The Appeal was brought by an operator of a power transmission line that pertained to the interpretation of section 25(1)(d) of the Surface Rights Act. The issues were whether (i) the Alberta Surface Rights Board (the “Board”) had the power under that section to award compensation for nuisance caused by power transmission lines that are not located on lands with a right of entry in favour of the operator, and (ii) whether the King’s Bench Justice hearing the Appeal of the Board’s decision on Costs had jurisdiction to do so.

The Appeal regarding the Justice’s interpretation of the Board’s authority under section 25(1)(d) was allowed, and the matter was set back to the Board for determination. The Justice’s decision on Costs was set aside for lack of jurisdiction.

In finding that the Board’s decision on Costs was not appealable, the Court of Appeal stated that the Justice erred in finding that he had jurisdiction to consider an Appeal of the Board’s original Costs Decision. In part, the confusion stemmed from the 1983 Court of Appeal decision in  Bergman v Francana Oil and Gas Ltd, on which the Appellant relied for the proposition that the Board’s Costs Decisions are not appealable because they do not form part of the compensation order. The Justice incorrectly relied on the same decision for the narrow proposition that there are no stand-alone Appeals from a Costs Decision of the Board.

Importantly, the parties had not asked the Court of Appeal to reconsider that decision pursuant to Rule 14.46. Under this Rule, the Court of Appeal can reconsider its previous Decisions if an Application for Reconsideration is filed and served, and returned prior to the filing and prior to the deadline for the filing of the Applicant’s Factum.

Nonetheless, the Appellant tried to argue that while the Board’s Costs Award had not been sought as a Judicial Review, it could be decided by the Court. After all, under Rule 3.2(6), the Court has discretion to change the procedural form of a case if it was started incorrectly. However, the Court of Appeal noted that the Rule was of no assistance to the Appellant in this case as the Hearing Justice considered the Board’s Costs Decision de novo, as though it was a statutory Appeal rather than Judicial Review. The correct remedy and procedure in this case was to return the Costs issue to the Board for recommendation.