The Importance of ATCO Gas and Pipelines: A Response to H. Martin Kay
![handle is hein.journals/alblr45 and id is 519 raw text is: THE IMPORTANCE OF A TCO GAS AND PIPELINES 515
THE IMPORTANCE OF ATCO GAS AND PIPELINES:
A RESPONSE TO H. MARTIN KAY
ALICE WOOLLEY*
I. INTRODUCTION
H. Martin Kay has responded to my case comment' on the Supreme Court of Canada's
decision in A TCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board).2 Mr. Kay
asserts that my comment misstates significant aspects of the rate-setting process3 and, as
a result, overstates the importance of the Court's decision. In particular, he takes issue with
my analysis of the Court's approach to the standard of review, and also with my analysis of
the treatment of disposition of utility assets subsequent to the Court's decision.
In the comments below, I seek to provide additional support for my argument that AGPL
is not a narrow decision and that it makes it impossible for the Alberta Energy and Utilities
Board (AEUB) to properly protect the public interest on any future application by a utility
to dispose of assets currently included in rate base. My central point in this response, which
goes beyond my original case comment, is that the legislature should take the opportunity
presented by Bill 46, Alberta Utilities Commission Act,4 to grant the new Alberta Utilities
Commission (AUC) clearjurisdiction to allocate proceeds in conjunction with an application
for disposition of utility assets. Absent such legislative clarification, the AUC, like its soon
to be predecessor the AEUB, will face significant challenges in its oversight of Alberta
utilities. Through an express legislative grant of authority to condition a disposition of assets
on a proper allocation of proceeds, the new Commission will be able to provide adequate
protection for the public interest.
I1. STANDARD OF REVIEW
Mr. Kay suggests that my criticism of the Court's approach to the standard of review
confuses the Board's acknowledged expertise when acting within the scope of its powers
with the application of that expertise in determining the scope of its authority.5 Mr. Kay
contends that the Board's expertise does not determine the initial question of whether it is
acting within its jurisdiction.6 While this latter point is obviously correct (statutory authority
determines the regulator's jurisdiction), the point of my criticism is that to partition the
Board's expertise, so that it has acknowledged expertise about questions within its
jurisdiction, and no expertise at all about the scope of its authority, is artificial and
undesirable.
Assistant Professor, Faculty of Law, University of Calgary.
Alice Woolley, ' Practical Necessity' or'Highly Sophisticated Opportunism?' Judicial Review and Rate
Regulation After A TCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board) (2006) 44 Alta.
L. Rev. 445.
2 2006 SCC 4, [2006] 1 S.C.R. 140 [AGPL].
H. Martin Kay, Q.C., On A TCO Gas andPipelines: A Reply to Professor Woolley (2007) 45 Alta. L.
Rev. 257 at 258.
4 3rd Sess., 26th Leg., Alberta, 2007 (first reading 14 June 2007).
5 Supra note 3 at 258.
6 Ibid.](ViewImageLocal?handle=hein.journals/alblr45&div=31&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Importance of ATCO Gas and Pipelines: A Response to H. Martin Kay
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most