McCain Foods can seek review of power project refusal   

The Applicants, McCain Foods Ltd. and Coaldale Renewables GP Inc., were partially successful in applying for permission to appeal a decision of the Respondent, Alberta Utilities Commission.

Administrative law – Decisions reviewed – Utilities Commission – Judicial review – Appeals – Legislative compliance – Standard of review – Correctness; Municipalities – Planning and zoning.

McCain Foods Ltd. v. Alberta Utilities Commission, [2025] A.J. No. 940, Alberta Court of Appeal, September 2, 2025, J. Fagnan J.A.

The Applicant, McCain Foods Ltd., owns the McCain Coaldale Processing Plant which produces a variety of McCain potato products.  The Applicant, Coaldale Renewables GP Inc. (“CRGP”), is a wholly owned subsidiary of a developer, owner and operator of wind, solar and hydro energy products. The Applicants were involved in the development of the Coaldale Renewable Energy Project (the “Project”) on property owned by McCain.  McCain was working closely with one of the Respondents, FortisAlberta Inc. (“Fortis”) during the planning of the Project.  

In September 2024, CRGP applied to the Respondent, Alberta Utilities Commission (the “Commission”), for approval to construct the Project.  In November 2024, McCain separately applied to the Commission for approval to connect the Project to the Fortis system to export unused electricity from the Project. 

In December 2024, the Commission communicated that it would initiate a preliminary review of specific legal issues relating to the Self-Supply Exemption in the Electric Utilities Act (the “Act”).  In June 2025, the Commission concluded that all electricity generated by the Project must be sold to the provincial power pool, not McCain, to comply with the Act.  The Commission also held that the Project did not qualify as an exception to Fortis’ exclusive right to distribute electricity in the region.  The Commission dismissed the applications.

The Applicants requested permission to appeal.

The court held that multiple proposed grounds of appeal met the threshold for permission to appeal.

The court granted permission to appeal with respect to two broad issues:

• Did the Commission err in its interpretation of “property” in relation to the self-supply provisions in the Act ?

• Did the Commission err in its interpretation of “electric distribution system” under the Hydro and Electric Energy Act as it relates to self-supply and export arrangements?

This case was digested by Scott J. Marcinkow of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact him directly at [email protected].