REMINGTON DEVELOPMENT CORPORATION v ENMAX POWER CORPORATION

The Applicant, ENMAX Power Corporation (“ENMAX”), sought permission to appeal a Chambers Judge’s costs decision arising from Appeals of determinations under the Surface Rights Act, RSA 2000, c S-24 (the “Act”).

The Chambers Judge first determined the merits of the Appeals and awarded Remington Development Corporation (“Remington”) additional compensation under section 25(1)(b) of the Act. ENMAX subsequently obtained permission to appeal that ruling on a question concerning the interpretation of section 25(1)(b) (the “Substantive Appeal”). The Chambers Judge later awarded Remington solicitor-client costs (the “Costs Award”). ENMAX then sought permission to appeal the Costs Award pursuant to Rule 14.5(1)(f) and section 26(8) of the Act.

Justice Feehan confirmed that leave to appeal under the Act should be granted where there is a reasonable prospect of success and that success would have a significant impact on the parties. Feehan J.A. further noted that, where an Appeal raises a question of law or procedure of importance to the Act’s operation, leave should be granted.

The Court held that ENMAX satisfied the test for leave to appeal. Justice Feehan found that the interpretation of section 26(9) of the Act was closely linked to the issues raised in the Substantive Appeal and therefore gave rise to a reasonable prospect of success. The Court further held that the proposed Appeal could significantly affect the parties given the magnitude of the Costs Award and the possibility that the outcome of the Substantive Appeal could affect entitlement to costs. Finally, Feehan J.A. concluded that the proposed Appeal would address questions of statutory interpretation concerning sections 25 and 26 of the Act that were important to the ongoing operation of the legislative scheme.

In the result, Feehan J.A. granted ENMAX permission to appeal the Costs Award and directed that it be heard concurrently with the Substantive Appeal before the same panel.