ENMAX Power Corporation (“ENMAX”) applied for permission to appeal a Court of King’s Bench decision that varied the Land and Property Rights Tribunal’s compensation award under Section 25 of the Surface Rights Act. The underlying dispute concerned transmission lines crossing part of Remington Development Corporation’s downtown Calgary lands. The Tribunal awarded a lump sum under Section 25(1)(b) tied to the parcels subject to the right of entry orders, plus annual amounts under Sections 25(1)(c) and (d). The Court of King’s Bench took a different approach, awarding a larger lump sum under Section 25(1)(b) based on delayed recovery of market value for the entire assembled lands, and found no additional compensation was payable under Sections 25(1)(c) or (d).

Remington argued that if leave to appeal was granted to ENMAX, the Court should also grant leave for Remington to cross-appeal on Sections 25(1)(c) and (d). The Court refused that request because a cross-appeal under Rule 14.11 is premised on the respondent contending that the decision under appeal “should be varied.” 

The Court held that Remington was not seeking any variance to the decision as it stood, and that Remington’s concerns could be addressed within the Appeal itself on the proper interpretation of Section 25 as a whole. As a result, leave was granted only on the statutory interpretation issue about the scope of Section 25(1)(b), and leave was denied for Remington’s proposed cross-appeal and for ENMAX’s proposed challenges to factual findings.