ALPHABOW ENERGY LTD v ALBERTA ENERGY REGULATOR, 2023 ABCA
3.23: Stay of decision
14.48: Stay pending appeal
14.37: Single appeal judges
The Appellant applied to stay a decision by the Alberta Energy Regulator (the “Regulator”) made under the Responsible Energy Development Act, SA 2012, c R-17.3 (the “Decision”). Appeal Justice Wakeling dismissed the Application holding that the Court lacked jurisdiction to stay the Decision because the Appellant never sought permission to Appeal the Decision to the Court of Appeal.
The Appellant argued that the Decision could be stayed pursuant to Rule 14.48. Rule 14.48 provides a Court of Appeal Judge with authority to stay proceedings pending Appeal. However, as Wakeling J.A. noted, Rule 14.48 specifically deals with Applications for stays of decisions made by Judges of the Court of King’s Bench. The Decision was not a decision of a Court of King’s Bench judge, but of the Regulator. Therefore, the Decision could not be stayed under Rule 14.48.
The Appellant also argued that a stay could be granted under Rule 14.37 because it had filed, unsuccessfully, a request with the Regulator for permission to Appeal the Decision (the “Request”). Rule 14.37 authorizes a Court of Appeal Judge to decide Applications incidental to an Appeal. Applications are incidental to an Appeal if they relate to an Appeal but are subordinate in nature. The Appellant never sought permission from a Court of Appeal Judge to stay the Decision. Instead, the Appellant sought permission from a Court of Appeal Judge to Appeal the Request. Wakeling J.A. found that the Decision and the Request were not incidental to each other and held that it would be questionable to read Rule 14.37 “in a manner that expands the ambit of a single appeal judge’s stay jurisdiction under rule 14.48”.
Lastly, the Appellant argued that the Decision could be stayed under Rule 3.23(1), which allows a court to “stay the operation of a decision … sought to be set aside under an originating application for judicial review pending final determination of the originating application”. As noted by Wakeling J.A., Rule 3.23 is available in cases where the Applicant has filed a Judicial Review Application. Since the proceeding before Wakeling J.A. was not an Originating Application for Judicial Review or an Appeal from one, the Decision could not be stayed under Rule 3.23.View CanLII Details