TransAlta Generation Partnership v Regina, 2021 ABQB 37

Court of Queen’s Bench of Alberta Citation: TransAlta Generation Partnership v Regina, 2021 ABQB 37 Date: 20210115 Docket: 1801 08655 Registry: Calgary Between: TransAlta Generation Partnership, TransAlta Generation (Keephills 3), Capital Power Corporation and Capital Power (G3) LP Applicants (Cross-Respondents) - and - Her Majesty the Queen in the Right of Alberta and the Minister of Municipal Affairs for the Province of Alberta Respondents (Cross-Applicants) _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.C.

Price _______________________________________________________ I. Introduction [ 1 ] This is an application by TransAlta Generation Partnership, TransAlta Generation (Keephills 3), Capital Power Corporation and Capital Power (G3) LP (collectively, the “Applicants”) for judicial review of Ministerial Order No. MGA : 021/17 (the “Ministerial Order”) as it relates to the 2017 Alberta Linear Property Assessment Minister’s Guidelines (the “ 2017 Linear Guidelines ”). [ 2 ] The Applicants are owners of coal-fired electrical generation facilities in the Province of Alberta. These facilities are

assessed for taxation purposes under the Municipal Government Act , RSA 2000, c M-26 (the “ MGA ”) as linear property. [ 3 ] The 2017 Linear Guidelines are enacted by regulation to direct the assessment of linear property, which includes electric generation systems such as those owned and operated by the Applicants. [ 4 ] The Ministerial Order rescinded Ministerial Order No.

MAG:028/16 as of December 31, 2017 and became effective for the 2017 assessment year for taxation in 2018 and subsequent years. [ 5 ] Specifically, the Applicants take issue with certain provisions in the 2017 Linear Guidelines providing that they are not eligible for additional depreciation for ceasing or reducing coal-fired emissions on or before December 31, 2030. [ 6 ] Each of the facilities owned and operated by the Applicants, for which they are the assessed persons, is subject to an “Off- Coal Agreement” pursuant to which they will be compensated millions of dollars on an annual basis between 2017 and 2030 for ceasing coal-powered electric generation.

The Applicants say that their compensation for the premature end of life of their coal-powered electric generation plants is irrelevant to how those properties should be assessed. [ 7 ] The Applicants say that they are being targeted and discriminated against, which treatment is not expressly authorized by the MGA or generally under the regulated property assessment regime. They say that they are not being treated fairly and equitably vis à vis other properties of the same class, as intended under the assessment regime.

The Applicants ask this Court to sever those provisions in the 2017 Linear Guidelines limiting their ability to claim depreciation for loss of life of their facilities. [ 8 ] A preliminary issue arose respecting the evidence before the Court. The Applicants filed affidavits in support of their application. Her Majesty the Queen in Right of Alberta and the Minister of Municipal Affairs for the Province of Alberta (the “Respondents”) have applied to have the affidavits struck from the Court’s record. II.

Statutory Framework and Background Facts [ 9 ] This matter involves regulated property, which includes farmland, machinery and equipment and designated industrial property, including linear property, railway, and major industrial plants: see Matters Relating to Assessment and Taxation Regulation , Alta Reg 220/2004, s. 1 (n) (“ MRAT ”) and Matters Relating to Assessment and Taxation Regulation , 2018, Alta Reg 203/2017, s. 1 (k) (“ MRAT 2018 ”).

See also Guide to Property Assessment and Taxation in Alberta at pages 7-8. [ 10 ] The properties in issue fall into the category of linear property, which includes pipelines to transport petroleum product, electric power systems (generation, transmission, and distribution facilities), telecommunication systems (including cellular telephone systems), cable television systems, railway property and oil and gas wells. [ 11 ] Regulated properties are generally properties that seldom trade in the market place or are difficult to assess because they do not trade as realty alone, they cross municipal boundaries or they are unique in nature. [ 12 ] Since 1995, the Minister of Municipal Affairs (the “Minister”) has passed annual guidelines (the “ Minister’s Guidelines ”) with respect to the preparation of assessments for all regulated property in the Province.

Valuation standards for regulated property are established pursuant to the applicable Minister’s Guidelines , which include the Alberta Farm Land Assessment Minister’s Guidelines , the Alberta Machinery and Equipment Assessment Minister’s Guidelines , the Alberta Linear Property Assessment Minister’s Guidelines and the Alberta Railway Assessment Minister’s Guidelines . [ 13 ] The valuation standard set pursuant to the Minister’s Guidelines for regulated property is not market value.

Rather, it is determined by a formula that is intended to facilitate a predictable, consistent and stable assessment base that is not subject to the “peaks and valleys” of changing market conditions. [ 14 ] On December 19, 2017, the Minister passed the Ministerial Order pursuant to sections 322 and 322.1 of the MGA , establishing the 2017 Linear Guidelines for the 2017 assessment year. In accordance with

section 8 of MRAT , in force at the time with respect to the 2017 assessment year, the assessor designated by the Minister must follow the procedures set out in the 2017 Linear Guidelines when preparing an assessment for linear property. [ 15 ] The specific provisions in the 2017 Linear Guidelines relevant to the application before me are as follows: 1.003 DESCRIPTION OF THE SCHEDULES (

a) Schedule A –provides the process for determining base cost.

Schedule A values are rounded to the nearest $1 and have a minimum base cost of $1. (

b) Schedule B –lists the assessment year modifiers.

Schedule B factors are specified to three significant digits. (

c) Schedule C –provides the process for determining depreciation or lists the depreciation factor allowed by the 2017 Alberta Linear Property Assessment Minister’s Guidelines .

Schedule C factors are specified to three significant digits. The depreciation factors prescribed in

Schedule C are fixed and certain and must be applied as listed in the applicable

Schedule C depreciation table, without adjustment or modification. (

d) Schedule D –provides the process for determining additional depreciation or lists the additional depreciation factor allowed by the 2017 Alberta Linear Property Assessment Minister’s Guidelines .

Schedule D factors are specified to three significant digits. The additional depreciation factor for linear property described in

Schedule D is exhaustive. No additional depreciation is allowed. There will be no recognition or adjustment in

Schedule C or

Schedule D as a result of the cessation or reduction of coalfired emissions on or before December 31, 2030 arising from an Off-Coal Agreement or Provincial or Federal legislation.

2.003 DEPRECIATION (SCHEDULE C AND

SCHEDULE

D) FOR ACCS BEGINNING WITH GEN (

a) The

Schedule C depreciation tables for ACCs beginning with GEN reflect all physical, all functional, all economic and net salvage considerations. The factor within the

Schedule C depreciation tables are fixed and certain, and shall be applied as listed in the applicable

Schedule C depreciation table, without adjustment or modification. (

b) Schedule D depreciation for ACCs beginning with GEN is limited to highly unusual site specific circumstances such as catastrophic physical failure, and is only allowed on a case by case basis when acceptable evidence is documented and provided to the assessor. (

c) The combined effect of

Schedule C and

Schedule D for ACCs beginning with GEN shall not exceed total depreciation of 80%. Accordingly, if a deprecation factor of 0.200 is achieved under

Schedule C, no additional depreciation is allowed under

Schedule D. There will be no recognition or adjustment in

Schedule C or

Schedule D as a result of the cessation or reduction of coal-fired emissions on or before December 31, 2030 arising from an Off-Coal Agreement or Provincial or Federal legislation. [ 16 ] The Applicants take issue specifically with the following wording (the “Impugned Provisions”) that appears in sections 1.003(

d) and 2.003(c): There will be no recognition or adjustment in

Schedule C or

Schedule D as a result of the cessation or reduction of coal-fired emissions on or before December 31, 2030 arising from an Off-Coal Agreement or Provincial or Federal legislation. [ 17 ] The Impugned Provisions refer to an “Off-Coal Agreement”, which is defined in the 2017 Linear Guidelines as “an arrangement of transition payments from the Government of Alberta and owners of coal-fired units that were originally slated to operate beyond 2030 to discontinue using coal as a fuel source by December 31, 2030”. [ 18 ] In short, the Applicants are parties to an “Off-Coal Agreement”.

They have agreed to cease coal-fired emissions from their respective coal-powered electricity generation plants by 2030. In return, they receive annual payments - in the case of the TransAlta Applicants, $39,851,704.60 annually for 14 years and in the case of the Capital Power Applicants, $52,414,828.49 annually for 14 years. [ 19 ] On June 19, 2018, the Applicants filed the within Originating Application for judicial review pursuant to Rule 3.15 of the Alberta Rules of Court . Subsequently, the Applicants narrowed their requested relief to the following: a. A declaration that sections 1.003(

d) and 2.003(

c) of the 2017 Linear Guidelines are illegal, invalid and ultra vires the regulatory powers of the Minister; b. An Order severing the Impugned Provisions from the 2017 Linear Guidelines ; and c. Costs. [ 20 ] Also, on June 19, 2018, the Applicants filed a Notice to Obtain Records of Proceedings in accordance with Rule 3.18 of the Alberta Rules of Court . [ 21 ] On April 9, 2020, a Certified Record of Proceedings was filed by the Respondents (the “Certified Record”).

The Certified Record was certified by Sheila Young, Director, Assessment and Property Tax Policy, Municipal Affairs, as including all records required by Rule 3.19(1) of the Alberta Rules of Court . The only record Ms. Young indicated could not be provided was an Off-Coal Agreement that was subject to a confidentiality agreement. The Applicants did not raise an issue with the exclusion of that record and did not challenge the completeness of the Certified Record. [ 22 ] On June 26, 2020, the Applicants filed their Brief.

In addition, the Applicants filed five affidavits (collectively, the “Affidavits”) in support of their Application: 1) Affidavit of Robert Tutt; 2) Affidavit of Larry Kennedy; 3) Affidavit of Kate Chisholm; 4) Affidavit of Brett Gellner; and 5) Affidavit of Neil McMeckan. [ 23 ] The Respondents object to any reference to the Affidavits and have cross-applied to strike them. III. Issues [ 24 ] The issues in this matter are: i. Whether the Affidavits should be struck; ii. Whether the Impugned Provisions are within the Minister’s authority to pass and were lawfully enacted by the Minister. More specifically,

a) Are the Impugned Provisions ultra vires the Minister’s regulatory powers?

b) Do the Impugned Provisions take into account extraneous considerations ?

c) Do the Impugned Provisions amount to unauthorized discrimination?

d) Were the Impugned Provisions enacted in bad faith?

e) Are the Impugned Provisions irrational, do they defy property assessment and valuation principles or are they otherwise in conflict with the legislative scheme and unreasonable ? iii. Is procedural fairness owed to the Applicants? If so, has there been a breach? iv. Does the doctrine of legitimate expectations apply? If so, what is its effect? IV. Analysis A. Should the Affidavits be Stuck? [ 25 ] Rule 3.22 specifies what evidence may be considered by the Court on judicial review: 3.22 When making a decision about an originating application for judicial review, the Court may consider the following evidence only: (

a) the certified copy of the record of proceedings of the person or body that is the subject of the application, if any; (

b) if questioning was permitted under rule 3.21 [Limit on questioning] , a transcript of that questioning; (

c) anything permitted by any other rule or by an enactment; (

d) any other evidence permitted by the Court. [ 26 ] As noted above, the Respondents filed the Certified Record and the Applicants have not taken issue with it. [ 27 ] The Respondents assert that the rationale for limiting the evidence to be considered by the Court on judicial review is as articulated by Slatter J (as he then was) in Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission) , 2006 ABQB 904 at para 42 : As a general rule ... evidence that was not before the tribunal and that relates to the merits of the decision is not permitted on judicial review. The law is summarized in S.

Blake, Administrative Law in Canada , (4 th ed.), at pg. 198: Only material that was considered by the tribunal in coming to its decision is relevant on judicial review. It is not the role of the court to decide the matter anew. The court simply conducts a review of the tribunal decision. For this reason, the only evidence that is admissible before the court is the record that was before the tribunal. Evidence that was not before the tribunal is not admissible without leave of the court.

If the issue to be decided on the application involves a question of law, or concerns the tribunal’s statutory authority, the court will refuse leave to file additional evidence. Evidence challenging the wisdom of the decision is not admissible. The tribunal’s findings of fact may not be challenged with evidence that was not put before the tribunal. Fresh evidence, discovered since the tribunal made its decision, is not admissible on judicial review ... (footnotes omitted).

Attempting to introduce fresh evidence respecting the merits of the challenged decision on an application for judicial review misapprehends the nature of judicial review. [ 28 ] There are, however, exceptions to this limitation. These were summarized recently by Feth J in Bergman v Innisfree (Village) , 2020 ABQB 661 at para 45 : Supplementary evidence is usually allowed in only limited circumstances:

a) to address standing;

b) to show bias or a reasonable apprehension of bias where the facts in support of the allegation do not appear on the record;

c) to demonstrate a breach of the rules of natural justice not apparent on the record;

d) to reveal the evidence actually placed before the decision maker where the decision maker provided an inadequate or no record of its proceedings. [ 29 ] The Applicants rely on a rather different articulation of the exceptions from Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency , 2012 FCA 22 at para 20 , the Applicant’s paraphrased the exceptions in their brief as follows: While judicial review is commonly based on the record that was before the decision maker there are exceptions as to when affidavit evidence will be allowed on judicial review:

a) to demonstrate a breach of natural justice not apparent from the record;

b) where the decision maker makes no, or an inadequate record;

c) where the affidavits provide background information that will assist the Court in understanding the issues on judicial review; or

d) where the Court may benefit from opinion evidence on technical matters providing context to the judicial review. The reception of affidavit evidence is discretionary and the categories of exception are not closed. [ 30 ] In their brief on this issue, the Applicants argue that the Affidavits provide background and context to their application. They rely on the decision of Millar J in Alberta’s Free Roaming Horses Society v Alberta , 2019 ABQB 714 at paras 25 and 26 : Although the Province is correct that affidavit evidence is usually not admissible on a judicial review, I find that the Applicants’ submissions on why I should use my discretion under rule 3.22(

d) to be persuasive. This is not a typical judicial review case where the Record of Proceedings shows the materials submitted and considered by a tribunal, along with their reasons for decision. The question here is whether the Minister properly exercised his jurisdiction in making the land designation. The Record of Proceedings contains only the decision (the Order) and the briefing note and memorandum. No actual reasons from the Minister exist.

This is similar to one of the exceptions mentioned in Alberta Liquor and Gaming , namely where the decision maker makes no record of, or an inadequate record of, its proceedings. Without the Ticknor Affidavit, the background and context necessary to understand the Application would be absent. It would also be challenging to understand the effect of a declaration without the material explaining the licensing system in place. The material in the Ticknor Affidavit assists the court and is not akin to admitting new evidence on the merits of the decision.

Therefore, for the purpose of providing context to the Application, the Ticknor Affidavit is admissible on this judicial review. [ 31 ] The Applicants also assert that the Affidavits show that they were not consulted and were taken by surprise by the 2017 Linear Guidelines . This, they argue, is relevant to the issues of notice, reasonable expectation and procedural fairness. [ 32 ] The Respondents argue that the Affidavits do not fall within any of the limited exceptions to the general inadmissibility and that they represent an improper attempt to supplement the Certified Record of Proceedings.

In addition, they argue that the Affidavits contain inadmissible arguments, opinions and conclusions. [ 33 ] The Respondents point to the decision of the Court of Appeal in Alberta College of Pharmacists v Sobeys West Inc , 2017 ABCA 306 that the reviewing justice erred in admitting affidavit evidence on an application to determine whether a policy decision was ultra vires .

The Respondents argue in their brief that “the Court of Appeal confirmed that affidavit evidence that attempts to challenge the merits of the decision is not properly admitted in judicial review.” [ 34 ] While I am mindful of the limitation on admissible evidence on judicial review and of the rationale for that limitation, I am prepared to admit some of the Affidavits into evidence for certain limited purposes and subject to my conclusions, set out later in these Reasons, as to the weight to be given to that evidence. [ 35 ] The crux of the affidavits sworn by Kate Chisholm, Robert Tutt and Brett Gellner is that they were surprised at the Minister’s approach to the Off-Coal Agreements in the 2017 Linear Guidelines , having had no notice thereof.

In my view, this is relevant to the possibility of a breach of procedural fairness and, therefore, these affidavits fall within that exception and are admitted. [ 36 ] The affidavit sworn by Neil McMeckan reiterates the Applicants’ surprise at the 2017 Linear Guidelines . It also attaches a draft briefing note obtained by the Applicants through a freedom of information request. As noted above, the Applicants have raised an argument under the doctrine of reasonable expectation.

I find that the briefing note could be relevant to that argument and I am prepared to admit it into evidence, again subject to my conclusions as to appropriate weight. [ 37 ] In his affidavit, Larry Kennedy speaks to the development of the depreciation tables comprising part of the Minister’s Guidelines . He discusses assumptions made in the development of those tables and indicates that they do not take into account regulatory changes regarding greenhouse gas emissions.

He also states that the tables specific to the facilities in question on this application were prepared after his work was completed. [ 38 ] There are two significant problems with Mr. Kennedy’s affidavit. First, I find that it addresses the merits of the tables forming part of the 2017 Linear Guidelines . This is not appropriate. Second, Mr. Kennedy was not involved in the preparation of those particular tables and therefore does not have direct personal knowledge about them.

While I do not doubt the sincerity of his belief that those tables incorporate the same assumptions as those he did work on, he may or may not be correct. Accordingly, I decline to admit Mr. Kennedy’s affidavit into evidence. [ 39 ] In

summary, with respect to the issue of the admissibility of the Affidavits, all but Mr. Kennedy’s affidavit are admitted into evidence. B. Standard of Review [ 40 ] The Respondents note that, historically, the vires of subordinate legislation such as regulations has been reviewed on a correctness standard.

They assert, however, that this was altered by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , along with the rest of the standard of review landscape. [ 41 ] The Supreme Court held at para 23 of Vavilov that the presumptive standard of review is reasonableness: Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decision other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law.

The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.

[ 42 ] In this case, what is at issue is the Minister’s authority to pass regulations, namely the 2017 Linear Guidelines . These comments from the Supreme Court in Vavilov at paras 53, 65 – 66 and 111 are instructive: In our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies.

The application of the correctness standard for such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary: Dunsmuir , at para. 58. ... We would cease to recognize jurisdictional questions as a distinct category attracting correctness review.

The majority in Dunsmuir held that it was “without question” (para. 50) that the correctness standard must be applied in reviewing jurisdictional questions (also referred to as true questions of jurisdiction or vires ). True questions of jurisdiction were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter” ...

Since Dunsmuir , however, majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and “expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law” .... As Gascon J. noted in CHRC , the concept of “jurisdiction” in the administrative law context is inherently “slippery”: para. 38. This is because, in theory, any challenge to an administrative decision can be characterized as “jurisdictional” in the sense that it calls into question whether the decision maker had the authority to act as it did...

Although this Court’s jurisprudence contemplates that only a much narrower class of “truly” jurisdictional questions requires correctness review, it has observed that there are no “clear markers” to distinguish such questions from other questions related to the

interpretation of an administrative decision maker’s enabling statute... Despite differing views on whether it is possible to demarcate a class of “truly” jurisdictional questions, there is general agreement that “it is often difficult to distinguish between exercises of delegated power that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute” ...

This tension is perhaps clearest in cases where the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute... ... It is evident that both statutory and common law will impose constraints on how and what an administrative decision maker can lawfully decide: see Dunsmuir , at paras. 47 and 74. For example, an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an

interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers... Neither can a body instructed by legislation to determine what tax rate is applicable in accordance with an existing tax system ignore that system and base its determination on a “fictitious” system it has arbitrarily created... Where a relationship is governed by private law, it would be unreasonable for a decision maker to ignore that law in adjudicating parties’ rights within that relationship: Dunsmuir , at para. 74.

Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard... [citations omitted]. [ 43 ] In addition, in Innovative Medicines Canada v Canada (Attorney General) , 2020 FC 725 , the Federal Court recently dealt with a question similar to that before me, saying at para 65: In cases such as this where no formal reasons are given, the Court must look to the record as a whole to understand the decision ( Vavilov at para 137 ).

The assessment of reasonableness in the present case must focus on the relevant factual and legal constraints around the Governor in Council’s exercise of her delegated powers ( Vavilov at para 105 ). In a challenge to the vires of regulations, the governing statutory scheme, principles of statutory

interpretation, and other statutory and common law are particularly relevant (see Vavilov at para 106 for a non-exhaustive list of elements that are generally relevant in conducting reasonableness review). [ 44 ] The Respondents cite the recent decision of Loparco J of this Court in Morris v Law Society of Alberta (Trust Safety Committee) , 2020 ABQB 137 , in which she reviews Vavilov and other Supreme Court of Canada jurisprudence respecting judicial review of subordinate legislation.

At para 40, she notes that the Court in Vavilov : ...specifically endorsed the use of reasonableness review standard in cases “where the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute.” [ 45 ] In West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal) , 2018 SCC 22 , one of the cases cited by Loparco J, the majority of the Supreme Court of Canada held as follows at para 9: ...this Court has adopted a flexible standard of reasonableness in situations where the enabling statute grants a large discretion to the subordinate body to craft appropriate regulations... [ 46 ] Based on the foregoing, I am satisfied that reasonableness is the appropriate standard of review in respect of the issues before me, with one exception - the issue of procedural fairness.

On that issue, the standard of review is correctness: Anterra Sunridge Power Centre Ltd v Calgary (City) , 2014 ABQB 223 at para 74 , citing CUPE v Ontario (Minister of Labour) , 2003 SCC 29 at para 100 . C. The Impugned Provisions 1. Are the Impugned Provisions Within the Minister’s Authority and Were they Lawfully Enacted? a. Are the Impugned Provisions Ultra Vires ?

[ 47 ] The Applicants state in their brief that “The starting point for the analysis of the first issue is that all statutory delegates, including the Respondent Minister, are bound by the law. Subordinate legislation must remain within the scope of authority granted in the enabling legislation.” That proposition would seem to be unassailable and the Respondents do not appear to take issue with it. [ 48 ] The Respondents, however, point out that regulations are presumed to be valid.

They point to the Supreme Court of Canada’s comments in Katz Group Canada Inc v Ontario (Health and Long-Term Care) , 2013 SCC 64 at para 25 : Regulations benefit from a presumption of validity (Ruth Sullivan, Sullivan on the Construction of Statutes (5 th ed. 2008), at p. 458).

This presumption has two aspects: it places the burden on challengers to demonstrate the invalidity of regulations, rather than on regulatory bodies to justify them (John Mark Keyes, Executive Legislation (2 nd ed. 2010), at pp. 544-50); and it favours an interpretative approach that reconciles the regulation with its enabling statute so that, where possible , the regulation is construed in a manner which renders it intra vires (Donald J.M. Brown and Jon M.

Evans, Judicial Review of Administrative Action in Canada , vol. 3 (loose-leaf), at 15:3200 and 15:3230). [Emphasis in original.] [ 49 ] The Respondents caution that the scope of review is narrow and does not extend to the merits of regulations, only to their consistency with the enabling statute.

They quote as follows from Brown and Evans (as cited above) at 15-102: ...although judicial intervention can be expected where Regulations are not consistent with the purposes of statutes, or some statutory condition precedent has not been observed, judges have generally approached the review of the legality of orders-in-council and Regulations made by Cabinet and individual ministers in a most deferential manner. [ 50 ] The Respondents note the Supreme Court of Canada’s holding in Katz at para 28 that regulations “must be ‘irrelevant’, ‘extraneous’ or ‘completely unrelated’ to the statutory purpose to be found to be ultra vires on the basis of inconsistency with statutory purpose.” [ 51 ] The Applicants cite para 108 of Vavilov for the proposition that “A discretionary decision must comport with the administrative scheme, statutory

definitions, principles and standards and must comply with the ‘rationale and purview of the statutory scheme’, as well as common law principles.” [ 52 ] The Applicants then assert that the Minister’s purported removal of reference to the Off-Coal Agreements from the depreciation schedules to the 2017 Linear Guidelines does not comport with the statutory scheme or relevant common law principles. They note as follows in their brief: Depreciation is not a defined term in the MGA , MRAT or MRAT 2018. The publication Guide to Property Assessment and Taxation in Alberta defines depreciation as “a loss in value due to any reason”. This is consistent with both common law

definitions of depreciation and previous statutory

definitions of depreciation in Alberta. The former Municipal Taxation Act RS 1980 c. M-31 (“ MTA ”) provided in

section 1 (g): 1 In this Act, (g) “depreciation” means a loss in value attributable to any cause; [ 53 ] The Applicants’ position is that “The crux of the question before the Court is whether in adopting the 2017 Linear Guidelines the Minister can introduce foreign concepts into the determination of depreciation.” However, what the Applicants characterize as the introduction of foreign concepts, the Respondents call a valid policy decision to limit the meaning of depreciation for purposes of the 2017 Linear Guidelines . [ 54 ] In my view, the Applicants’ argument proceeds from the faulty premise that any departure from a market value standard is outside the Minister’s authority.

The approach is clearly at odds with the MGA , which permits the Minister to establish valuation standards for regulated property. That authority to establish valuation standards, in my view, is not limited to setting out the approach to be taken in determining market value. Rather, it allows the Minister to depart from market value entirely. [ 55 ] I agree with the Respondents that, while predecessor regimes relied heavily on the concept of market value, the current MGA regime represents a move away from this approach.

Consequently, the prior statutory provisions and cases decided thereunder are of little assistance to the Applicants. [ 56 ] In the same vein, I find that in setting the 2017 Linear Guidelines , the Minister was not restricted to defining depreciation to its dictionary meaning or to the meaning given to that term under prior legislation. The Respondents note that the Minister already has the ability under

section 2.003(

c) of the 2017 Linear Guidelines to cap depreciation at 80%. Accordingly, it cannot be said that “any” loss in value must be taken into account. [ 57 ] The Minister is empowered under the MGA to set applicable depreciation in a manner consistent with the government’s policy objectives. In doing so, he cannot be said to have rendered the 2017 Linear Guidelines “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose of the MGA such that they would be ultra vires .

I agree with the Respondents that, in removing the effect of the Off-Coal Agreements from the determination of depreciation for purposes of the 2017 Linear Guidelines , the Minister was making a valid policy decision in furtherance of the government’s policy of reducing coal-fired emissions. [ 58 ] Consequently, I conclude that the 2017 Linear Guidelines are not ultra vires . b. Do the Impugned Provisions Take into Account Extraneous Considerations? [ 59 ] The Applicants assert that the Minister’s regulatory authority to produce the Minister’s Guidelines is directed solely towards property assessment.

They argue that the Off-Coal Agreements have nothing to do with property assessment and taxation and that the

compensation they receive under the Off-Coal Agreements for stranded assets is “completely irrelevant to the statutory purpose ofvaluing property in a fair and equitable manner.” They argue that the Impugned Provisions introduce into the assessment regime anelement of arbitrariness that is “devoid of any relationship to cost less depreciation, and fair and equitable linear assessments.” [60] The Applicants also take this position in their brief: Valuation for property assessment purposes is an annual function taking the property as it stands on the statutory condition date, alongwith any known circumstances affecting value as of that date.

It would be no answer, and totally irrelevant and extraneous to a properassessment, to advise an owner that because they had received a payment for a loss of property under one scheme, the property has notsuffered a loss in value for assessment purposes. A drastic limiting of life is reflective of a loss in value, as must be the annualassessment. [61] The Respondents argue that the issue of any loss of value to the Applicants’ facilities as a result of the Off-Coal Agreementsis not before the Court; neither is there any evidence before the Court in respect thereof.

Moreover, the Respondents argue that “loss ofvalue” is a market value concept that is not relevant to the linear property assessment regime. [62] The Applicants’ argument here appears to me to be very similar to that set out above. Effectively what the Applicants aresaying is that the Off-Coal Agreements are an extraneous consideration and that taking them into account in establishing the 2017 LinearGuidelines was outside the Minister’s power. [63] I do not agree.

I find that the Minister had the authority, under the powers given to him under the MGA, to make the policydecision that the Off-Coal Agreements were relevant to the determination of depreciation for purposes of the 2017 Linear Guidelines. [64] Therefore, the Impugned Provisions do not take into account extraneous considerations and the Applicants’ argument in thisregard fails. c.

Do the Impugned Provisions Amount to Unauthorized Discrimination? [65] The Applicants assert that it is a fundamental principle of administrative law that subordinate legislation cannot discriminateunless authorized to do so by the enabling legislation: see Kitikmeot Corp v Cambridge Bay, 2007 NuCA 2 at para 31 and Shell CanadaProducts Ltd v Vancouver (City), (SCC), [1994] 1 SCR 231, at paras 57-60. They further assert that this principleapplies irrespective of whether the subordinate legislation can be said to be reasonable. [66] The Applicants argue that the Minister’s power under

section 322 of the MGA is limited to enacting regulations that areconsistent with the MGA and that are for the purposes of carrying out the intent of the MGA.

Their position is that this does not includethe power to create subclasses of electrical generation facilities. [67] The Applicants argue that, as operators of coal-fired electrical generation facilities, they have been unjustly singled out andhave been deprived of the right to claim depreciation that applies to other such facilities and other industrial properties generally. [68] The Respondents assert that, to establish discrimination, the Applicants must show not only that the 2017 Linear Guidelinesgive rise to a distinction, but that the distinction is not authorized by the MGA. [69] The Respondents contend, first, that the 2017 Linear Guidelines do not give rise to any substantive distinction.

Their positionis that the Applicants have not been deprived of a form of depreciation that is available for other linear properties. They base thisargument on the assertion that the depreciation factors in Schedules C and D are exhaustive and that additional depreciation underSchedule D is limited to highly unusual circumstances such as catastrophic failure.

Since the Off-Coal Agreements do not give rise toanything akin to catastrophic failure, the Impugned Provisions do not remove a depreciation factor to which the Applicants otherwisewould have been entitled. [70] Second, the Respondents argue that, even if the Impugned Provisions create a distinction, it is permitted under the MGA andtherefore does not constitute discrimination.

They argue that the Minister is given the power under the MGA to “establish and implementan entire assessment regime.” This, they contend, necessarily includes the authority to distinguish between properties based on uniqueindividual characteristics. The Off-Coal Agreements, in their submission, are such a characteristic. [71] I note that both sides cite the Supreme Court of Canada’s comments in Katz at para 47: The “discrimination” or unauthorized distinctions argument is similarly without a legal foundation.

Regulatory distinctions must beauthorised by statute, either expressly or by necessary implication (Forget c. Quebec (Procureur general), (SCC),[1988] 2 S.C.R. 90 (S.C.C.), at pp. 106-7). The applicable legislation in this case expressly authorises the making of distinctions betweendifferent drug manufacturers. Section 14(1)(

a) of the Drug Interchangeability and Dispensing Fee Act expressly states that theLieutenant Governor in Council may make regulations “prescribing conditions to be met by products or by manufacturers of products inorder to be designated as interchangeable with other products.” Prescribing conditions to be met by drug manufacturers necessarilycreates classes of manufacturers who do or do not meet those conditions, and, consequently, to whom the regulations apply differently. [72] I find that the 2017 Linear Guidelines do not deprive the Applicants of a form of depreciation to which they previously wereentitled.

Nor do the 2017 Linear Guidelines deprive the Applicants of a form of depreciation applicable to other forms of linear property.The Impugned Provisions are not discriminatory in that they do not establish any substantive distinction, certainly not a distinction thatadvantages others over the Applicants. [73] Furthermore, even if I had found that the Impugned Provisions created a distinction, I am satisfied that the creation of suchdistinctions is within the Minister’s purview.

Taking into account the reasoning in Katz, I agree with the Respondents that the creationand implementation of an assessment regime necessarily includes drawing distinctions among various types of properties. Accordingly,in enacting the Impugned Provisions, the Minister was acting within his authority under the MGA.

d. Were the Impugned Provisions Enacted in Bad Faith? [74] In respect of this argument, the Applicants cite cases dealing with decisions by municipal councils.

They assert that suchcouncils may not act for improper purposes and that a municipal action taken for purposes not covered by the enabling legislation isvoid. [75] The Respondents do not appear to take much issue with this, though they put the matter rather more starkly, stating in theirbrief that bad faith includes acts “so markedly inconsistent with the relevant legislative context that a court cannot reasonably concludethat they were performed in good faith.” However, they contend that regulations will be struck down for bad faith only in egregiouscases. [76] Both sides agree that bad faith does not require intent to harm. [77] The Applicants assert that they were not advised that their rights to fair taxation would be impacted by the Off-CoalAgreements and they believed that there would be continuing consultation about their concerns.

The primary thrust of their argument isthat the Assessment Services Branch led them to believe that further depreciation could be claimed while telling the Minister that anyloss had been provided for in the Off-Coal Agreements. [78] The Respondents argue that the Applicants are conflating issues of bad faith and procedural fairness.

Their position is thatpolicy decisions made without consultation do not amount to bad faith because there is no right to procedural fairness in respect of suchdecisions. [79] Moreover, the Respondents assert there is no evidence that the Minister enacted the Impugned Provisions for an improper orunauthorized purpose. They argue that even if bad faith could be established on the part of the Assessment Services Branch staff, thatbad faith could not be attributed to the Minister.

They cite this passage from 893472 Ontario Ltd v Whitchurch-Stouffville (Town)(1991), 7 MPLR (2d) 296 (Ont Gen Div) at para 28: The only allegation of bad faith is against the staff of the town. Unlike Winton, supra, and many other cases, there is no allegation ofratepayer pressure on the council, or bad faith on the part of the council. ... There is no record of exactly what he or others said to thecouncil, but the council passed the by-law. It is presumed valid, lacking bad faith.

I find none on the part of council, even if there hadbeen bad faith on the part of some members of the staff... [80] The Respondents go on to assert that bad faith must be attributable to the decision maker, citing 2326169 Ontario Inc vToronto (City), 2016 ONSC 6221, aff’d 2017 ONCA 484 at para 54. There, the trial judge stated, inter alia: Moreover, it must be bad faith on the part of the Council itself, which was the decision-maker. As Aston J. of this Court pointed out in Municipal Parking Corp v.

City of Toronto (2009), (ON SC), 314 DLR (4th) 642 (ONSC), even if staff did provideinformation that was misleading or incorrect there must still be evidence of bad faith. [81] I agree with the Respondents that the questions of continuing consultation and of the role of Assessment Services Branch staffpertain more to the question of procedural fairness addressed later in these Reasons. At this point, I find that there is no evidence that theMinister himself acted in bad faith or for a purpose not authorized by the MGA. [82] Accordingly, I find that the Impugned Provisions were not enacted in bad faith. e.

Are the Impugned Provisions Irrational, do they Defy Property Assessment and Valuation Principles or Are they Otherwisein Conflict with the Legislative Scheme and Unreasonable? [83] Finally, the Applicants cite cases in support of the proposition that, in the municipal context, a bylaw is “unreasonable” whereit can be shown to be unfairly discriminatory, made in bad faith, confiscatory or prohibitive.

See Falardeau v Hinton (Town), (AB KB), [1983] 50 AR 120 at paras 21-23, Wahl v Municipal Corporation of the City of Medicine Hat, (SCC), [1979] 2 SCR 12 and Hlushak v Fort McMurray, 1982 ABCA 140 , [1982] 37 AR 149 at para 16. I addresseddiscrimination and bad faith above. [84] The Applicants also cite Waneta Expansion Limited Partnership v British Columbia (Assessor of Area #21 – Nelson/Trail),2016 BCSC 2378 at paras 61, 70-71 and 79. In that case, an assessment method was found to be unreasonable when it yielded anassessed value equal to 438% of the actual property value.

The Court held that the effect of the regulation giving rise to this assessmentwas “aberrant and overwhelming”. The Applicants assert that the same can be said here where the Impugned Provisions forbidconsideration of a significant “effective aging” of the facilities in question. [85] In addition, the Applicants point out that the Court in Falardeau held that an amount of tax is unreasonable when it becomesprohibitive or confiscatory.

They assert that the same is true of an assessment methodology that does not take into account a significantcurtailment in the use of a property. [86] Next, the Applicants cite cases in which a tax or fee was found to be prohibitive when it was so large that its true purpose wasnot to raise revenue, but to destroy a particular business. See Reference re:

An Act respecting the Taxation of Banks (UK JCPC), [1939] AC 117 at paras 20-21, Texada Mines Ltd v Attorney-General of British Columbia, (SCC), [1960]SCR 713 and Re McCormick, (ON SC), [1948] 3 DLR 70 at para 9. The Applicants argue as follows in their brief: While the above cases deal with taxation, they also stand for the proposition that the Courts have looked to the consequences on ataxpayer in determining the vires of a decision. Where the effect is prohibitive that signals an excess of authority has occurred. [87] The difficulty I have with this argument is that it requires this Court to assess whether the effect of the Impugned Provisions is

reasonable. I am not satisfied that I have either the evidence or the jurisdiction to do so. I have found that the enactment of the ImpugnedProvisions was an intra vires legislative decision by the Minister. Therefore, in the absence of demonstrated procedural fairness, theCourt should not interfere. In this, I take guidance from the comments of the trial judge in 2326169 Ontario Inc at para 55: ... It is no part of this Court’s function to overturn the will of elected officials by, in effect, second-guessing their policy decisions. 2. Is Procedural Fairness Owed to the Applicants?

If So, Was There a Breach? [88] There is no dispute that a public authority that makes an administrative decision which affects the rights, privileges andinterests of an individual has a duty to act fairly: see Cardinal v Director of Kent Institution (SCC), [1985] 2 SCR 643at 653. [89] By contrast, the Applicants acknowledge that no duty of procedural fairness is owed in respect of a legislative decision: see,inter alia, Inuit Tapirisat of Canada v Canada (Attorney General), (SCC), [1980] 2 SCR 735. [90] The salient question, then, is whether the Minister’s decision to enact the Impugned Provisions was legislative oradministrative in nature. [91] The Applicants cite Potter v Halifax Regional School Board, 2002 NSCA 88 at para 39 for the following discussion of thedistinction: As set out in Knight (supra), legislative decisions are to be distinguished from acts of a more administrative and specific nature.

I have found the following passage from S.A. De Smith’s text, Judicial Review of Administrative Action, [3rd ed.], 1973 London: Stevens at p.60 on the distinction between administrative and legislative acts helpful for my analysis: The distinction between legislative and administrative acts is usually expressed as being a distinction between the general and theparticular.

A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; anadministrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and theapplication of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice. [92] The Applicants argue that promulgating the Impugned Provisions was, in substance, an administrative decision.

They say thatthey are the only parties affected by the Off-Coal Agreements and therefore that the Impugned Provisions are directed specifically atthem. [93] The Applicants cite Keefe v Clifton Corporation, 2005 ABCA 144, in which the Court of Appeal set out at para 15 the factorsto be considered in determining the content of procedural fairness, as articulated by the Supreme Court of Canada in Baker v Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817: (1) the nature of the decision and the decision-making process; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body. [94] The difficulty with this is that these factors are intended to delineate the content or scope of procedural fairness, whichpresupposes that there is a duty to provide procedural fairness at all.

Therefore, I do not think these factors provide a useful analyticalframework in respect of a legislative decision. The Federal Court addressed this in Canadian Union of Public Employees v Canada(Attorney General), 2018 FC 518 at para 176: The Baker factors determine the content of a duty of fairness. However, in order to apply the Baker factors, a duty of procedural fairnessmust first be found to exist (Mavi).

As noted in Apotex, at para 104, “it is settled law in Canada that the duty of fairness does not apply tothe exercise of powers of a legislative nature, which would include the Regulations impugned in this case.” [95] I return to the question of whether in this case the Minister’s decision to promulgate the Impugned Provisions as part of the2017 Linear Guidelines was one to which a duty of procedural fairness applies. [96] The Respondents cite this passage from the Supreme Court of Canada in Martineau v Matsqui Institution (No 2), (SCC), [1980] 1 SCR 602 at 628: The authorities, in my view, support the following conclusion ...

A purely ministerial decision, on broad grounds of public policy, willtypically afford the individual no procedural protection, and any attack upon such decision will have to be founded upon abuse ofdiscretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. [97] The Respondents assert as follows in their brief: The 2017 Linear Guidelines are a policy-based decision by the Minister respecting the preparation of assessments for purposes ofdistributing a tax burden across the Province.

Such a decision is a critical component of the legislative and governance role to be fulfilledby the Province. It is inherently legislative in nature. ...

The fact that one aspect of the 2017 Linear Guidelines addresses a narrow and unique issue, or allegedly may have an impact on a smallgroup, should not change the nature of the act from legislative to administrative. [98] The Respondents then quote from Manitoba Metis Federation Inc v Manitoba, 2020 MBQB 49 at para 136: In Canada, courts have repeatedly held that interested persons hold no procedural rights in relation to Cabinet policy decisions apart fromstatutorily or constitutionally prescribed procedural requirements.

This consistent approach has been taken irrespective of the fact that itis obvious that Cabinet policy decisions can have a sometimes profound impact on the rights, privileges and interests of individuals andcommunities. ... [99] I note that the Court in United Assn of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the UnitedStates and Canada, Local 170 v British Columbia (Ministry of Labour and Citizens’ Services), 2007 BCSC 1518 said this at para 38: In conducting the analysis to determine whether procedural fairness applies, the court looks at whether the decision arises from a powerthat the legislature has reserved to the executive branch in order that it can respond to social, economic and political concerns of themoment. [100] In my view, the Minister’s authority to promulgate the Minister’s Guidelines is just such a power. [101] The Applicants relied heavily on Tesla Motors Canada ULC v Ontario (Ministry of Transportation), 2018 ONSC 5062 andsaid in their oral submissions that that case was on “all fours” with theirs. [102] In Tesla, Tesla Motors Canada ULC brought an application to strike down the Ontario government’s decision to exclude it andits customers from a government program that extended a government subsidy for electric car buyers who bought their cars before July11, 2018.

Tesla Motors received a customized letter from the Ontario government indicating that it was excluded from the programsubsidy because it was not a franchised business. This had the effect of including all dealerships in Ontario except Tesla Motors. TheOntario Superior Court of Justice found that the Ontario government had “changed its role from policy-setting at a high level ofabstraction to executive program administration”: see Tesla at para 40. The Ontario government’s decision to exclude Tesla Motors wasan administrative, not legislative, decision.

The Court found that the Ontario government’s decision to exclude Tesla Motors was“egregious” and stated at para 64: In conclusion, the decision to exclude Tesla by limiting the transition program to only franchised dealerships is arbitrary and unrelated tothe purposes of the statutory or regulatory discretion being exercised.

In my view, it is egregious, as that term was used by Dickson J.above, because, not only was it made for an improper purpose, but because the Minister singled out Tesla for reprobation and harmwithout provided Tesla any opportunity to be heard or any fair process whatsoever. [103] I agree with the Respondents that Tesla is distinguishable and is not applicable in this case. The 2017 Linear Guidelines and,more particularly, the Impugned Provisions, arose from a high-level policy decision by the Legislature to reduce greenhouse gasemissions by moving away from coal-fired electrical generation.

Therefore, I find that in enacting the Impugned Provisions, the Ministerwas acting legislatively and there is no duty of procedural fairness. 3. Does the Doctrine on Legitimate Expectations Apply and, If So, what is its Effect? [104] The Applicants argue that a duty of procedural fairness can attach to a legislative decision where the statutory delegate hasundertaken consultation with an affected party.

They point to the briefing note attached to the McMeckan Affidavit in support of theirargument that they had a legitimate expectation that there would be ongoing consultation regarding their concerns and that the loss of liferesulting from the Off-Coal Agreements would be reflected in their linear assessments. [105] The Respondents note the following statement from the Supreme Court of Canada in Mavi v Canada (Attorney General), 2011SCC 30 at para 68: Where a government official makes representations within the scope of his or her authority to an individual about an administrativeprocess that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguousand unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict withthe decision maker’s statutory duty... [106] The Respondents’ position is that the Applicants’ evidence points only to a general understanding on their part as to how theirlinear assessments would be conducted.

The Respondents assert that the Applicants have provided no evidence of a “clear, unambiguousand unqualified” representation that could give rise to a legitimate expectation. [107] I agree.

While I admitted most of the Affidavits for the purpose of exploring the effect, if any, of the Applicants’understandings, I find that they have not established a representation of the kind that could possibly bind the Minister. [108] Furthermore, I note that the Court in CUPE discussed the application of legitimate expectations as follows at paras 56, 84 and157: CUPE relies on the reasons of Justice Evans [in Apotex v Canada (Attorney General), (FCA), [2000] 4 FC 264],where he held that the doctrine of legitimate expectations could be invoked to create certain procedural obligations in the making ofregulations.

Justice Evans suggested that if a Minister acting in the scope of his or her authority makes a “specific assurance of priorconsultation” to a party with respect to a contemplated regulation, the passage of that regulation without the promised consultation mayconstitute a breach of that party’s legitimate expectations, and therefore a breach of procedural fairness. ...

The Court [in Association des Pilotes de Lignes Internationales v Urbino, 2004 FC 1387] reviewed the relevant jurisprudence andconcluded, at para 23, that Apotex had not changed the law with respect to the doctrine of legitimate expectations to the regulation

making power – i.e., it does not apply. The Court noted the serious reservations expressed by Justices Decary and Sexton regardingJustice Evans’ obiter comments (at paras 20-22). ... Apotex remains the prevailing law on the issue of legitimate expectations and procedural fairness in the regulation-making context.There is no duty of procedural fairness owed, nor is the doctrine of legitimate expectations – whether viewed as a stand-alone doctrine ofan element of the duty of procedural fairness – applicable in the regulation-making context.

The legislative process, including delegatedlegislation, is exempt from the requirements of procedural fairness.

Even Justice Evans recognized that regulations were part of thelegislative process (contrary to CUPE’s submissions that these are executive acts). [109] Consequently, I am not satisfied that the doctrine of legitimate expectations would be of assistance to the Applicants, even ifthere were sufficient evidence. [110] Finally, the Applicants note that, given the very small number of parties affected by the Impugned Provisions, consultationwould not have been onerous. [111] The Respondents’ answer is that if the only defect in the Impugned Provisions was a breach of procedural fairness, “theMinister could simply re-enact the same Guidelines after consultation with the Applicants.” [112] I am reluctant to endorse such a cavalier attitude toward consultation.

However, in light of my finding that there was no duty ofprocedural fairness, I need not address this argument. [113] While I appreciate that the Applicants feel aggrieved, I note these comments as quoted by the British Columbia Court of Appealin Gajic v British Columbia (1996), (BC CA), 19 BCLR (3d) 169 at para 39: Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting thatlegislation; and yet they have no remedy ...

I do not know of any implied right to be consulted or make objections ... or any principleupon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation andconsideration has been given. V. Conclusion [114] In the result, I find that the 2017 Linear Guidelines, including the Impugned Provisions, were within the Minister’s authorityand were lawfully enacted. [115] Costs are payable to the Respondents by the Applicants. If the parties cannot agree on the amount, they may return to mewithin 30 days of the date of these Reasons.

Heard on the 1st day of September, 2020. Dated at the City of Calgary, Alberta this 15th day of January, 2021. J.C. Price J.C.Q.B.A. Appearances: Gilbert J. Ludwig, Q.C. Wilson Laycraft for the Applicants (Cross-Respondents) Alvin Kosak, Greg Plester, and Rebecca Kos

Brownlee LLP for the Respondents (Cross-Applicants)