PERCY v VALUE CREATION INC, 2018 ABCA 50
14.48: Stay pending appeal
The Plaintiff land owners, the Percys sought Leave to Appeal a Decision of the Alberta Energy Regulator (“AER”) which involved the hearing of an Application (“Hearing”) to amend an approval which was originally granted by the AER in 2005 (“2005 Decision”). The Percys applied for a Stay of the AER’s 2005 Decision, pending their Application for leave to appeal.
The Percys were granted standing at the Hearing, and had requested that the AER either reconsider the 2005 Decision, or adjourn the Hearing and expand its scope to include consideration of the economic impact of the amendments. The AER decided not to expand the scope of the Hearing and declined to adjourn it, but did receive submissions from the parties as to whether to reconsider the 2005 Decision (“Initial Ruling”). The Percys filed for Leave to Appeal the Initial Ruling. Two days before the hearing of the Stay Application, the AER determined that it would not be reconsidering the 2005 Decision (“Subsequent Ruling”). The Percys adjourned their Application for Leave to Appeal the Initial Ruling so that it could be heard with their anticipated Application for Leave to Appeal the Subsequent Ruling, which had not yet been filed. The Percys maintained their Application for a Stay of the Initial Ruling pending the awaiting Applications for leave to appeal.
Justice Greckol expressed doubt as to whether Rule 14.48 provides the Court with the authority to Stay a Decision when an Appeal had not yet been filed. Without determining the issue, Justice Greckol noted that the Percys had not yet provided arguments on the merits of their leave Applications as the Subsequent Ruling by the AER had only just been received. Without being able to present those arguments, the Percys could not demonstrate that they were raising arguable issues on Appeal, and thus could not meet the first branch of the tripartite test. Additionally, Justice Greckol noted that the AER’s Decisions with respect to its own process are entitled to deference. As a result, Justice Greckol found that a Stay was not warranted.
The Application for a Stay pending Appeal was dismissed.View CanLII Details