Decision Wind Power Inc. Request to Transfer Power Plant Approval No. U November 26, 2008

Transcription

1 Decision Wind Power Inc. Request to Transfer Power Plant Approval No. U November 26, 2008

2 ALBERTA UTILITIES COMMISSION Decision : Wind Power Inc. Request to Transfer Power Plant Approval No. U Application No November 26, 2008 Published by Alberta Utilities Commission Fifth Avenue Place, 4th Floor, Street SW Calgary, Alberta T2P 3L8 Telephone: (403) Fax: (403) Web site:

3 Contents 1 INTRODUCTION BACKGROUND DISCUSSION OF ISSUES Ability of CRR LP to hold Approval DECISION... 3 AUC Decision (November 26, 2008) i

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5 ALBERTA UTILITIES COMMISSION Calgary Alberta WIND POWER INC. REQUEST TO TRANSFER Decision POWER PLANT APPROVAL NO. U Application No INTRODUCTION Wind Power Inc. (WPI) filed a letter of enquiry with the Alberta Utilities Commission (the Commission) on March 27, 2008, regarding a proposed change of ownership of the Castle Rock Ridge Wind Plant. WPI currently holds Power Plant Approval U , and seeks to transfer the approval from WPI to Castle Rock Ridge Limited Partnership (CRR LP). 2 BACKGROUND The original WPI project (known as the Castle Rock Ridge Wind Plant) was initially approved in early 2002, to be located in an area north of Pincher Station and south of the Old Man River. The original approval was for 56 ENERCON model E66 wind turbines, each rated at 1.8 MW. Since the original approval of the project, WPI has twice applied for, and received, regulatory approvals for modifications to the project. The first application for modification occured in 2005, when WPI applied to install more modern wind turbines. Subsequently, in 2007, WPI applied for a second capacity increase due to new technologies developed by the turbine manufacturer, which resulted in turbine increases from 2 MW to 2.3 MW. Also, a number of turbines were removed from the original project.with these latest modifications, the project would have 50 turbines and a total installed capacity of 115 MW. However, WPI has yet to start construction of the project due to insufficient transmission capacity out of the Pincher Creek area. On March 27, 2008, WPI filed a letter of enquiry with the Commission regarding a proposed change of ownership of the Castle Rock Ridge Wind Plant - for which WPI held Power Plant Approval U from WPI to CRR LP. WPI indicated that upon transfer, CRR LP would have all legal rights and obligations for the project. WPI indicated that it was partnering with CRR LP to build the project. As a result, the project assets are being transferred and assigned to CRR LP and CRR LP is financing, building, and will own the facility. WPI indicated that Castle Rock Ridge Limited Partnership is a limited partnership formed between several wholly-owned subsidiaries of Enel North America, Inc. One of these subsidiaries, Enel Alberta Wind Inc., is the General Partner of the CRR LP. The Commission issued a letter to WPI on April 11, 2008, requesting further information regarding the organizational structure of the participants, financial statements, details of the financing arrangements, information regarding the assumption of liability and confirmation that WPI sought the transfer of the approval to a limited partnership (LP), not a corporation. On July 14, 2008, WPI submitted its responses to the Commission s information requests and confirmed that CRR LP was the intended transferee of Approval U AUC Decision (November 26, 2008) 1

6 Transfer of Power Plant Approval No. U Wind Power Inc. 3 DISCUSSION OF ISSUES 3.1 Ability of CRR LP to hold Approval The application filed by WPI required that the Commission determine whether CRR LP was eligible to hold Approval U Section 11 of the Hydro and Electric Energy Act (HEEA), which sets out the requirements for Commission approval of power plants as defined in that Act, reads as follows: 11 No person shall construct or operate a power plant unless the Commission, by order, has approved the construction and operation of the power plant. [emphasis added] Person is defined in HEEA as: (j) person includes a municipal corporation or other corporation. 1 While the use of the word includes usually implies an expansive interpretation, in this case, the fact that the definition lists types of corporations suggests that a narrower interpretation is intended. 2 Notably, the legislature chose not to explicitly include partnerships, limited or otherwise, in the definition of person in the HEEA. 3 Alberta s Partnership Act 4 (Partnership Act) does not define an LP as a person nor does it explicitly grant LPs the powers of a person. This is in contrast to the Business Corporations Act which specifically provides that a corporation has the rights, powers and privileges of a natural person 5 (i.e. an individual). Notably, subsection 55(3) of the Partnership Act requires that the general partner of an LP (which must be a person), and not the LP, be registered at the land titles registry as owner of any interest of the LP in real property. An LP, like a corporation, is a creature of statute - created by the filing of documentation prescribed by statute. Unlike a corporation however, an LP is generally not considered a separate legal entity; rather, an LP acts through its general partner The Interpretation Act (RSA 2000 Chapter I-8) also has an inclusive definition for person: (nn) person includes a corporation and the heirs, executors, administrators or other legal representatives of a person. Applying the principle of noscitur a sociis: This is a well-known rule of interpretation: a term or expression cannot be interpreted without taking surrounding terms into account. The meaning of a term is revealed by its association with other terms: it is known by its associates (noscitur a sociis). This general principle is most often applied in interpreting terms that are part of a list. (see Québec Inc. v. Quebec (Régie des permis d'alcool) [1996] S.C.J. No. 112 at para 195) Unlike, for example, the definition of person in the Business Corporations Act: (x) person includes an individual, partnership, association, body corporate, trustee, executor, administrator or legal representative. RSA 2000 Ch P-3 Business Corporations Act, RSA 2000 Ch B-9, section 16(1). See Kucor Construction & Developments & Associates v. Canada Life Assurance Co., [1998] O.J. No (Ont. C.A.) at para 26: The concept that neither a general, nor a limited partnership, is a legal entity has been long accepted by Canadian and English law and, no doubt, is why a limited partnership is required by law to have a general partner through which it normally acts: Limited Partnerships Act, ss. 2(2), 8 and AUC Decision (November 26, 2008)

7 Transfer of Power Plant Approval No. U Wind Power Inc. 4 DECISION The HEEA is silent as to whether an LP may be considered a person for the purposes of holding an approval under section 11 of that Act. However, the Commission is satisfied that the legal status of an LP at common law is sufficiently limited to require that a general partner which does have the status of a person - must hold the approval under section 11 of the HEEA on behalf of the LP. The Commission therefore denies the application by Wind Power Inc. to transfer Power Plant Approval U from Wind Power Inc. to Castle Rock Ridge Limited Partnership, but will consider an amended application by WPI, to transfer Power Plant Approval U from Wind Power Inc. to Enel Alberta Wind Inc., in its capacity as general partner of the Castle Rock Ridge Limited Partnership. Dated in Calgary, Alberta on November 26, ALBERTA UTILITIES COMMISSION (original signed by) Carolyn Dahl Rees Vice-Chair AUC Decision (November 26, 2008) 3