The dispute concerns an $8,343,537.15 credit payment (the "Credit Amount") owed by the Alberta Electric System Operator (AESO) due to retroactive adjustments related to transmission line losses.
ENMAX Corporation acquired the Calgary Energy Centre through an assignment agreement with Calpine, which held prior transmission service agreements (STS Agreements) with AESO.
The 2005 Line Loss Rule, used by AESO to calculate charges, was found unlawful by the Alberta Utilities Commission (AUC). Adjustments were required, but Calpine had dissolved, leaving uncertainty about who should receive the credit.
Legal Issue
The main question: Should ENMAX, as Calpine’s assignee, or the Crown receive the Credit Amount?
Court’s Analysis
The AUC previously decided that original STS Agreement holders (i.e., Calpine) should be responsible for adjustments, aligning with the principle of cost causation.
Although ENMAX argued it had acquired the rights via an Assignment Agreement, the court found that only a separate commercial agreement, beyond the assignment terms, could transfer such retroactive credits.
Since no such separate agreement existed between Calpine and ENMAX, the Credit Amount could not be assigned under existing contracts.
Conclusion
Justice Malik ruled that, in the absence of a separate agreement assigning the Credit Amount to ENMAX, it escheats to the Crown under Alberta’s Unclaimed Personal Property and Vested Property Act.
The court applied the doctrine of res judicata (issue estoppel) to dismiss ENMAX’s claims, as the AUC's decision was final and unchallenged on appeal.
Disposition
The AESO is entitled to its costs, subject to further submissions if the parties cannot agree.
