Background

• Issue: ATCO challenges the AUC’s decision to reopen their 2018-2022 Performance-Based Regulation (PBR2) plans under the “reopener” provisions, which act as safeguards against unexpected results in the operation of PBR plans.

Key Legal Context

• Performance-Based Regulation (PBR): An alternative to cost-of-service (COS) regulation aimed at encouraging efficiency. Under PBR, utilities can retain cost savings achieved through operational efficiencies.
• Reopener Provisions: Allow for adjustments to PBR plans when outcomes deviate materially from expectations, potentially impacting utilities or customers.

AUC’s Decision

• The AUC found ATCO’s PBR2 plans failed to demonstrate cost savings linked to efficiency gains. Customers paid higher rates without receiving intended benefits.
• The AUC reopened the plans, citing insufficient evidence from ATCO attributing savings to specific initiatives and the inability to justify returns exceeding approved thresholds for 2021-2022.
• Potential remedies included customer refunds, deemed not retroactive ratemaking at this stage.

Applicants’ Appeal Grounds

1. Unfair Burden of Proof: Argued the AUC imposed unexpected evidentiary requirements, exceeding its statutory authority.
2. Legal Error: Asserted the AUC improperly drew negative inferences under the Canada Evidence Act.
3. Retroactive Ratemaking: Contended proposed customer refunds violated regulatory principles.

Court’s Decision

• Permission to Appeal: Granted on:
  • Whether the AUC’s decision aligns with its legislative framework.
  • Legal correctness of the AUC’s use of evidentiary principles.
  • Procedural fairness.
• Denied Appeal: On claims related to retroactive ratemaking, as no remedies were finalized.

Successful Party

• No Final Decision on Merits Yet.
• No Monetary Award Determined Yet.