solely by Mr. Serink). The properties are immediately beside one another. The Eastern AlbertaTransmission line (EATL) in question runs through the most northern edge of each of the properties. The right of way ultimately grantedto ATCO extends north and south of the line across the properties. [5] Some of the landowners entered in Right of Way Agreements (ROWs) and Early Resolution and Access Agreements(ERAAs). The landowners who entered into ERAAs were paid an additional $10,000.

The Board considered the compensation paidunder the ROWs, but not the additional $10,000 under the ERAAs, when determining compensation based on a PoD. [6] The Board held a hearing to determine compensation for the Appellants in April 2015. On November 9, 2015 it rendered itsdecision, in which the majority declined to award the Appellants the same $10,000 additional payment made to the land owners whoentered into ERAAs.

The Board held that the ERAAs were separate contracts giving ATCO different rights, including rights of earlyaccess, providing ATCO with significant costs savings, and preventing the landowners from objecting to regulatory proceedings.

Noneof these are within the Board’s jurisdiction to convey. [7] The minority decision opined that the extra $10,000 ERAA payment should be made to the Appellants because thosepayments to the other landowners were additional incentives, they were part of a PoD, and ultimately they should be included in thecompensation awarded regarding the properties and the right of entry orders. [8] The Board members unanimously refused to award any compensation for injurious or adverse effect of the property knownas SE 24, finding that the creation of slivers of land (later in the evidence referred to as “islands”) had essentially no impact on thepotential future sale price of SE 24. [9] The Appellants argued that the Board’s majority decision regarding the $10,000 payments is unreasonable and should be setaside by this Court, and they seek to have this Court adopt the minority’s reasons, ordering ATCO to pay the Appellants the $10,000additional payment per title unit.

Further, the Appellants submit that the Board decision regarding injurious or adverse effect iserroneous, unreasonable, and unsupported by facts and industry practice and should be overturned by this Court. The Appellants seek

$18,000 per acre for the 0.8 acres alleged to be affected a total compensation of $14,400 for injurious effect. Relevant Legislation [10] Sections 25 and 26 of the Surface Rights Act read, in part, as follows: 25(1) The Board, in determining the amount of compensation payable, may consider (

a) the amount the land granted to the operator might be expected to realize if sold in the open market by a willing seller to a willingbuyer on the date the right of entry order was made, (

b) the per acre value, on the date the right of entry order was made, of the titled unit in which the land granted to the operator is located,based on the highest approved use of the land, (

c) the loss of use by the owner or occupant of the area granted to the operator, (

d) the adverse effect of the area granted to the operator on the remaining land of the owner or occupant and the nuisance, inconvenienceand noise that might be caused by or arise from or in connection with the operations of the operator, (

e) the damage to the land in the area granted to the operator that might be caused by the operations of the operator, and (

f) any other factors that the Board considers proper under the circumstances. 26(1) The operator or any Respondent named in a compensation order may appeal a compensation order made under this Act to theCourt of Queen’s Bench as to the amount of compensation payable or the person to whom the compensation is payable or both. 26(2) In this section, ”compensation order” includes (

a) an order of the Board to amend a compensation order in respect of the amount of compensation payable or the person to whom it ispayable, and (

b) an order of the Board for the replacement of a compensation order, if the new compensation order results in a change as to theamount of compensation payable or the person to whom the compensation is payable. 26(6) An appeal to the Court shall be in the form of a new hearing. 26(7) The Court (

a) has the power and jurisdiction of the Board in determining the amount of compensation payable and the person to whom thecompensation is payable, (

b) shall determine the amount of compensation payable and the person to whom the compensation is payable, (

c) shall (

i) confirm the order of the Board, or (ii) direct that the compensation order be varied in accordance with its judgment, and (

d) shall make directions as to costs of the appeal in accordance with subsection (9). 26(10) A judgment of the Court of Queen’s Bench or the Court of Appeal shall be served on the Board, and the Board without anyfurther proceedings shall vary its order in accordance with the judgment. Issues [11] This appeal raises the following issues: 1. What is the standard of review? 2. Should the Board have included the $10,000 ERAA payments in the compensation awarded to the Appellants? 3. Should the Board have awarded compensation to the Appellants for adverse effect or injurious affection in SE 24?

Standard of Review [12] The parties agree that the standard of review is reasonableness, notwithstanding the fact that the appeal to this Court is denovo under the legislation: Imperial Oil Resources Ltd. v 826167 Alberta Inc., 2007 ABCA 131 at para 18; Lamb v Canadian ReserveOil & Gas Ltd., (SCC), [1977] 1 SCR 517.

[ 13 ] The Appellants, while accepting that the standard of review is reasonableness, suggest that if new evidence is introduced on appeal and this evidence renders the decision unreasonable, the Board’s decision is owed no deference. This is likely a too simplistic description of the test.

If a decision is subject to the reasonableness standard, by definition that means the decision is owed deference: Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 - “Reasonableness is a deferential standard.” [ 14 ] Further, the Appellants suggest that where there are “errors on the face of the Board’s decision that make the decision unreasonable, no deference is owed.” However, following the modern approach articulated in Dunsmuir , a court analyzing a decision for reasonableness looks both to the articulation of the reasons and the outcomes; reasons must demonstrate justification, transparency and intelligibility and the result must fall within the range of possible acceptable outcomes, defensible in respect of facts and law ( Dunsmuir at para 47 ). [ 15 ] Deference is owed to the Board based on its expertise: Lamb (at para 24 ); Imperial Oil at para 11.

Further, that expertise extends to determining compensation: Imperial Oil (at para 15); Enbridge Pipelines (Athabasca) Inc. v Karpetz, 2010 ABQB 108 ( Karpetz QB) (at para 35 ); Husky Oil Operations Limited v Scriber , 2013 ABQB 74 (at para 13 ) and to determining whether there is a PoD: Enbridge Pipelines (Athabasca) Inc. v Karpetz, 2010 ABCA 185 ( Karpetz , CA) (at para 5 ). [ 16 ] The admission of new evidence does not change the test; it remains a question of whether the decision is reasonable.

As noted in Imperial, citing the Supreme Court of Canada in Mattel, Inc. v 3894207 Canada Inc. , 2006 SCC 22 , new evidence may “undermine the factual substratum of the Board's decision and thus rob the decision of the value of the Board's expertise,” but this does not eliminate the relevance of the Board’s expertise (at para 15; see also Koch v Altalink Management Ltd. , 2016 ABQB 678 at para 28-29 , citing Terasen Pipelines (Corridor) Inc . v R&M Schroter Enterprises Ltd. , 2013 ABQB 482 at paras 52-56 ).

Rather, the question to ask is whether the new evidence renders the Board’s decision unreasonable or conversely, had the new evidence been before the Board, would its decision have been unreasonable. Decision of the Board Pattern of Dealings [ 17 ] The Board concluded that the ERAAs did not form part of the PoD because the agreements provided for different rights and obligations than the ROEs. In particular, the Board held that there were four significant differences: 1.

Under the ERAA, the landowner agreed to not bring evidence and make their case before the Board or other regulatory bodies, a significant forbearance because the Board’s authority under the ROE is limited. The Board went on to note that even though some of the ERAAs were signed after the AUC granted the permit, this did not change the impact of the ERAA because there continued to be opportunities for review, variance, and appeal of the permit. 2. The ERAAs provided for early entry onto the lands, something that the Board cannot grant under an ROE; 3.

The ERAA agreements are separate from the ROW agreements and they provided for access to the land for limited purposes like conducting surveys; 4.

ATCO obtained significant potential savings from avoiding the cost of regulatory proceedings, even though some of the ERAAs were signed after the AUC proceedings were concluded, since applying for a right of entry from the Board and participating in a subsequent compensation hearing could be expensive. [ 18 ] The Board concluded that the ERAAs were separate contracts under which the landowners gave up different rights than would have been given up under an ROE and therefore the payments under the ERAA were not part of the PoD and not relevant to the compensation payable to those who did not enter into an ERAA.

Evidence before the Court Mr. Telford [ 19 ] Robert Telford, a land consultant and appraiser, appeared as an expert witness in areas of market value and compensation, under the Act as well as PoD evidence. He performed a market value appraisal as well as defined the two typical approaches to valuation in these matters. [ 20 ] He identified the location of each of the properties in question, and indicated that the area is zoned for high-end industrial use. He testified that in the future the area will all likely become focused on medium and heavy industrial use.

In his report, tendered as Exhibit 2, he described market value to be the typical method of appraisal, using the highest and best use of the land in question as the standard. It is an agreed fact between the parties that the ROW compensation determined by the board is appropriate. [ 21 ] Mr. Telford then went on to assess each of the factors in s 25(1) of the Act , including such considerations as market value, loss of use, adverse effect and damage to land. Notably he indicated that none of those factors were identified as present.

His report identified the estimated empirical compensation, which is also part of the agreed facts before me. [ 22 ] Mr. Telford testified that sections 25 (

c) and 25(

d) of the Act specifically consider the prospect of future compensation to a landowner due to loss of use by the owner or occupant of the area, and the adverse effect, nuisance, inconvenience and noise that might be caused by the operations of the operator. However, in his calculations the latter group of factors (he called them “general disturbance”) was to be a first year consideration only, not requiring an ongoing payment.

[23] He then described the PoD approach, which is a comparative method considering similar agreements for similar projects thatwill have an all-inclusive value for all of the rights granted. Here, he carried out research to look at dealings near the effective date. Therewere no dealings within that year of similar projects. But looking three-four years before, Alta Link did have some properties in the areanegotiated during 2010-2012. There was a range of value of $10,500 to $23,400 per acre. Annual compensation was $471 per year foruncultivated property. These agreements are in

Schedule 5 of Mr. Telford’s report. [24] Mr. Telford summarized for the Court the sixteen negotiated agreements in place for the EATL. He specifically noted hiscriteria for selection included the negotiated ROW agreements only. Many owners, he said, negotiated ERAAs which allowed ATCO tocarry out early surveys and other access, but he did not consider the ERAAs in his PoD analysis because they were separate and distinctfrom compensation.

Further, he asserted that while some ERAAs were signed or at the same time ROWs were granted on some land bythe Board, the ERAA protected ATCO from all forms of regulatory proceedings, not simply the initial Board review. [25] This categorization of the secondary payment is a key difference between the Appellants’ and Respondent’s positions. [26] When given an opportunity to comment on the expert report provided by the Respondent, Telford noted that no PoD evidencewas provided.

Further, he disagreed with the evidence offered that the small areas of land cut off from the main portion of the propertyby the EATL and its ROW cannot now be developed: he called that assertion speculative and confusing. He also opined that thenorthwest corner of SE 24 was a hub of pipelines before the EATL’s construction, and was therefore not appropriate for developmenteven before the EATL’s presence. [27] On cross examination, it was pointed out to Mr.

Telford that many ERAAs were signed after the Board’s initial approval,even though the ERAAs include a promise that the landowner will not oppose the AUC’s approval. Mr. Telford pointed out that theERAA includes agreement that no decisions will be opposed, not just the AUC’s initial approval. He did agree that many of the ERAAswere signed, and the $10,000 payment made by the Respondent, months and at times over a year after the AUC granted ATCO approvalto operate and construct the transmission line. The Board specifically noted that nine landowners signed before the AUC approval, 13signed after the approval.

These agreements included homeowners who objected to the EATL at the AUC hearing. Garnet Frey [28] Mr. Frey is one of the landowners affected by the construction of the EATL. He, along with the Appellants and others, formedthe “North Bruderheim Group” (NBG) of owners that appeared before the AUC to oppose the proposed path of the EATL. Mr. Freyappeared before the AUC and registered his concerns. After the AUC approved the EATL he did not appeal that decision. He signed theROW agreement on June 25, 2013. He then also received $10,000 for signing the ERAA.

He indicated in court that he would not havesigned the ROW on that date without the $10,000 ERAA payment. Brian Gettel [29] Mr. Gettel was also qualified as an expert before the Court, in the field of appraising industrial land and analyzing negativeimpact on the value of industrial land from external services. He gave evidence that the EATL would create three areas that areeffectively severed from the balance of the SE 24 due to the pre-existing AltaLink power line, the EATL, and its right of way space. Heindicated that this would “sterilize” that land from industrial development.

This, he says, renders the market value of the land,approximately 0.8 acres, negligible. [30] Mr. Gettel indicated that surface industrial storage would have still been available to this land despite the pre-existence of theTransAlta line (although permanent structures would not be possible), which was a lost opportunity when the EATL was placed there.He suggested that the Board did not consider this severed portion of the property. [31] Mr. Gettel did not provide PoD evidence to the Court. [32] The Appellants Mr. Serink and Mr. Clifton testified as well.

The Parties’ Submissions The Appellants [33] The Appellants argue that the Majority’s decision summarized above contains numerous errors that render the Majority’sconclusion on the additional payments of $10,000 unreasonable and in need of variation. They argue that the ERAA payment shouldhave been available to the Appellants because: • There was no longer a right of appeal to the AUC available to many of those that signed the agreement, which included a waiver.In fact, several of those that received the $10,000 had already opposed the EATL, just as the Appellants had, for example Mr. Frey.

TheERAAs cannot be extended to apply to the Board. • Mr. Frey’s evidence should be interpreted to mean that the $10,000 was a top up payment, nothing else.

Twenty of the 22landowners (that is everyone but the Appellants) received this payment and thus it must be included in a PoD analysis. • The Board erred when considering the PoD evidence, which was contrary to the Court of Appeal’s decision in Livingston vSiebens Oil & Gas Ltd. (1978), 1978 ALTASCAD 83 , 8 AR 439, [1978] 3WWR 484 (SCAD) which noted that a large numberof deals in an area must be considered in a PoD. • Further, the ERAAs did not grant early access to the signatories, which was another ground used by the Board to differentiate the

payment. [ 34 ] Only the property known as SE 24 was claimed to suffer adverse effect by the Appellants, specifically the severed areas of land along the north portions of the property. They allege the key error is that the effect is on the current use of the land.

Further, they allege that the Board erred when it held that the impact of the “hub” in the upper corner of the land pre-existed the EATL and no further damage was created by the EATL, which is also alleged to be an error on the evidence. [ 35 ] Assessing the land for its current agricultural use, rather than its future heavy industrial use, was also part of the Board’s reasoning. The Board, the Appellants argued, should have considered the highest and best use of the land, not its current use. [ 36 ] Finally, Mr.

Gettel indicated that it is an industry standard to compensate landowners for sterilized portions of the land. The Respondents [ 37 ] The Respondents argue that the 16 comparable properties relied on by Mr. Telford established a valid PoD and were properly considered by the Board.

They further note that the Appellants, carrying the onus to establish that the Board’s ruling was unreasonable, failed to call any PoD evidence. [ 38 ] They further argue that there are significant differences between the ROE compensation and the payments for the ERAAs that appropriately distinguish the two: the ERAA payments were not compensation and were properly not treated as such by the Board. [ 39 ] Counsel for the Respondent argues that the Appellants failed to meet the onus on them to prove to the Board that the project caused them to experience actual losses.

They argue that such compensation cannot be based on speculation and rely on Zubiek v Corridor Pipeline Limited , 2002 ABQB 452 to support that principle. [ 40 ] They also note that the Appellants have not contested the per-acre compensation ($18,000) determined by the Board. Their claim is for 0.8 acres at that rate. [ 41 ] They further rely on Zubiek to support their argument that the standard of review requires this Court to show curial deference to the Board’s decision, in particular recognizing their expertise.

Analysis Pattern of dealings [ 42 ] Evidence related to the PoD was accepted as the basis for the Board’s decisions on compensation in Livingston v Siebens Oil & Gas Ltd. , at para 11 , where the Court held that the Board should only depart from the compensation established by a pattern of negotiations between landowners and oil companies with “the most cogent reasons.” [ 43 ] In Imperial Oil Resources Ltd. the Court of Appeal noted (at para 21) that the PoD principle involves considering “comparable” patterns of dealings in relation to the terms of the rights granted, type of land, the proximity, date, acreage and nature of the parties. [ 44 ] In Karpetz , QB Justice Macklin stated: PoD is an approach that refers not only to the amounts paid but also to the method by which compensation is determined. ...The amounts reflected in compensation awards to landowners involved in other RoWs need not be identical to those in this case.

The approach, however, must be similar. [ 45 ] The Courts in both Karpetz QB and Karpetz CA indicated that it was not necessary to establish that each of the contracts forming part of the PoD were fair, since the law presumes that a contract is consensual unless it is grossly unfair and improvident, there was no independent legal advice, or there was an overwhelming imbalance of power.

In Karpetz CA, the Court of Appeal noted that the Board is entitled to consider whether a PoD refers to “truly comparable compensation packages” (at para 20). [ 46 ] ATCO provided 16 comparable agreements, related to the same project, the same area and on similar lands, taking into account the rights granted, the type of land, proximity, date, acreage, and the nature of the parties ( Imperial at para 21). ATCO’s expert, Mr.

Telford, asserted that there was a pattern of dealing for compensation for the area under the ROE Orders, based on the ROW agreements, but excluding the ERAAs. [ 47 ] The Appellants, however, assert that the appropriate agreements to establish a PoD include the ERAA agreements and the $10,000.00 additional payments. The Board rejected the inclusion of the ERAAs because they represented significantly different rights and obligations than those in the ROEs. The Appellants argue that the Board erred in five respects: 1.

The Board wrongly concluded that under the ERAAs, the landowners waived their rights to argue before the AUC or to appeal the AUC’s decision. In particular, the Appellants note that only seven landowners entered into ROWs and ERAAs before the AUC hearings, while the majority of landowners did so after the AUC hearings and time for appeal of the AUC decision had expired. 2.

The Board wrongly concluded that the ERAAs gave ATCO early access to the lands since the right to conduct legal surveys on the land is a statutory right under the Surveys Act, RSA 2000, c S-26 and the ROWs also gave the right to conduct legal surveys; there was no need to conduct other surveys outside of the Right of Way needed for the route approved by the AUC; and, the right to conduct

surveys under the ERAAs was intended to permit ATCO to conduct surveys for the AUC application. 3. The Board wrongly concluded that the ERAAs allowed ATCO to avoid regulatory proceedings and save costs, since the only logical

interpretation of para 1 of the ERAA is that the ERAA forbearance was only in regards to the AUC hearings and not “any other regulatory agency”. The AUC is the only regulatory body for issuing licenses and permits for the construction and operation of a transmission line in Alberta. In particular, the Appellants say that the phrase “any regulatory body” cannot include the Board, because without a permit and license from the AUC, no questions of regulatory approval can arise before the Board. 4.

The Board’s alleged fourth error is finding that ATCO acquired significant savings from the $10,000 payments, because the Board’s obligation is to determine the value to the landowner of what is taken, not the value to ATCO. Value to the landowners is the $18,000 per acre plus the $10,000 additional compensation – that is the amount the other landowners received as fair compensation for their rights. 5. Finally, the Board erred in concluding that the ROW Agreement and the ERAAs were two separate agreements, giving up separate rights.

The Appellants argue that the agreements were inextricably linked, noting in particular Mr. Frey’s evidence that he would not have signed the ROW if not for the ERAA. [ 48 ] Many of the Appellants’ arguments overlap, but I will deal with each. Analysis Alleged Error #1 – Most of the ERAAs were signed after the AUC decision [ 49 ] The Board considered and dismissed the Appellants’ argument that the time for appeals of the AUC decision had passed when it noted that some of the ERAAs were signed after the AUC decision.

The Board concluded that after a permit is granted and the time for appeals from that decision has passed, there may still be review, variance and appeal of the permit. In fact, ATCO points to the Appellants’ own evidence regarding routing amendments, and notes that despite the applicable appeal periods, parties could still intervene or object if there were (and there were in this case) amendments.

Further, ATCO disputes the Appellants’ argument that the routing amendment only affected one landowner, noting that AUC Decision 2013-167 outlined the affected landowners and their non- objection. [ 50 ] In any event, the ERAAs were intended to deal with avoiding any possible hearings or decision.

That these might be unlikely would be a consideration that parties would take into account when entering into the ERAA, but even if such appeals, reviews, and amendments were unlikely, the parties who entered into the ERAA still gave up a right to participate. [ 51 ] ATCO further cites AUC Decision 2012-303, in which the Commission expressly directed ATCO: The Commission therefore directs ATCO Electric to review the approved route between nodes CD211 and CDpr211, and to investigate whether a lower impact route is available, and if so, to make the appropriate amendment application to the Commission. [ 52 ] The Appellants argue that the Board in ATCO Electric Ltd v Thomas , SRB Decision No 2014/0845 held that the ERAA payments in that situation was a pattern of dealings, but the Appellants fail to note that the Board further concluded that there was no evidence before it of whether the payment was for specific undertakings or part of the compensation package.

Here, there was evidence before the Board that the ERAA payments were not part of the compensation package, but payment for entirely different rights. [ 53 ] I agree with ATCO: the Appellants’ approach takes a very narrow

interpretation of the ERAAs. The Board, knowledgeable and expert in this field, was well aware of the timelines and that many of the ERAAs were entered into after the AUC decision, but concluded that the landowners who entered into the ERAAs were making significant concession in agreeing not to take

part in any regulatory hearings, regardless of the timing of those commitments. As long as some form of variation or proceedings may have occurred, the ERAA provided ATCO value from the signatories that they did not receive from the Appellants. Alleged Error #2 – Early access [ 54 ] The Appellants argue that the ERAAs did not give ATCO early access to the lands, pointing to the Surveys Act (s 16), and the fact that the ROW agreements also permitted legal surveys.

Further, s 14(1) of the Surface Rights Act provides that an operator may enter onto private land to conduct surveys, but, I note that under (2) they must make reasonable attempts to give notice to the person in possession of the land before they enter onto it and (3) provides that the operator may apply to this Court for any order necessary to enable the operator to exercise those rights. [ 55 ] As ATCO notes the ERAAs account for the reality that there may be some resistance to simply relying on these statutory provisions and the ERAAs make it easier for ATCO to access the lands with certainty over the entire parcel, avoiding any dispute over what “surveys” or “examinations” entail under the legislation. [ 56 ] The Appellants further argue that once the AUC approved the route, there was no need to go outside of the right of way for surveys.

ATCO responds that this ignores the one amendment that did occur, the potential amendments that might have occurred, and the fact that AUC Decision 2012-303 expressly directed ATCO to review the approved route to determine if there was a more low impact route available.

Including the early access provisions to the entire parcel (not just the right of way) in the ERAAs permitted ATCO to assess potential route amendments efficiently and cost effectively. [ 57 ] ATCO stresses that the access rights granted under the ERAAs relate to access over the entire parcel, while those under the ROW agreements or the ROE orders are more limited in scope and extend only to the right of way under the AUC permit and license.

Moreover, the ERAA rights are access only, while the ROW and ROE rights are interests in land which may be registered on title.

Alleged Error #3 – the ERAAs only relate to AUC regulatory proceedings [58] The Appellants argue that the Board erred when it concluded that the ERAAs permitted ATCO to avoid regulatoryproceedings, while ATCO argues that para 1 of the ERAA clearly extends to proceedings before not just the AUC, but also the Board’sright of entry process, the Board’s compensation process, appeals to the Court of Queen’s Bench and the Court of Appeal, and otherregulatory bodies that might become involved in the process. [59] Clause 1 of the ERAA reads: The Landowner acknowledges that the Company proposes to construct the Transmission Line across the Lands in accordance with thegeneral routing as shown on the sketch plan initialled by the Landowner and attached as

Schedule “A” (the “General Routing”), asinitialled and amended to show preferred access to the General Routing (the “Preferred Access”). The Landowner has no objection to theGeneral Routing, nor any objection to the Project or to the Alberta Utilities Commission granting a permit and licence to construct andoperate the Transmission Line and all other facilities forming part of the Project.

The Landowner undertakes not to object to, orintervene in, any proceedings before the Alberta Utilities Commission or any other regulatory agency in respect of any necessaryregulatory approvals for the construction and operation of the Transmission Line and all other facilities forming part of theProject. (Emphasis added) [60] The Appellants argue that the objective of the paragraph is to confirm that the landowner has no objection to the constructionand operation of the ATCO project, and accordingly, the last sentence of the paragraph must be read in a manner consistent with thisobjective.

Once the project was approved by the AUC, the Appellants argue, there were no further regulatory hurdles. Many of thelandowners who signed ERAAs actually objected or appeared as witnesses at the AUC hearing in opposition to the application.

As aresult, the Appellants argue, the only conclusion that can be reasonably drawn is that the purpose of the ERAA was to provide additionalcompensation for entering into the ROWs. [61] The Appellants argue that ATCO’s submission before the Board and the Court that the undertaking to not object or intervenein “any proceedings before the Alberta Utilities Commission or any other regulatory agency” includes the Board or the Courts cannot besupported by the language of the Agreement since only the AUC has the jurisdiction to approve and license the project. [62] ATCO responds that in addition to agreeing to not pursue objections or interventions before the Board or the Courts, there areother regulatory bodies that may hold proceedings including approvals from Alberta Environment and Parks under the Water Act, RSA2000, c W-3, the Navigable Waters Protection Act, RSC 1985, c N-22 or from Alberta Culture and Tourism under the HistoricalResources Act, RSA 2000, c H-9, citing as an example the Environmental Appeals Board decision in Pratch v Director, NorthernRegion, Alberta Environment and Sustainable Resource Development, re: ATCO Electric Limited (September 29, 2015), Appeal Nos.15-013-018-D (AEAB).

ATCO notes that this case was an example of an additional regulatory process arising following the conclusionof an AUC proceeding in relation to a transmission line, and which clause 1 of the ERAA agreement would have helped ATCO avoid. [63] In my view, the Appellants’ very narrow approach to interpreting the contract is not consistent with the actual language of theagreements. There is no basis in the language of the ERAA to conclude that the very broad language of “any other regulatory agency”and “any necessary regulatory approvals” should be limited to the AUC and AUC approvals. This

interpretation would render all thelanguage after “the Alberta Utilities Commission” virtually meaningless. [64] The context in which many of these Agreements were signed also suggests that this

interpretation cannot be correct. By theAppellants’ own argument, many of the parties entered into the ERAAs after the AUC conclusion. [65] It is a basic principle that the purpose of contract

interpretation is to determine the parties’ intentions by reading the contractas a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to theparties at the time of formation of the contract. (Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 at para 47). The ordinary andgrammatical meaning of the words “and any other regulatory agency” in the phrase “any proceedings before the Alberta UtilitiesCommission or any other regulatory agency” must mean regulatory bodies in addition to the AUC.

Further, given the fact that theagreements were entered into after the AUC approval, “any necessary regulatory approvals” must refer to something other than thealready reached approvals. [66] The Appellants argue that the Board’s role is limited to granting right of entry orders and determining compensation, citingTogstad v Alberta (Surface Rights Board), 2014 ABQB 485, aff’d 2015 ABCA 192.

Therefore, they argue “any other regulatoryagency” cannot relate to the subsequent clause “any necessary regulatory approvals for the construction and operation of theTransmission Line and all other facilities forming part of the Project” since the Board does not approve the construction and operation ofthe project. [67] I consider that the granting of ROE orders and compensation orders are, on their face, necessary for the construction andoperation of the project, even if they are not the actual approval of the construction and operation. [68] The Appellants further argue, relying on Togstad and AltaLink Management Ltd. v Hari, 2015 ABSRB 436 , thatonce the AUC issues a permit and a license, any objection before the Board is a formality since the Board cannot change the AUCapproval.

Again, this misses the point. The parties to the ERAA are agreeing to not object or intervene in any regulatory process relatedto the project, not just one that is related to the AUC approval. As ATCO argues the ERAAs are intended to grant regulatory certainty inrespect of all regulatory process related to the construction and operation of the transmission line. [69] Keeping in mind that the standard of review of the Board’s decision is reasonableness, I find that the Board’s

interpretation of

the contract is, at the very least, reasonable. Alleged Error #4 – ATCO avoided significant expenses under the ERAA [70] The Appellants argue that the Board erred when it found that ATCO avoided significant expenses because in doing so theBoard ignored the basic premise that the Board should determine compensation for surface takings based on the “value to the owner ofwhat is taken”. The Appellant further argues that compensation should not be based on value to ATCO, but on the value to thelandowner of what was taken. [71] The benefits and rights under the ERAA are not related to any expropriated rights.

The rights under the ERAA are in thenature of a license - the right to enter onto the land – in a scope and nature that cannot be granted under the Surface Rights Act. The rightsgranted under an ROE are different than those under the ERAA and therefore there is no corresponding entitlement. [72] The Appellants then repeat their argument about the correct

interpretation of clause 1 of the ERAA, suggesting that ATCOcould have named the Board rather than saying “any other regulatory agency” if that was its intent. As ATCO noted, the clause wasintended to ensure regulatory certainty before what could be a fairly wide range of regulatory bodies, some more likely than others.

Thatlanguage was used to give broad protection to ATCO, and it paid the landowners for that assurance. [73] The Appellants rely on the decision in Walde v Great Basins Petroleum Ltd., 1985 ABCA 260, suggesting that the Boardignored their corresponding deprivation to ATCO’s savings and arguing that the Board erred when it considered ATCO’s cost savings inavoiding regulatory proceedings without considering the value to the owner of what was taken. However, the Appellants did not agree towaive their objections or submissions before any regulatory agency.

In fact the Appellants made significant and time consumingrepresentations before the Board and appealed to this Court. They preserved their right to do so by not entering into the ERAA andtherefore did not receive the additional payment. [74] The “value to the owner of what was taken” refers to the expropriated interest, interests entirely unrelated to the rights andbenefits under the ERAA.

Alleged Error #5 – The ROW and ERAA agreements are not separate agreements [75] The Appellants argue that the ERAA and ROW are inextricably linked because they were signed at the same time and as Mr.Frey testified, “one could not be concluded without the other”. [76] The Board concluded that the ERAA and ROW agreements dealt with different rights and obligations. That was a reasonableconclusion, both on the evidence and on the Board’s

interpretation of the agreements. [77] Mr. Frey testified that he would not have signed the ROW without the additional compensation under the ERAA. That isevidence of what induced Mr. Frey to enter into the contracts, but is not evidence that one could not be concluded without the other. TheROW agreement granted the same rights as the ROE orders; the ERAA went further. It gave ATCO right of entry to the whole parcelearlier and contained a waiver of objections and intervention in regulatory proceedings. [78] There is nothing in the ROW that necessitates the ERAA. Mr.

Frey could well have signed the ROW, granting ATCO aninterest in the right of way, but preventing ATCO from having early access to the entire parcel and preserving his right to object if anyvariations affecting his land arose. Conclusion on Pattern of Dealing [79] The Board concluded that there was a PoD based on the ROWs, but excluding the ERAAs.

The new evidence presentedbefore this Court did not appreciably change the factual matrix underlying the Board’s decision and consequently the standard of reviewis whether the decision is reasonable. [80] The Board addressed each of the Appellants’ submissions, rejecting the argument that the timing of the ERAAs meant thatthere could be no waiver of participation in regulatory proceedings; rejecting the argument that the rights under the ERAAs were thesame as the ROWs, and finding that the ERAAs gave ATCO a right to early access to the entire parcel, unlike the ROW.

These wereconclusions that are specifically part of the Board’s expertise in determining compensation: Imperial Oil (at para 15); and Karpetz QB)(at para 35) and in determining whether there is a PoD: Husky Oil Operations Limited (at para 13) and Karpetz, CA (at para 5). [81] The Board’s reasons demonstrate justification, transparency and intelligibility. Further, the result falls within the range ofpossible outcomes. The Board interpreted the ERAAs within the entire factual context of the regulatory scheme and its analysis wasreasoned and supported by its reasonable findings of fact and law.

Injurious affection/ adverse effect [82] The Board’s decision considered Mr. Gettel’s evidence and noted the hub of pipelines in the upper corner of SE 24, indicating“it was not explained how that area could be developed for industrial use.” They further found that “There is no limitation on use of theslivers for the current agricultural use.” [83] The Appellant’s Appellants’ witness on this point was again Mr. Gettel. Initially the Respondent objected to Mr. Gettel’squalification as an expert. Ultimately this Court ruled that their objection was not based on whether Mr.

Gettel was qualified as an expertwhen applying test for expertise set out by the Supreme Court of Canada in R. v Mohan, (SCC), [1994] 2 SCR 9, but infact was an argument of weight. It appears that this is similar to the Board’s findings: it gave little weight to Mr. Gettel’s assertions thatthe severed portions of land of SE 24 were in fact limited in their use at the time of the decision and dismissed that claim. It also noted,

implicitly, that Mr. Gettel’s evidence of comparable properties in the area to determine quantum were somewhat randomly reduced in various ways to, presumably, account for differences between the comparators and the subject property. [ 84 ] Further, the Appellants argued that not being a certified Land Surveyor, Mr. Gettel’s report that the severed property was measurable at 0.8 acres was unreliable evidence. The Board also found that the comparable properties used by Mr. Telford were closer to the subject lands (however they noted that Mr. Telford did not account for some that lacked highway frontage).

These observations may be true, but based on my analysis below, this becomes irrelevant. [ 85 ] The Appellants argued correctly that the Board and the Courts have regularly based compensation findings on the current use of property.

They rely on: • ARC Resources Ltd v Drayton Valley Investments Ltd , SRB Decision No 2015/0706; • Penn West Petroleum Ltd. v Singh , SRB Decision No 2014/0901; • TAQA North Ltd. v SL Developments Inc., SRB Decision No 2013/0580. [ 86 ] In each of these cases the landowners sought increased compensation for loss of potential future use, particularly when no steps or efforts had been undertaken to convert the property in question to that potential, higher-valued, use. [ 87 ] Further, they note, as quoted from Devon Canada Corporation v Hill , SRB Decision No. 2011/0262 by Justice Sanderman in Zubiek , “The Panel finds that in the absence of actual or at least approved plans for development at the effective date, any claim for loss of future potential is speculative and hypothetical.” I find that same observation applies here. [ 88 ] The Agreed Statement of Facts confirms that the use of SE 24 was pasture land in practice at the time of the Board’s decision.

Despite its zoning for Heavy Industrial use by Strathcona County, it was not used, or about to be used, as such at the time of the EATL hearings both at the AUC and at the SRB. In fact, there were no such plans by the time this matter was before this Court. [ 89 ] Mr. Gettel’s explanation of his position that, contrary to the Board’s findings, the hub of pipelines already in place in the upper corner of the property further was irrelevant does not persuade me that the Board’s findings were unreasonable.

Conclusion [ 90 ] Ultimately I conclude based on the evidence before them the Board’s findings on all grounds of this appeal were reasonable. The viva voce evidence called exclusively before this Court has not affected that assessment. I rule in favor of the Respondents. [ 91 ] As was requested by counsel, I decline to make an order of costs at this time as it was not yet argued either in written or oral submissions. Either party may apply to this Court for costs. Heard on the 1 st and 2 nd day of December, 2016. Dated at Edmonton Alberta this 15 th day of May, 2017. Avril B. Inglis J.C.Q.B.A.

Appearances: Richard C. Secord & Ifeoma M. Okoye Ackroyd LLP for the Appellants Blake Williams & Tim Myers Bennett Jones LLP

for ATCO Electric Ltd. Appendix A: Agreed Facts IN THE COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON COURT FILE NUMBER: 1503-17988 B E T W E E N: GREGORY BRUCE SERINK, BERNADETTE ADELE CLIFTON, and COREY LANCE CLIFTON Appellants - and - ATCO ELECTRIC LTD. Respondent AGREED STATEMENT OF FACTS 1.

Gregory Serink is the registered owner of lands located at SW¼ 19-56-20-W4M, Lot 1, Block 1, Plan 032 0695 (as further described in Certificate of Title 072 190 289) (the “ SW¼ 19 ”) and Bernadette Clifton and Corey Clifton, each as to an undivided ½ interest, and Gregory Serink as to an undivided ½ interest, are the registered owners of lands located at SE¼ 24-56-21-W4M (as further described in Certificate of Title 052 029 441) (the “ SE¼ 24 ” and, together with the SW¼ 19, the “ Lands ”). 2.

The Surface Rights Board (the “ Board ”) issued Right-of-Entry Order No. 0002/2014 (the “ SW¼ 19 ROE Order ”) on January 7, 2014 granting right-of-entry to ATCO Electric Ltd. (“ ATCO Electric ”) in respect of 11.31 acres of the surface of the SW¼ 19 for or incidental to the construction, operation and removal of the Eastern Alberta Transmission Line (the “ Transmission Line ”).

The Board issued Right-of-Entry Order No. 0048/2014 (the “ SE¼ 24 ROE Order and, together with the SW¼ 19 ROE Order, the “ ROE Orders ”) on January 21, 2014 granting right-of-entry to ATCO Electric in respect of 13.73 acres of the surface of the SE¼ 24 for or incidental to the construction, operation and removal of the Transmission Line. [ Certified Record of Proceedings, TAB B, ROE Orders ] 3.

The effective date for the determination of compensation payable by ATCO Electric in respect of the SW¼ 19 ROE Order is January 7, 2014 and, in respect of the SE¼ 24 ROE Order, is January 21, 2014 (the “ Effective Dates ”), being the dates the ROE Orders were issued by the Board. [ Certified Record of Proceedings, TAB D, Board Decision No. 2015/0870, at p. 2 ] 4. The issue of any compensation payable for construction damages is the subject of a separate application and is not to be addressed in this proceeding.

5. ATCO Electric provided the following payments to the Appellants pursuant to

Section 20 of the Surface Rights Act (the “ Act ”): • SW¼ 19 ROE Order: $206,330.00 to Gregory Serink; and • SE¼ 24 ROE Order: $232,420.00 to Bernadette Clifton, Corey Clifton, and Gregory Serink. The foregoing payments were to be offset against the total compensation payable by ATCO Electric to the Appellants pursuant to Section 25(6) of the Act . [ Ibid , at p. 2 ] 6.

Following the Board's decision in this proceeding, ATCO Electric provided payment to the Appellants consistent with the amounts set out in Board Compensation Order No. 1019/2015 for the SW¼ 19 ROE Order and Board Compensation Order 1020/2015 for the SE¼ 24 ROE Order. [ Certified Record of Proceedings, TAB C, Board Compensation Order Nos. 1019/2015 and 1020/2015 ] 7. The subject Lands are located in the northwest portion of Strathcona County near the Town of Bruderheim, and are approximately 11 miles northeast of Fort Saskatchewan.

The SW¼ 19 and SE¼ 24 are divided by Secondary Highway 830, with SW¼ 19 being located to the east of Secondary Highway 830. The SW¼ 19 is a consolidation of a 7.29 acre building site in the northwest corner of NW¼ 18-56-2-W4M with the adjoining quarter

section to the north, which is the SW¼ 19. The residence of Gregory Serink is located on SW¼ 19. [ Ibid , at p. 3 ] 8. The use of the SW¼ 19 is a mixture of pasture and crop land while the SE¼ 24 is primarily used as pasture land. [ Ibid , at p. 3 ] 9. According to the Strathcona County Land Use Bylaw, the subject Lands are designated as follows: • SW¼ 19: Medium Industrial; and • SE¼ 24: Heavy Industrial. 10.

The subject Lands are located within the Heartland Industrial Area Structure Plan, with the SW¼ 19 in the Transition Zone: Environmental: Policy Area and the SE¼ 24 in the Sandhills Heavy Industrial Policy Area. [ Ibid , at p. 3 ] 11. The area granted under the ROE Orders traverses the northern portion of the Lands, running for the most part parallel to and to the south of a pre-existing right-of-way for a transmission line operated by AltaLink. [ Ibid , at p. 3 ] 12. There are two Transmission Line structures on the SW¼ 19 and three Transmission Line structures on the SE¼ 24. [ Ibid , at p. 3 ] 13.

A valid pattern of dealings based on the evidence presented on behalf of ATCO Electric at the Board hearing in the subject proceeding has been established in respect of the per acre value of the area granted under the ROE Orders payable under section 25(1)(

b) of the Act . On this basis, appropriate compensation for the per acre value of the area granted under the ROE Orders is as follows: • SW¼ 19: $18,000.00/acre; and • SE¼ 24: $18,000.00/acre. [ Ibid , at p. 8 ]

14. A valid pattern of dealings based on the evidence presented on behalf of ATCO Electric at the Board hearing in the subject proceeding has been established in respect of first year general disturbance compensation. On this basis, appropriate compensation for first year general disturbance is as follows: • SW¼ 19: $2,750.00; and • SE¼ 24: $1,750.00. [ Ibid , at p. 14 ] 15. The market value of SW¼ 19 has not been adversely affected (or injuriously affected) by the area granted under the ROE Orders, or the related Transmission Line and structures. [ Ibid , at p. 18 ] 16.

A valid pattern of dealings based on the evidence presented on behalf of ATCO Electric at the Board hearing in the subject proceeding has been established in respect of annual compensation payable under sections 25(1)(

c) and (

d) of the Act based on the number of structures and the use of the land where those structures are located. On this basis, appropriate annual compensation for pasture or uncultivated land is $552.00 per structure and for cultivated land is $1,380.00 per structure.

At these rates, total annual compensation payable for the ROE Orders, commencing on the Effective Dates, is as follows: • SW¼ 19: $1,932.00, based on one structure on cultivated land and one structure on pasture land; and • SE¼ 24: $1,656.00, based on three structures on pasture land. [ Ibid , at p. 19 ] The Parties acknowledge and agree to the facts set out herein as at November 24, 2016. BENNETT JONES LLP Per: Blake Williams Counsel for ATCO Electric Ltd.

ACKROYD LLP Per: Ifeoma Okoye Counsel for Gregory Serink, Bernadette Clifton, and Corey Clifton Appendix B: Surface Rights Act , RSA 2000, c S-24, ss. 25 and 26. Determining compensation 25

(1) The Board, in determining the amount of compensation payable, may consider (

a) the amount the land granted to the operator might be expected to realize if sold in the open market by a willing seller to a willing buyer on the date the right of entry order was made,

(

b) the per acre value, on the date the right of entry order was made, of the titled unit in which the land granted to the operator is located, based on the highest approved use of the land, (

c) the loss of use by the owner or occupant of the area granted to the operator, (

d) the adverse effect of the area granted to the operator on the remaining land of the owner or occupant and the nuisance, inconvenience and noise that might be caused by or arise from or in connection with the operations of the operator, (

e) the damage to the land in the area granted to the operator that might be caused by the operations of the operator, and (

f) any other factors that the Board considers proper under the circumstances.

(2) Where the right of entry order to which the compensation relates is made on or after July 4, 1983, the Board may, in determining the compensation payable, ignore the residual and reversionary value to the owner or occupant of the land granted to the operator.

(3) Where an owner or purchaser of land is required to relocate the owner’s or purchaser’s residence as a result of the making of a right of entry order, the Board shall, on application and after determining the amount of compensation payable, determine the additional amount that, in the opinion of the Board, is necessary in order to enable the owner or purchaser to relocate the owner’s or purchaser’s residence in accommodation that is at least equivalent to the accommodation on the land in respect of which the right of entry order is made.

(4) In fixing the additional amount of compensation under subsection (3), the Board shall include the increase in cost between the date on which the right of entry order was made and the time when the new accommodation can reasonably be obtained.

(5) In making a compensation order, the Board may also determine the amount of compensation payable by the operator (

a) for damage caused by or arising out of the operations of the operator to any land of the owner or occupant other than the area granted to the operator, if those operations were incidental to the operations of that operator on the area granted to the operator under the right of entry order, (

b) for the loss of or damage to livestock or other personal property of the owner or occupant caused by or arising out of the operations of the operator, and (

c) for time spent or expense incurred by the owner or occupant in recovering any of the owner’s or occupant’s livestock that have strayed due to

an act or omission of the operator, and shall determine the person to whom the compensation is payable.

(6) When the Board makes a compensation order, it shall offset the amount paid as part payment of compensation to the Respondent under

section 20 or to the Board under

section 22 against the total compensation it determines to be payable to the Respondent, and (

a) in a case where the money was paid to the Respondent under

section 20 , (

i) if the amount the Board determines to be payable exceeds the amount paid, it shall order the operator to pay the difference to the Respondent, and (ii) if the amount paid exceeds the amount the Board determines to be payable, it shall order the Respondent to pay the difference to the operator, and (

b) in a case where the money was paid to the Board under

section 22 , (

i) if the amount the Board determines to be payable exceeds the amount paid, it shall pay to the Respondent the money paid to the Board and order the operator to pay the difference to the Respondent, and (ii) if the amount paid exceeds the amount the Board determines to be payable, it shall pay to the Respondent the money the Respondent is entitled to and refund the difference to the operator.

(7) In determining the amount of compensation payable, the Board may fix certain amounts payable in the manner and over the periods the Board decides.

(8) Notwithstanding any other Act, if no thoroughfare exists on a road allowance prescribed under the Surveys Act and no disposition of the road allowance has been made to any person, an operator has the right to use the road allowance for the purpose of gaining access to the operator’s drilling or mining operation without payment of compensation to the Crown or to the municipal corporation having the direction, control and management of the road allowance.

(9) The Board may order the operator to pay interest on any or all of the compensation payable on and from the date the right of entry order was made, at the Bank of Canada rate on the date the right of entry order was made. 1983 cS-27.1 s25 Appeal of compensation order 26

(1) The operator or any Respondent named in a compensation order may appeal a compensation order made under this Act to the

Court of Queen’s Bench as to the amount of compensation payable or the person to whom the compensation is payable or both.

(2) In this section, “compensation order” includes (

a) an order of the Board to amend a compensation order in respect of the amount of compensation payable or the person to whom it is payable, and (

b) an order of the Board for the replacement of a compensation order, if the new compensation order results in a change as to the amount of compensation payable or the person to whom the compensation is payable.

(3) The party appealing shall (

a) within 30 days after the date on which that party receives a copy of the compensation order, file a notice of appeal with the clerk of the Court at the judicial centre closest to the place where the land is situated, and (

b) not later than 10 days after the filing of the notice of appeal, serve the Board and the other parties to the compensation order appealed from or their respective solicitors with a copy of the notice of appeal with particulars of the filing endorsed on it.

(4) The Board, on being served with a copy of the notice of appeal, shall forthwith transmit to the clerk of the Court a certified copy of (

a) the application for the right of entry order, (

b) the right of entry order, (

c) the compensation order appealed from, and (

d) the reasons given by the Board for its decision in making the compensation order.

(5) The clerk of the Court, on receiving the certified copies of the documents referred to in subsection (4), shall (

a) set down the appeal for hearing at the next sittings of the Court, and (

b) within 10 days after the appeal has been set down for hearing, notify the Board and the parties or their respective solicitors of the date of the hearing.

(6) An appeal to the Court shall be in the form of a new hearing.

(7) The Court (

a) has the power and jurisdiction of the Board in determining the amount of compensation payable and the person to whom the compensation is payable, (

b) shall determine the amount of compensation payable and the person to whom the compensation is payable, (

c) shall (

i) confirm the order of the Board, or (ii) direct that the compensation order be varied in accordance with its judgment, and (

d) shall make directions as to costs of the appeal in accordance with subsection (9).

(8) Any party may, with the permission of a judge of the Court of Appeal, appeal from the judgment of the Court of Queen’s Bench to the Court of Appeal.

(8.1) On permission to appeal being granted, the appeal must proceed in accordance with the rules and practice of the Court of Appeal, except as to costs.

(9) The costs of an appeal under this section, (

a) when the appeal is by the operator, are payable by the operator on the basis of the lawyer’s charges to the client regardless of the result of the appeal, unless the Court finds special circumstances to justify it to award costs on any other basis, or (

b) when the appeal is by the owner or occupant, (

i) if the appeal is successful, are payable by the operator on the basis of the lawyer’s charges to the client, and (ii) if the appeal is unsuccessful, are payable on the basis of any costs incurred in the proceeding determined under the Alberta Rules of Court to the party, if any, that the Court in its discretion may direct.

(10) A judgment of the Court of Queen’s Bench or the Court of Appeal shall be served on the Board, and the Board without any further proceedings shall vary its order in accordance with the judgment.

RSA 2000 cS-24 s26; 2009 c31 s10 ; 2009 c53 s173 ; 2014 c13 s43