PERCY v VALUE CREATION INC, 2018 ABCA 189
1.5: Rule contravention, non-compliance and irregularities
3.2: How to start an action
14.9: Appeals from several decisions
The Respondents, George and Barbara Percy, had applied for permission to Appeal a Decision of the Alberta Energy Regulator. Following the Respondents filing their Application for Permission to Appeal, the Alberta Energy Regulator declined the Respondents’ Application to have the Decision reconsidered. The Respondents then amended their Application for Permission to Appeal, seeking permission to appeal both the original Decision of the Alberta Energy Regulator and the subsequent Decision of the Alberta Energy Regulator (which was the Decision not to reconsider the original Decision).
The Applicant, Value Creation Inc. cross applied to strike out the amendment to the original Application for Permission to Appeal, arguing that separate Appeals are required for separate Orders, and that permission to Appeal separate Orders cannot be combined. Slatter J.A. referred to Rule 14.9 which provides that in some circumstances, it is more efficient to combine Appeals. Rule 14.9(c) states that a separate Notice of Appeal must be filed for each Decision that is appealed, except where the Appeal is from a Decision that varies, confirms, explains, or provides for the enforcement of a previous Decision, and the previous Decision is also being appealed. Relying on this Rule, Slatter J.A. held that where one proposed Appeal is about a substantive Decision, and the other proposed Appeal is about an Order refusing to consider the first substantive Decision, there is no practical reason for filing and hearing two Appeals. Therefore, the Application to strike the amendment to the Application for Permission to Appeal was dismissed.
The Applicant had also argued that the time to Appeal the second decision of the Alberta Energy Regulator had now expired, and that the amendment to the Application for Permission to Appeal should be struck on that basis. Slatter J.A. held that this argument did not need to be considered given that the Application had already been dismissed. Regardless, the Applicant had not shown that it had suffered any prejudice, as there was a clear intention to appeal within the time limit. Slatter J.A. referred to Rules 1.5 and 3.2(6), and held that if there had been an irregularity, striking out the amendment would not have been a proportionate remedy.
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