Cheyne v Alberta

 

  • Marty Cheyne & Louise O’Brien are seeking leave to appeal the decision of the Alberta Utilities Commission which denied them the right to insist upon a hearing pursuant to s.9(2) of the Alberta Utilities Commission Act.
  • The Applicants also sought an interim injunction to prohibit the Enmax application from proceeding
  • By the time they learned of the Enmax application, the appeal period had lapsed

 

  • On March 30, 2007 Enmax filed an application to the Alberta Utilities Commission to do some work, including build a station at a proposed substation site
  • Cheyne and O’Brien were notified about the proposed development and stated to the Alberta Utilities Commission that they were not happy with the station being built so close to their front window claiming that it impacted their current residence. It was claimed that the station would affect land value and aesthetic value
  • The Alberta Utilities Commission responded requesting more information
  • A lawyer for Cheyne and O’Brien wrote back on April 28, 2008 that the proposed station was close to the house and interfered with the use and enjoyment of their property, there was a fear of noise and health risks, and that the station would alter the value of their property.
  • On June 5, 2008 the Alberta Utilities Commission wrote back stating that their concerns would not be heard because they did not have standing
  • Standing means the right to file a civil lawsuit or be heard by a commission
  • The Alberta Utilities Commission stated the test for determining standing

Standing Test

  • determine whether a person has a legally recognized interest or right,
  • whether the information provided by that person shows that the application before the Commission may directly or adversely affect that right?
  • Did the Commission err in law by applying the wrong test under section 9(2) of the Act?
  • Did the Alberta Utilities Commission, by not holding a hearing in the course of making the decision, act without authority and outside of its jurisdiction?

Analysis

  • The standing test has two components (1) the legal test (2) the factual test
  • The legal test asks whether the claim right or interest being asserted by the person is one known to the law
  • The factual asks whether the Board has information which shows the application before the Board may directly and adversely affect those interest or rights
  • Determining whether the appellants were adversely affected was a major issue
  • The Applicants argued that the burden of proving they were adversely affected to the Alberta Utilities Commission was too high
  • The Applicants argued that the burden should be low, that if they could make out a prima facie case that the project “may” or “could possibly” affect them, that should be sufficient
  • The legislation states that “if it appears to the Commission that its decision or order on an application may directly or adversely affect the rights of a person…”
  • When the Applicants submitted information stating that there will be a reduction in home value, with realtor assessment information
  • The Alberta Utilities Commission responded stating that the materials they provided were insufficient to make a claim that there will be a reduction in their home’s value
  • The court held that the wrong test was applied as the Alberta Utilities Commission required proof that there will be a reduction in value
  • The issue of whether or not they acting outside their authority by refusing to hold a hearing is circular
  • If the wrong test was applied by the Alberta Utilities Commission, then the Applicants will get the relief they wanted
  • If the Alberta Utilities Commission did not apply the wrong test, then the Applicants were not entitled to relief

Conclusion

  • The Court granted the Appellants the right to appeal the Alberta Utilities Commission decision
  • If the appeal of the Alberta Utilities Commission decision is successful, the Court granted them the extended time to file a notice of appeal for the Enmax application

Questions