Solar Krafte Utilities Inc. Capital Power Generation Services Inc. Strathmore Solar Project Costs Award January 6, 2021 - Decision 26107-D01-2021 ...
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Decision 26107-D01-2021 Solar Krafte Utilities Inc. Capital Power Generation Services Inc. Strathmore Solar Project Costs Award January 6, 2021
Alberta Utilities Commission
Decision 26107-D01-2021
Solar Krafte Utilities Inc.
Capital Power Generation Services Inc.
Strathmore Solar Project
Costs Award
Proceeding 26107
January 6, 2021
Published by the:
Alberta Utilities Commission
Eau Claire Tower
1400, 600 Third Avenue S.W.
Calgary, Alberta T2P 0G5
Telephone: 310-4AUC (310-4282 in Alberta)
1-833-511-4AUC (1-833-511-4282 outside Alberta)
Email: info@auc.ab.ca
Website: www.auc.ab.ca
The Commission may, within 30 days of the date of this decision and without notice, correct
typographical, spelling and calculation errors and other similar types of errors and post the
corrected decision on its website.Contents
1 Introduction ........................................................................................................................... 1
2 Submissions on the costs claim application ........................................................................ 1
3 Cyber Investments Ltd. ........................................................................................................ 2
3.1 Commission findings ..................................................................................................... 2
3.2 Total awarded to Cyber Investments Ltd. ...................................................................... 5
4 Order ...................................................................................................................................... 5
Decision 26107-D01-2021 (January 6, 2021) iAlberta Utilities Commission
Calgary, Alberta
Solar Krafte Utilities Inc.
Capital Power Generation Services Inc.
Strathmore Solar Project Decision 26107-D01-2021
Costs Award Proceeding 26107
1 Introduction
1. In this decision, the Alberta Utilities Commission considers an application for intervener
costs by Cyber Investments Ltd. for participation in Proceeding 25346 (the original proceeding).
For the reasons set out below the Commission approves $62,134.02 in costs for Cyber. The
approved amount, less the $25,589.55 awarded as advance funding in the original proceeding, 1
results in a balance payable of $36,544.47.
2. The original proceeding was convened by the Commission to consider an application
from Solar Krafte Utilities Inc. for approval to construct and operate a 40.5-megawatt solar
power plant, designated as the Strathmore Solar Project (Project). Cyber Investments Ltd.
participated in the proceeding and submitted its costs claim within the 30-day timeline permitted
by the Commission’s Rule 009: Rules on Local Intervener Costs. The record for this costs
proceeding closed on December 7, 2020, the date reply submissions were received.
2 Submissions on the costs claim application
3. Solar Krafte expressed several concerns regarding Cyber’s cost claim. 2 It argued that no
legal or expert costs should be awarded to Cyber for its pursuit of: adequacy of consultation, land
use, zoning and development impacts. Solar Krafte also submitted that Cyber’s evidence and
argument on the issues of: noise impacts, solar glare, visual impacts, irrigation site servicing,
stormwater management, reclamation, property devaluation, and the takeover of the project by
Capital Power did not contribute to a better understanding of the issues raised in the proceeding.
While Solar Krafte also questioned Cyber’s evidence on emergency response, it proposed that
costs in the amount of $2,000 be awarded to Cyber with respect to that issue. Finally, Solar
Krafte alleged that counsel for Cyber, Mr. Langen, adopted a strategy of delay in an effort to
derail the project.
4. Cyber rejected the submissions of Solar Krafte in its reply submission and maintained
that it acted reasonably throughout the proceeding. 3 It submitted that Solar Krafte was conflating
a successful outcome on a particular issue with the question of whether an intervener’s
participation contributed to a better understanding of the issues before the Commission. Cyber
noted that the Commission’s reasons were related to the expert evidence it filed, demonstrating
1
Exhibit 25346-X0058, AUC Ruling on adjournment and advance of funds request, June 30, 2020, paragraph 33.
2
Exhibit 26107-X0006, Solar Krafte Comments on Cyber’s Cost Claim (Proceeding 26107), November 30,
2020.
3
Exhibit 26107-X0007, LT AUC - Local Intervener Reply - CYBER Investments Ltd. re Proceeding 25346,
December 7, 2020.
Decision 26107-D01-2021 (January 6, 2021) 1Strathmore Solar Project Solar Krafte Utilities Inc.
Costs Award Capital Power Generation Services Inc.
that its counsel and expert consultants contributed to a better understanding of the issues raised
in the proceeding.
5. Cyber submitted that Solar Krafte’s allegations regarding intentional delay were
unfounded on the record of the proceeding. It acknowledged that it made two adjournment
requests but submitted that they were reasonable, as reflected by the relief granted by the
Commission in each instance. Cyber strongly objected to Solar Krafte’s suggestion that its
counsel, Mr. Langen, acted improperly or engaged in any misconduct in his representation of his
client. Cyber pointed out that the vast majority of the work performed by Stikeman Elliott was
performed by a junior lawyer at a reduced rate. Cyber also observed that the total legal fees were
materially lower than projected in Cyber’s budget and submitted that this was a result of diligent
efforts by counsel to ensure that its costs (and those of its expert consultants) were reasonable.
3 Cyber Investments Ltd.
6. Cyber owns land directly adjacent to the proposed power plant site, and pursued the
following issues in the original proceeding: consultation, development of its lands, property
value, local irrigation pipelines, emergency response, visual impacts, noise impacts, drainage and
reclamation.
7. The Commission is satisfied that Cyber is a local intervener as that phrase is defined in
Section 22 of the Alberta Utilities Commission Act and is eligible to recover costs in accordance
with Sections 21 and 22 of that Act and Rule 009.
8. The following table summarizes Cyber’s costs claim:
Hours
Claimant Fees Disbursements GST Total
Preparation Attendance Argument
Cyber Investments Ltd.
Stikeman Elliott LLP 80.66 0.00 51.73 $38,104.00 $24.10 $1,906.40 $40,034.50
CITYTREND 4 41.00 0.00 0.00 $11,275.00 $0.00 $563.75 $11,838.75
Telford Land & Valuation
30.00 0.00 0.00 $7,875.00 $203.47 $399.92 $8,478.39
Inc.
Wearmouth Canada
36.00 0.00 0.00 $8,370.00 $242.00 $430.60 $9,042.60
(1951) Inc.
RWDI AIR Inc. 18.00 0.00 0.00 $3,900.00 $0.00 $195.00 $4,095.00
Total 205.66 0.00 51.73 $69,524.00 $469.57 $3,495.67 $73,489.24
Less advance funding
($25,589.55) 5
awarded
Net amount claimed $47,899.69
3.1 Commission findings
9. The Commission finds that Cyber generally acted responsibly in the original proceeding
and contributed to the Commission’s understanding of the relevant issues.
4
Romanesky Urban Planning & Management Ltd. o/a CITYTREND.
5
Exhibit 25346-X0058, paragraph 33.
Decision 26107-D01-2021 (January 6, 2021) 2Strathmore Solar Project Solar Krafte Utilities Inc.
Costs Award Capital Power Generation Services Inc.
10. The Commission finds that the costs claimed for Stikeman Elliott LLP are reasonable and
approves those costs in full. The Commission finds that there is no evidence on the record of this
proceeding or the original proceeding to substantiate Solar Krafte’s claim that Cyber’s counsel,
Mr. Langen, engaged in intentional delay or any other misconduct. To the contrary, the
Commission finds that Cyber’s counsel took reasonable steps to represent their client’s interest.
The Commission notes that the proceeding raised complex issues and Cyber, through its counsel,
legitimately pursued those issues. In the Commission’s view the legal costs claimed are
commensurate with the scope of the proceeding and the nature of the issues raised. Accordingly,
the Commission approves Cyber’s claim for fees for Stikeman Elliott in the amount of
$38,104.00, disbursements of $24.10 and GST of $1,906.40 for a total of $40,034.50.
11. However, the Commission is unable to approve the full amount of the costs claimed in
respect of the services performed by CITYTREND, Telford Land & Valuation Inc., Wearmouth
Canada (1951) Inc. and RWDI AIR Inc. for the reasons set out below.
12. The costs claimed for consulting fees for Bryan Romanesky of CITYTREND were
claimed at the rate of $275.00 per hour, 6 which is above the maximum rate allowed in the Scale
of costs. Cyber’s submission has failed to persuade the Commission that a rate above scale is
justified in the circumstances, and the fees claimed for Mr. Romanesky have been accordingly
reduced to $11,070.00. 7
13. The Commission observes that CITYTREND was retained to assist Cyber in pursuing its
concerns relating to development impacts. Although some of CITYTREND’s report was useful
to the Commission, portions of the report and related submissions outlined perceived conflicts
among the land use bylaws, the municipal development plan, and the proposed land use for the
power plant site. Cyber relied on this report to argue that the development permit issued by the
Town of Strathmore was issued erroneously as the proposed land use for the site was not
consistent with the municipal development plan. The Commission finds that the evidence
relating to these perceived conflicts did not assist the Commission in its understanding of the
issues in the original proceeding. Cyber had also been previously cautioned that the Commission
does not have jurisdiction over a municipality’s decision to approve land use bylaws or issue
development permits. In addition, as the record showed, a municipal development plan is a
visionary planning document that does not contain all details that may apply to a specific
property for which a development permit is issued, but instead provides policies to achieve the
growth and development objectives for the population envisioned by the plan. Further, this
particular municipal development plan was stated to be under review. For these reasons, the
Commission applies a 25 per cent reduction to the allowed consulting fees claimed for
CITYTREND, resulting in an award of $8,302.50 8 in fees. Accordingly, the Commission
approves Cyber’s claim for fees for CITYTREND in the amount of $8,302.50 and GST of
$415.13 for a total of $8,717.63.
6
Exhibit 26107-X0001, CYBER Investments Ltd. Cost Claim re Proceeding 25346, November 20, 2020,
paragraph 22.
7
$270.00 per hour * 41 hours = $11,070.00.
8
$11,070.00 * .75 = $8,302.50.
Decision 26107-D01-2021 (January 6, 2021) 3Strathmore Solar Project Solar Krafte Utilities Inc.
Costs Award Capital Power Generation Services Inc.
14. Telford Land & Valuation Inc. (Telford) was retained to assist Cyber in pursuing its
concerns relating to market value impacts from the development of the Project, and to determine
what measures could be implemented on the Project to mitigate any impacts. Telford provided a
report that detailed the predicted impacts of the Project to the value of Cyber’s land. However, as
the Commission noted in its original proceeding decision “the property value evidence provided
by Telford [was] of limited value because it was predicated on an uncertain development
scenario.” 9 As noted in its original decision, Telford proceeded with generous assumptions on
residential land values in the Town and then added assumptions about the highest and best use
for Cyber’s lands changing to agricultural production at a lower dollar value if the Project was
approved. More specifically, the property values estimated by Telford were premised upon
contingencies associated with the development of lands not under Cyber’s control, and
speculative development plans for the land which is under Cyber’s control. The Commission was
not persuaded by Telford’s evidence and finds that this evidence did not contribute to a better
understanding of the issues of this proceeding. For these reasons, the Commission applies a 50
per cent reduction to the consulting fees claimed for Telford, resulting in an award of $3,937.50 10
in fees. The Commission finds the disbursements claimed for Telford in the total amount of
$203.47 to be reasonable. Accordingly, the Commission approves Cyber’s claim for consulting
fees for Telford in the amount of $3,937.50, disbursements of $203.47 and GST of $203.05 for a
total of $4,344.02.
15. Wearmouth was retained to assist Cyber in pursuing its concerns relating to reclamation.
Wearmouth provided a report that detailed the costs to decommission and abandon the Project
site. Cyber relied on this report to advance its position that reclamation funds should be required
to be set aside prior to construction. However, as noted by the Commission in its original
proceeding decision, “[t]here are currently no requirements, or an express authority, for the
Commission to require reclamation deposits from power plant approval holders… In this case
the land is owned by the Town and will be leased to Solar Krafte. As noted above, the terms of
that lease included reclamation conditions that the landowner (the Town) found to be
acceptable.” 11 While the Commission understands that reclamation can be a concern of interested
parties relating to proposed developments, given the above, the Commission did not find this
evidence to contribute to the understanding of the issues of this proceeding. For these reasons,
the Commission applies a 35 per cent reduction to the consulting fees claimed for Wearmouth,
resulting in an award of $5,440.50 12 in fees. The Commission finds the disbursements claimed
for Wearmouth in the total amount of $242.00 to be reasonable. Accordingly, the Commission
approves Cyber’s claim for consulting fees for Wearmouth in the amount of $5,440.50,
disbursements of $242.00 and GST of $284.13 for a total of $5,966.63.
16. The Commission observes that RWDI was retained to assist Cyber in pursuing its
concerns relating to noise and solar glare impacts. In it’s ruling on Cyber’s advance of funds
request, 13 the Commission cautioned Cyber that it would not be persuaded by evidence on noise
and solar impacts to pseudo-receptors. Despite this ruling, Cyber continued to pursue the issue of
9
Decision 25346-D01-2020: Solar Krafte Utilities Inc., Capital Power Generation Services Inc., Strathmore Solar
Project, Proceeding 25346, November 27, 2020, paragraph 73.
10
$7,875.00 * .5 = $3,937.50.
11
Decision 25346-D01-2020, paragraph 105.
12
$8,370.00 * .65 = $5,440.50.
13
Exhibit 25346-X0058, paragraph 12.
Decision 26107-D01-2021 (January 6, 2021) 4Strathmore Solar Project Solar Krafte Utilities Inc.
Costs Award Capital Power Generation Services Inc.
pseudo-receptors in its information requests, including asking Solar Krafte to re-run noise impact
assessments and solar glare hazard analyses with pseudo-receptors. While the Commission
acknowledges that RWDI may have assisted Cyber in preparing its information requests, the
Commission finds that this information did not assist the Commission in its understanding of the
issues related to this proceeding. For these reasons, the Commission applies a 25 per cent
reduction to the consulting fees claimed for RWDI, resulting in an award of $2,925.00 14 in fees.
Accordingly, the Commission approves Cyber’s claim for consulting fees for RWDI in the
amount of $2,925.00 and GST of $146.25 for a total of $3,071.25.
3.2 Total awarded to Cyber Investments Ltd.
17. For the reasons provided above, the Commission approves Cyber’s claim for recovery of
costs in the total amount of $62,134.02. This amount consists of legal fees of $38,104.00,
consulting fees of $20,605.50, disbursements of $469.57 and GST of $2,954.95. The approved
amount, less the $25,589.55 awarded as advance funding in the original proceeding, 15 results in a
balance payable of $36,544.47.
4 Order
18. The Commission approves Application 26107-A001, pursuant to sections 21 and 22 of
the Alberta Utilities Commission Act and Rule 009, and orders as follows:
(1) Solar Krafte Utilities Inc. shall pay intervener costs to Cyber Investments Ltd. in the
total amount of $36,544.47 within 30 days of this Order. Payment shall be made to
Stikeman Elliott LLP on behalf of Cyber Investments Ltd.
Dated on January 6, 2021.
Alberta Utilities Commission
(original signed by)
Carolyn Dahl Rees
Chair
14
$3,900.00 * .75 = $2,925.00.
15
Exhibit 25346-X0058, paragraph 33.
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