Sabo v AltaLink | Feb 23, 2022

Court of Queen’s Bench of Alberta

Citation: Sabo v AltaLink, 2022 ABQB 156

Date: 20220223

Dockets: 1903 19219, 2010 00673, 1910 01080, 2010 00676

Registry: Edmonton, Red Deer

Between:

Docket: 1903 19219

Registry: Edmonton

Dean Sabo and Teresa Sabo

Appellants

- and -

AltaLink Management Ltd.

Respondent

And Between

Docket: 2010 00673

Registry: Red Deer

Kenneth Allan Wagers and Jill Ann Wagers

Appellants

-and-

AltaLink Management Ltd and the Alberta Surface Rights Board

Respondents

And Between

Docket:1910 01080

Registry: Red Deer

Robert John Garrison, Penny Louise Garrison,

Darrell W. Edgar and Christie L. Edgar

Appellants

-and-

AltaLink Management Ltd. and

The Alberta Surface Rights Board

Respondents

And Between

Docket:2010 00676

Registry: Red Deer

Timothy Earl Jackson, Dianna Lynn Melnyk,

Janice Lee Teiniranta, Brent Jackson,

Sandra Patricia Jackson and Mark Andrew Jackson

Appellants

-and-

AltaLink Management Ltd. and

The Alberta Surface Rights Board

Respondents

Page: 3

Corrected judgment: A corrigendum was issued on May 3, 2022; the corrections

have been made to the text and the corrigendum is appended to this judgment.

_______________________________________________________

Reasons for Decision

of the

Honourable Mr. Justice John T. Henderson

_______________________________________________________

1. OVERVIEW

Electrical power transmission lines operate for the benefit of all electricity consumers in

[1]

Alberta. Unfortunately, the presence of electrical transmission lines may have adverse impacts

on the lands which are subject to right of entry orders. In some, but not all cases, the negative

impacts can include a decline in property values. This appeal deals with the proper interpretation

of the “injurious affection” provisions of the Surface Rights Act, RSA c S-24 (the “Act”).

[2]

The Appellants are landowners who appeal four separate decisions of the SRB. Those

decisions are: AltaLink Management Ltd. v Sabo, 2019 ABSRB 571, AltaLink Management

Ltd. v Garrison, 2019 ARSRB 572, AltaLink Management Ltd. v Wagers, 2020 ABSRB 477

and AltaLink Management Ltd. v Jackson et al, 2020 ABSRB 533. The Appellants argue that,

in each case, the SRB failed to properly interpret the legislation and failed to order the

Respondent AltaLink Management Ltd. (“AltaLink”) to pay proper compensation to the

Appellants for the negative effects that have arisen from the construction and operation of power

transmission lines immediately adjacent to their lands.

[3]

In approximately 2016 and 2017 AltaLink began construction of two 138kV double

circuit transmission lines. The first project involved an upgrade to a substation in the Cooking

Lake area that included transmission lines and structures being installed in the road allowance on

the south side of Highway 14 east of Edmonton (the “Cooking Lake Project”). The second

project involved transmission lines and structures being installed in road allowances near

Innisfail, Alberta connecting the Hazelwood 287S substation with the Innisfail 214S substation

(the “Hazelwood Project”).

[4]

To proceed with the two projects, AltaLink obtained from the Alberta Utilities

Commission the necessary Transmission Line Permits and Licences. Thereafter, AltaLink

attempted to obtain the consent of the Appellants to enter upon a portion of their lands to

facilitate construction and operation of the lines. When that was unsuccessful, AltaLink applied

to the SRB for Right of Entry Orders (ROE Orders) pursuant to s 15(6) of the Act. ROE Orders

were obtained between February and December 2016 in relation to each of the 8 parcels of land

that are the subject of these appeals. By the terms of the ROE Orders, AltaLink was granted a

right of way in relation to small portions of each of the parcels. The right of way in each case

was 10 meters in width along the length of the property line adjacent to the power transmission

Page: 4

line. The land taken from each of the 8 parcels for the right of way was between 0.3 acres and

1.98 acres.

[5]

The structures utilized in the construction of both the Cooking Lake Project and the

Hazelwood Project consisted of monopole steel towers with a height of approximately 30 metres

(although the range of heights was between 20 meters and 34 metres). The towers are tapered,

being wider at the bottom than at the top. Each of the monopole towers has 3 cross-arms near

the top of the tower. The span of each cross-arm is approximately 5 to 6 metres and therefore

each cross-arm protrudes from the structure by approximately 2 ½ to 3 metres. Six high voltage

transmission lines are attached to the three cross-arms on each tower. The steel towers and the

cross-arms are grey in colour.

[6]

All the steel towers in issue were constructed within the road allowances. With one

minor exception that I will deal with separately, none of the steel towers encroached upon either

the right of way or upon the Appellants’ lands. However, in all cases some portion of the cross-

arms that form part of the towers protruded so as to overhang the air space above the Appellants’

lands by approximately 1.5 to 2 metres.

[7]

The lands owned by the Appellants, Dean Sabo and Teresa Sabo (the “Sabos”), are on the

south side of Highway 14 in Strathcona County east of Edmonton and are immediately adjacent

to the road allowance. The power transmission line that forms part of the Cooking Lake Project

is constructed within the road allowance, but in very close proximity to the Sabo’s property line.

[8]

The Hazelwood Project was constructed near the town of Innisfail, Alberta, in Red Deer

County, immediately adjacent to the lands owned by the remaining Appellants. Three segments

of the line are particularly relevant to these appeals:

(i) The first relevant segment of the Hazelwood Project was constructed to the west

of Innisfail in the road allowances along the east side of Range Road 10, north of

Township Road 354. The lands owned by Darrell Edgar and Christie Edgar (the

“Edgars”) and the lands owned by Robert Garrison and Louise Garrison (the

“Garrisons”) are situated immediately to the east of the road allowance along

Range Road 10. The power transmission lines were installed on monopole steel

towers situated in the road allowance immediately adjacent to the property lines

of the Edgars and the Garrisons, who are neighbours. The new transmission lines

replaced a pre-existing 138kV high voltage single circuit power transmission line

with wooden poles and cross-arms. These pre-existing poles were approximately

20 meters tall and had been in place since approximately 1951, long before the

Edgars or the Garrisons purchased their respective lands.

(ii) The second relevant segment of the Hazelwood Project was constructed to the

north of Innisfail in the south road allowance of Range Road 360 to the east of

Highway 54. The Jacksons own the ¼ section of land southeast of the

intersection of Highway 54 and Range Road 360 (the “Jackson Lands”). Kenneth

and Jill Wagers (the “Wagers”) own three separate contiguous parcels of land, all

on the south side of Range Road 360 immediately to the east of the Jackson

Lands. This segment of the power transmission line is constructed on monopole

steel towers situated within the road allowance immediately adjacent to the

Jackson Lands and also immediately adjacent to the three parcels of land owned

by the Wagers.

Page: 5

(iii)The third relevant segment of the Hazelwood Project was constructed north of

Innisfail in the road allowance on the west side of Highway 54 south of Township

Road 360. The Jackson Lands are located on the east side of Highway 54 and to

the south of Township Road 360.

[9]

Upon granting the ROE Orders in relation to the Appellants’ lands, the SRB was required

by s 23 of the Act to make an order granting compensation to each of the Appellants. In each

case the SRB granted an order compensating the Appellants for the market value of the lands

taken by the ROE Orders. No appeal has been brought from those portions of the SRB Orders.

[10] These appeals relate to whether the SRB may award compensation for injurious affection

for reduced property values arising from the presence of the high voltage transmission lines on

government rights of way adjacent to the Appellants’ lands.

[11] In each of the decisions under appeal, the SRB concluded that it could not award

compensation for injurious affection unless the utility infrastructure (in the present cases the

power transmission lines and monopole steel towers) were situated on the lands that were the

subject of the ROE Orders.

[12] The Appellants argue that the SRB erred in its interpretation. They argue that they

should be awarded compensation for injurious affection to compensate for the decline in the

value of their lands, notwithstanding that the monopole steel towers are not situated on their

lands or on the right of way granted by the ROE Orders.

2. ISSUES TO BE DECIDED

[13] This appeal give rise to three issues:

1) Does s 25 of the Act give the SRB jurisdiction to award compensation for

injurious affection to landowners where the “area granted to the operator”

does not contain any utility infrastructure and where the utility infrastructure

remains solely situated within the government road allowance?

2) If the SRB has jurisdiction to award compensation to the Appellants for

injurious affection, what if any, compensation award should be made?

3) Does this Court have jurisdiction to vary an award of costs made by the SRB

and if the Court does have this jurisdiction, should the award of costs be

varied?

3. STANDARD OF REVIEW

[14] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v

Vavilov, 2019 SCC 65 (Vavilov) created a revised framework to determine the standard to be

applied when a court reviews the merits of an administrative decision. The Supreme Court

explained that the analysis begins with a presumption that reasonableness is the applicable

standard of review in all cases. However, the presumption can be rebutted by a clear indication

of legislative intent or by the rule of law: Vavilov at paras 10, 16. A legislative intent to use some

standard of review other than reasonableness can arise, inter alia, “where a legislature has

provided a statutory appeal mechanism from an administrative decision to a court, thereby

signalling the legislature’s intent that appellate standards apply when a court reviews the

Page: 6

decision”: Vavilov at paras 17, 36-37. Thus, Vavilov suggests that an appellate standard of

review should be engaged on this appeal.

[15] Historically, decisions of the SRB have been reviewed on a reasonableness standard:

Imperial Oil Resources Ltd v 826167 Alberta Ltd, 2007 ABCA 131 at para 18 (Imperial Oil

Resources); Serink v ATCO Electric Ltd, 2017 ABQB 327 at para 12. This standard has been

applicable even though appeals from SRB decisions proceed by a de novo hearing.

[16] On June 2, 2021, Bill 48: Red Tape Reduction Implementation Act, 2020 (No. 2) (Bill 48)

received royal assent and came into force. The effect of Bill 48 is to combine several provincial

boards into a single agency. The new agency’s enabling legislation, the Land and Property

Rights Tribunal Act SA 2020, c L-2.3, at s 19 specifically provides that the reasonableness

standard is applicable to all appeals from decisions of the new tribunal on a going forward basis.

However, s 21(c) of the new legislation provides that appeals commenced but not completed

before the new legislation came into force on June 2, 2021 are governed by the existing

legislation. The present appeals were commenced before June 2, 2021. As a result, Valvilov

directs that the appellate standard of review must be applied to this case: see Hart v ATCO

Electric, 2021 ABQB 162.

[17] Appellate standards of review were described in paragraph 37 of Vavilov as follows:

Where, for example, a court is hearing an appeal from an administrative decision,

it would, in considering questions of law, including questions of statutory

interpretation and those concerning the scope of a decision maker’s authority,

apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002

SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal

includes questions of fact, the appellate standard of review for those questions is

palpable and overriding error (as it is for questions of mixed fact and law where

the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-

37….

[18] The primary issue on these appeals is whether the SRB erred when it concluded that it did

not have jurisdiction to award compensation for injurious affection to the Appellants. This

involves the interpretation of s 25 of the Act and must be reviewed on a standard of correctness.

Vavilov described the correctness standard at para 54:

When applying the correctness standard, the reviewing court may choose either to

uphold the administrative decision maker’s determination or to substitute its own

view: Dunsmuir, at para 50. While it should take the administrative decision

maker’s reasons into account – and indeed, it may find that reasoning persuasive

and adopt it – the reviewing court is ultimately empowered to come to its own

conclusions on the question.

[19] In all but one of the parcels of land under consideration, the SRB made no assessment of

compensation in relation to injurious affection and thus, no standard of review is engaged. I will

therefore make findings in relation to compensation based entirely on the evidence before me on

this appeal. With respect to the assessment of compensation undertaken by the SRB in relation to

one of the parcels of land in issue, the standard of palpable and overriding error will be applied.

Page: 7

[20] Whether the Court has jurisdiction to review an award of costs made by the SRB is a

legal issue that was not before the SRB. This is an issue and must be determined based upon an

interpretation of the Act.

[21] If it is determined that this Court has jurisdiction to review the costs awards made by the

SRB, then that review would be conducted based on palpable and overriding error.

4. ANALYSIS

A. Compensation for Injurious Affection

i.

Positions of the Parties

[22] The Appellants argue that the installation and operation of the high voltage transmission

lines on towers immediately adjacent to their lands has a negative impact on the value of their

lands and they seek compensation for this loss. They argue that this type of compensation is

specifically contemplated by s 25(1)(d) and by s 25(5)(a) of the Act.

[23] AltaLink agrees that s 25(1)(d) permits the SRB to award compensation for injurious

affection, including the loss of value of lands, but only where the infrastructure is located on the

lands that are subject to a ROE Order. Subject to one minor exception that will be dealt with

separately, the parties agree that none of the transmission towers or transmission lines are located

on the lands that are subject to a ROE Order. As a result, AltaLink argues that, on a proper

interpretation of s 25(1)(d), no compensation for injurious affection can be granted. AltaLink

also argues that s 25(5)(a) is not relevant in the context of damages for injurious affection and

instead is directed to other types of damage.

ii.

Legislative Provisions

[24] The relevant sections of the Act that address the circumstances in which the SRB can

award compensation are as follows:

Compensation

23

On making a right of entry order, the Board shall, in accordance with its

rules, hold proceedings to determine the amount of compensation payable and the

persons to whom it is payable.

. . .

Determining Compensation

25(1) The Board, in determining the amount of compensation payable, may

consider:

(a)

(b)

(c)

the amount the land granted to the operator might be expected to

realize if sold in the open market by a willing seller to a willing buyer

on the date the right of entry order was made,

the per acre value, on the date the right of entry order was made, of

the titled unit in which the land granted to the operator is located,

based on the highest approved use of the land,

the loss of use by the owner or occupant of the area granted to the

operator,

Page: 8

(d)

the adverse effect of the area granted to the operator on the

remaining land of the owner or occupant and the nuisance,

inconvenience and noise that might be caused by or arise from or in

connection with the operations of the operator,

(e)

(f)

the damage to the land in the area granted to the operator that might

be caused by the operations of the operator, and

any other factors that the Board considers proper under the

circumstances.

. . .

25(5) In making a compensation order, the Board may also determine the amount

of compensation payable by the operator:

(a)

for damage caused by or arising out of the operations of the operator to

any land of the owner or occupant other than the area granted to the

operator, if those operations were incidental to the operations of that

operator on the area granted to the operator under the right of entry

order,

(b)

(c)

for the loss of or damage to livestock or other personal property of the

owner or occupant caused by or arising out of the operations of the

operator, and

for time spent or expense incurred by the owner or occupant in recovering

any of the owner’s or occupant’s livestock that have strayed due to an act

or omission of the operator,

and shall determine the person to whom the compensation is payable.

[emphasis added]

iii. Principles of Statutory Interpretation

[25] In Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, the Supreme Court of Canada

adopted the modern approach to statutory interpretation. The words of an Act are to be read in

their entire context and in their grammatical and ordinary sense harmoniously with the scheme of

the Act, the object of the Act, and the intention of Parliament.

[26] The Supreme Court has confirmed this approach to statutory interpretation in numerous

decisions, including in Thibodeau v Air Canada, 2014 SCC 67 at para 112. See also Bell

ExpressVu Limited Partnership v Rex, 2002 SCC 42 at paras 26 and 27, where the Court noted

the important role that context must inevitably play when a court construes the written words of a

statute, and ATCO Gas and Pipelines Ltd v Alberta (Energy and Utilities Board), 2006 SCC 4

at para 48, where the Court stressed that a court must consider the total context of the provision

to be interpreted “no matter how plain the disposition may seem upon initial reading”.

[27] The Alberta Court of Appeal in Alberta v ENMAX Energy Corporation, 2018 ABCA

147, again emphasized the importance of context in statutory interpretation and, specifically, the

need to consider the purpose of the statutory provision in the context of the legislative scheme.

The Court explained (at para 70):

Page: 9

The modern rule of statutory interpretation requires courts to take a unified

textual, contextual and purposive approach to this task: Ruth Sullivan, Sullivan on

the Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2014)

[Sullivan] at 7-8. A court must consider not only the textual wording of the

statutory provision in dispute but also the purpose of that provision and all

relevant context. That includes the legislative scheme of which the provision

forms a part. [emphasis added]

[28] In Geophysical v EnCana, 2017 ABCA 125, the Court of Appeal also emphasized the

importance of giving effect to the intention of Parliament. The Court explained that a strict

grammatical construction need not be adhered to where it does not give effect to the intention of

Parliament in enacting legislation (at para 79). In support of this statement, the Court cited

Pierre-André Côté, The Interpretation of Legislation in Canada, 4^thed (Toronto: Thomson

Reuters Ltd, 2011), at page 324.

[29] As a result, the modern approach to statutory interpretation rejects the notion that

statutory interpretation requires nothing more than a strict grammatical construction of the words

of the statutory provision, but it still requires that the words of the provision be read in its

grammatical and ordinary sense: Rizzo at para 21. Therefore, the express words used in the

statutory provision under consideration remains both the starting point for the exercise of

statutory interpretation and the focal point of the analysis: Williams Lake Indian Band v

Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para 195.

[30] This is the basis on which s 25 of the Act must be interpreted.

iv.

Interpretation of Subsection 25(1)(d)

[31]

The parties agree on some aspects of the interpretation of s 25(1)(d). For example, all

parties agree that the “adverse effect” referred to in s 25(1)(d) is synonymous with or includes

“injurious affection.” This is a term that describes a loss of value of the lands arising from some

interference. Injurious affection can also arise from “nuisance, inconvenience and noise” that is

referred to in s 25(1)(d).

[32] The parties also agree that s 25(1)(d) permits compensation awards for injurious affection

in some circumstances. They disagree as to whether such compensation can be awarded to these

Appellants. The primary issue on these appeals is whether the SRB may award compensation for

injurious affection where the operations of AltaLink in relation to the installation and operations

of the power transmission lines takes place within the government road allowance and not on the

lands granted in the ROE Orders.

a) Appellants’ Proposed Interpretation

[33] The Appellants argue that the proper interpretation of s 25(1)(d) permits two distinct

types of compensation for injurious affection that are separated by the word “and”:

 The first type of compensation is said to be the “the adverse effect of the area

granted to the operator on the remaining land of the owner or occupant”. The

Appellants agree that this is a qualified right to compensation and can only be

awarded by the SRB where the adverse effect arises from activities of the operator

on the area granted, in this case the right of way.

Page: 10

 The second type of compensation is based on “the nuisance, inconvenience and

noise that might be caused by or arise from or in connection with the operations

of the operator”. The Appellants argue that this second type of compensation is

not qualified. They argue that this type of compensation may be awarded whether

or not the nuisance, inconvenience or noise arises from the activities of the

operator on the area granted, provided that it arises in connection with the

operations of the operator pursuant to which the ROE Order was granted.

[34] The Appellants base their claim on the second type of compensation. They argue that the

proper interpretation of s 25(1)(d) permits compensation for the decline in the value of the land

arising from the nuisance, inconvenience, or noise even though this arises from the installation

and operations of the transmission infrastructure solely within the government road allowance.

b) AltaLink’s Proposed Interpretation

[35] AltaLink argues that s 25(1)(d) must be read much differently. It argues that the opening

words in the subsection, “the adverse effect of the area granted to the operator”, qualify the

remaining words of the subsection. This position is summarized at para 50 of AltaLink’s Final

Written Submissions:

The presence of “and” between “the adverse effect of the area granted to the

operator on the remaining land of the owner or occupant AND the nuisance,

inconvenience and noise that might be caused by or arise from or in connection

with the operations of the operator” indicates that the legislature intended for the

whole subsection to relate to the “area granted to the operator”. [emphasis in

original]

[36] AltaLink urges that this interpretation should be accepted because the jurisdiction to

award compensation flows directly from s 23 of the Act and from the granting of a ROE Order in

relation to the “area granted”. AltaLink argues that s 23 does not give the SRB jurisdiction to

award compensation arising from installations or operations that may have been authorized on

adjacent lands, no matter how near or far from the “area granted”. As a result, to obtain a

compensation order, the landowner must prove that the losses they claim are attributable to the

ROE Order in relation to the “area granted”. Only if this is established can the SRB award

compensation for injurious affection arising from nuisance, inconvenience, or noise under s

25(1)(d).

[37] AltaLink argues that this interpretation is supported by recognized principles of statutory

interpretation. It argues that the principle of “orderly arrangement” suggests that each subsection

of a statute contains a single complete idea and that related items are grouped together within the

same section or series of sections. AltaLink argues that this principle suggests that there is only

one complete idea referenced in s 25(1)(d) and that the whole of the subjection is therefore

qualified by the opening words of the subsection.

[38] In addition, AltaLink argues that the presumption of “associated words” supports its

position. This presumption recognizes that when one or more words or phrases perform a

parallel function within a provision and are linked by the word “and”, the meaning of each is

presumed to be influenced by the others. AltaLink argues that this reinforces the interpretation

that s 25(1)(d) consists of one single cohesive provision that permits compensation only when

Page: 11

the adverse effect arises from the operations of AltaLink within the area granted by the ROE

Order.

[39] AltaLink also argues that on a consequential analysis, the principle of absurdity strongly

argues against the interpretation put forward by the Appellants. In this regard, AltaLink points

out that the SRB has jurisdiction to award compensation only to those landowners whose lands

are subject to a ROE Order. AltaLink argues that it would be absurd to permit an interpretation

of s 25(1)(d) which would permit one landowner to receive compensation for injurious affection

arising from activities within a government road allowance when a neighbour immediately

across the road would not receive any compensation because his or her lands are not subject to a

ROE Order, even though the impact on those lands might be just as great or greater than that of

the landowner who is subject to the ROE Order. AltaLink argues that the Legislature could not

have intended this outcome.

c) Express Words of s 25(1)(d)

[40] The express words used in s 25(1)(d) must be both the starting point for the exercise of

statutory interpretation and the focal point of the analysis: Williams Lake Indian Band v

Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para 195. However,

the language of s 25(1)(d) is awkward and ambiguous. As a result, the proper interpretation of s

25(1)(d) is not apparent on a plain reading of the provision.

[41] For this reason, it is necessary to consider other principles that will assist with the

interpretation.

d) Context and Purpose of Legislation

[42] The early legislative history of the Surface Rights Act was described in the Alberta Law

Reform Institute, Report No. 12, “Expropriation,” (March 1973) (online) (the “Institute Report”).

[43] The first iteration of the surface rights legislation was the Right of Entry Arbitration Act,

SA 1947, c 24 and was directed at compensating surface rights holders when the owners of

mineral rights entered upon the surface for the purpose of exploiting minerals. This legislation

was re-enacted, with some amendments, as the Surface Rights Act, SA 1972 c 91. This version

of the legislation was later amended by the Surface Rights Amendment Act, SA 1976 c 85 to

include provision for compensation to owners or occupiers whose lands were required for the

purpose of power transmission lines. Prior to this amendment, compensation issues in relation to

power transmission lines were dealt with in the expropriation legislation.

[44] The 1972 surface rights legislation was again repealed and replaced by the Surface Rights

Act, SA 1983, c. S-27.1. This version of the Act contained several changes to the compensation

scheme. However, the 1983 amendments did not modify the provisions of the current s 25,

which have been in place since 1972.

[45] The Legislature has recognized, as in the oil and gas context, that the installation and

operation of power transmission lines cannot practically be undertaken without resulting in harm

to some private landowners. Without legislative intervention, landowners and occupiers might

prevent or otherwise interfere with the installation of power transmission lines on their own

property. The Act creates an orderly mechanism for utilities to gain access to private lands in

exchange for compensation. An operator does not have an automatic right of entry onto private

lands to construct or install power transmission lines, nor to operate the lines on an ongoing

basis, but must first obtain the consent of the owner and the occupant of the lands. If the consent

Page: 12

of the owner and occupant cannot be obtained voluntarily, the operator may apply to the SRB for

a right of ROE Order under s 15 of the Act, as was done in this case.

[46] If a ROE Order is granted, then s 23 of the Act provides a mechanism to require the SRB

to determine the amount of compensation that must be paid to owners or occupiers of the lands

that are the subject of the ROE Order. The factors that the SRB may consider when determining

the compensation are outlined in s 25.

[47] A review of these sections of the Act makes it clear that, specifically with respect to

power transmission line installations, the purposes of the Act are:

(1)

to balance the requirements of electrical utility operators with the rights of owners

and occupiers of lands;

(2)

(3)

to require that owners and occupiers are paid fairly for the use of their lands; and

to provide an efficient mechanism to determine the amount of compensation

payable in a manner consistent with the jurisdiction of the SRB.

[48] Because one of the purposes of the Act is to ensure that owners and occupiers are paid

fairly for the use of their lands, this suggests that the Legislature intended that the compensation

be broad in nature. This would be consistent with a fair, large and liberal construction of s

25(1)(d), as contemplated by the Interpretation Act, RSA 2000 c. I-8, s 10.

[49] However, the authority of the SRB to award compensation arises from s 23 of the Act

and only exists if the SRB has granted a ROE Order under s 15. In the absence of a ROE Order,

the SRB has no jurisdiction to make any compensation award. Therefore, an owner or occupant

of lands that are not subject to a ROE Order, has no right to compensation even if their lands

have been significantly adversely affected by power transmission infrastructure.

[50] But, once the SRB has jurisdiction to award compensation pursuant to s 23, a broad

discretion exits pursuant to s 25 to determine the proper amount of compensation to be awarded.

In this regard the factors listed in s 25(1) are permissive and not exhaustive. This is made clear

from the express words of s 25(1): “The Board, in determining compensation may consider” the

factors listed in (a) through (f). Furthermore, s 25(1)(f) permits the SRB to consider “any other

factors that the Board considers proper under the circumstances.”

[51] Therefore, once the prerequisites for the SRB to provide compensation are satisfied, it

has a broad discretion as to how the compensation award is assessed.

[52] Subsection 25(1)(d) must be interpreted considering the context and purpose of the

legislation.

e) Past SRB Decisions

[53] In recent decisions, the SRB has interpreted s 25(1)(d) to mean that both the “adverse

effect of the area granted to the operator” and the “nuisance, inconvenience and noise that might

be caused by or arise from the operation of the operator” must relate to the activities of the

operator on the area granted by the ROE Orders: AltaLink Management Ltd. v Ryan, 2018

ASSRB 110, AltaLink Management Ltd v Soorya Investments Ltd, 2014 ABSRB 222,

AltaLink Management v Burnham, 2016 ABSRB 153, AltaLink Management Ltd v Antliff,

2016 ABSRB 1011, AltaLink Management Ltd v Daines, 2018 ABSRB 236, AltaLink

Management v Blyth, 2018 ABSRB 514.

Page: 13

[54] None of the decisions of the SRB are binding upon me, particularly when applying a

standard of correctness. However, as is noted in Ruth Sullivan, Sullivan on the Construction of

Statutes, 6^thed, (Markham: LexisNexis Canada, 2014), at p. 710:

It is well established that administrative interpretation may be relied on by courts

to assist in determining the meaning or effect of legislation. However, the

opinion of administrative interpreters is not binding on the courts. Except in so

far as they are empowered to do so by statute, administrators can neither make

law (that is the job of the legislature) nor determine its true meaning (that is the

job of the courts). All they can do is offer an opinion that is more or less

persuasive.

[55] As a result, administrative policy and interpretation are not determinative but are entitled

to weight and can be an “important factor” in case of doubt about the meaning of legislation:

Nowegijick v R, [1983] 1 SCR 29 at 37; Vavilov at para 54.

[56] Therefore, it is appropriate that I recognize the expertise of the SRB and consider that its

recent decisions have been consistent in the interpretation of s 25(1)(d) in a manner that AltaLink

argues is the correct interpretation.

f) Expropriation Principles

[57]

The Appellants argue that the compensation mechanism in the Act is similar to that

employed in expropriation proceedings where the authorities require that the owner of land that

has been expropriated must be made “whole” based on the principle of full and fair

compensation.

[58] In Smith v Alliance Pipeline, [2011] SCC 7, at paras 55 to 57, the Supreme Court

explained the rationale for this principle in the context of the National Energy Board Act, R.S.C.

1985, c. N-7:

Moreover, the NEBA operates within the broader context of expropriation law,

both federal and provincial. As early as 1949, this Court acknowledged the

vulnerable position of expropriated owners. In Diggon-Hibben Ltd. v. R., [1949]

S.C.R. 712 (S.C.C.), at p. 715, Rand J. (Taschereau J. concurring) stated that no

one should be "victimized in loss because of the accident that his land [is]

required for public purposes". In the same case, Estey J., citing with approval the

earlier reasons of Rand J. in Irving Oil Co. v. R., [1946] S.C.R. 551 (S.C.C.),

affirmed the right of an expropriated person under the relevant clause "to be made

economically whole" (p. 717; see K. J. Boyd, Expropriation in Canada: A

Practitioner's Guide, (1988), at pp. 144-45).

More recently, in Dell Holdings Ltd. v. Toronto Area Transit Operating

Authority, [1997] 1 S.C.R. 32 (S.C.C.), at paras. 20-22, Cory J. (speaking for six

of the seven-member panel) reaffirmed the principle of full compensation.

Dealing there with Ontario's Expropriations Act, R.S.O. 1990, c. E.26, Justice

Cory held that the Act, a remedial statute, "should be read in a broad and

purposive manner in order to comply with the aim of the Act to fully compensate

a land owner whose property has been taken" (para. 23).

Like various provincial expropriation statutes, the NEBA is remedial and warrants

an equally broad and liberal interpretation. To interpret it narrowly, as the

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respondent in this case suggests, would in practice transform its purpose of full

compensation into an unkept legislative promise.

[59] The Appellants also rely on the decision of the Supreme Court of Canada in Antrim

Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, which also supports a

broad approach to compensation under the expropriation legislation.

[60] While these and other expropriation cases can provide guidance in relation to the general

principles, neither Smith v Alliance Pipeline nor Antrim Truck Centre are directly applicable in

relation to the interpretation of s 25(1)(d) of the Act. This is because the legislative provisions

interpreted and applied by the Supreme Court are much different than the surface rights

compensation provisions of the Act.

[61] In Smith, the landowner sought to recover costs that had been incurred to attend at two

separate Arbitration hearings and a related proceeding. The Supreme Court interpreted and

applied s 99(1) of the National Energy Board Act that required the Arbitration Board to award

“all legal, appraisal and other costs” reasonably incurred by the landowner to assert a claim for

compensation where the amount of the compensation award exceeded 85% of the award made by

the Board. The provisions in s 99(1) create a detailed and very specific costs regime which is

mandatory. This is very different than the discretionary surface rights cost provisions in Alberta

contained in s 39 of the Act.

[62] Similarly, in Antrim, the Supreme Court confirmed an award of compensation to a

landowner who had been adversely affected by a reconfiguration of a major highway very near

the Appellant’s business. None of the Appellant’s lands had been expropriated but a claim for

compensation was advanced pursuant to s 21 of the Ontario Expropriations Act, R.S.O. 1990, c.

E.26. This section provides a right to compensation in certain circumstances for injurious

affection even where none of the claimant’s land is expropriated. This is very different than the

Alberta surface rights legislation which permits the SRB to make compensation awards only

where a ROE Order has been made and where there has been some taking of the claimant’s land.

[63] Therefore, when using expropriation cases to assist with the interpretation of the surface

rights compensation provisions, it is necessary to use care to distinguish between the Court’s

comments that are of general application and those that are made in the context of the specific

expropriation legislative provisions being considered and applied.

[64] Moreover, it is necessary to compare an expropriation with a “taking” of land under the

Act through the granting of a ROE Order. Clearly some similarities exist. However, there are

some significant differences as well. The distinction between the two was explained by Eric

C.E. Todd, The Law of Expropriation and Compensation in Canada, 2^nded. 1992, Carswell

(Todd) at page 436:

Notwithstanding some similarities between the “forced sale” of expropriation and

the “forced rent” of a surface right of entry it is now clearly established that a

surface rights case does not involve expropriation law “but rather … a statutory

scheme expressly founded on compensation rather than valuation.” …It has been

stated that the acquisition of a statutory right of entry is not the same as the

expropriation of an easement and that compensation in the two cases is not based

on the same principles. However, although in general expropriation law does not

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apply, it may be appropriate to apply some expropriation principles provided that

they are applied correctly. [cites omitted]

[65] On at least two occasions the Alberta Court of Appeal has concluded that the law relating

to expropriation does not necessarily apply to the surface rights context, because the Act does not

transfer title: Sawiak v Paloma Petroleum, (1989) 71 Alta L.R. (2d) 360 (ABCA); Murphy Oil

Co. v. Dau, (1969) 70 W.W.R. 339 (ABSCAD) at 347.

[66] Two main differences between expropriation and the “taking” of a right of way under the

Act have been recognized (see Todd, at pages 436-438, and authorities cited therein).

[67] The first difference relates to the title to the lands taken. In most expropriations, the

whole of the landowner’s interest in the expropriated land is mandatorily transferred to the

expropriation authority. The landowner no longer has title to the land and is left with no interest

in the lands expropriated. This gives rise to a clear need to make the landowner “whole.” In

contrast, in most cases where a ROE Order is granted under the Act, the operator does not take

the whole interest in the lands. Instead, title remains with the landowner.

[68] In the present case, the ROE Orders granted AltaLink the right to use the right of way

“for or incidental to the construction, operation or removal of a power transmission line”.

AltaLink was not required to and did not use the right of way for all of these purposes. AltaLink

did not construct the power transmission line within the right of way but instead constructed the

power transmission lines within the government road allowance. In fact, in relation to the lands

that are the subject of these appeals, AltaLink’s use of the lands within the right of way consists

only of entry to facilitate maintenance of the transmission lines on a 7-year cycle. Otherwise, the

land remains accessible to the Appellants. Despite this, the landowners are compensated for

100% of the fair market value of the land subject to the ROE Orders. Furthermore, on the

termination of the surface lease, the rights of the owner are restored and become unencumbered

with respect to any rights that had previously been granted by the ROE Order. Any residual

value of the land must be ignored when determining compensation [s 25(2)]. In this respect the

“taking” under the Act is much different than an expropriation.

[69] I note however that some commentators have argued that this distinction is more

imagined than real: Lars Olthafer, Petroleum Law Edition – Recent Developments in Surface

Rights Law – Pipeline Right-of-Way Compensation – Annual Payments and Injurious Affection –

Federal and Alberta Developments, (2005) 43 Alta. L. Rev. 89 – 128 at para 20 and footnote 38.

[70] The second main difference between expropriation and the “taking” of a right of way

under the Act relates to the discretion of the tribunal to make a compensation award. Where only

part of an owner’s land is taken through an expropriation, s 56 of the Expropriation Act requires

that compensation be given for injurious affection which arises from the construction or use of

the works for which the land in required. The Tribunal has no discretion. It must award

compensation under s 56 where injurious affection is established.

[71] Conversely, the Act gives the SRB very broad discretion to determine whether

compensation for injurious affection should be awarded and, if so, the amount of compensation

payable, but only if it has granted a ROE Order under the Act. The factors that the SRB may

consider in determining the amount of the compensation payable are described in s 25(1). But

those factors are discretionary. The SRB “may” consider them in arriving at compensation.

Equally importantly, the SRB is permitted by s 25(1)(f) to consider “any other factors that the

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Board considers proper under the circumstances.” Thus, the SRB has a very broad discretion in

determining whether to award compensation and the amount of compensation to be awarded.

[72] A paper by Brian K. O’Ferrall (now O’Ferrall JA) presented at the 1987 Mid-Winter

Meeting of the Alberta Branch of the Canadian Bar Association, The Energy Resources

Conservation Board, The Surface Rights Board and the Relationship Between the Two, examined

the role of the SRB in making compensation awards. He observed that the discretion given to

the SRB was wide and, at times, was influenced by political considerations. The author noted

that in this way the SRB has been seen as an arbitrator between industry and landowners. At

pages 56 to 57 the author explained:

The Board’s other jurisdiction, that of determining compensation, is its most

important jurisdiction. The Board essentially is a compensation tribunal. But

unlike other compensation tribunals, namely the Land Compensation Board, the

Surface Rights Board is more of an arbitrator between two interests in society.

Unless this is understood, individual Board decisions will make no sense. The

Board is not only deciding questions of compensation between particular

companies and particular landowners, it is also arbitrating between industry and

landowners generally every time it makes a decision.

... In this sense, the Board is very much a “political” tribunal, arbitrating between

landowners and the energy industry. And the courts have recognized, with

approval, the political aspect of the Board’s process [citing Livingstone v Siebens

Oil & Gas Ltd. (1978) 3 W.W.R. 484 at p. 489].

[73] As a result, the SRB has very broad discretion in determining compensation. This is

much different than the mandatory provisions of the Expropriation Act.

[74] I conclude that while some of the general principles from expropriation cases apply in the

surface rights context, they cannot dominate the interpretation of the compensation mechanism

in the Act. Nor can the legislative provisions in the Expropriation Act be imported into the Act.

Simply put, the Expropriation Act and the expropriation cases cannot displace the compensation

provisions of the Act.

g) The “Edwards Rule”

[75] At common law, the owners of partially expropriated lands were entitled to compensation

for injurious affection in relation to the remaining lands only where the reduction in value of the

remaining land arose from the use of the land that had been taken from the owner. As was

explained by Professor Todd at page 338, “The owner cannot recover compensation for

deleterious effects which originate from the use of land acquired from other owners or already

owned by the public authority.” Professor Todd refers to this principle as the “Edwards Rule”

(see, Edwards v Minister of Transport, [1964] 1 All ER 483 (Eng. C.A.))

[76] Professor Todd provides several illustrations of the application of this principle, including

one at page 338 which has direct parallels to the issues on this appeal:

... where land was expropriated by a tramway company in order to comply with a

statutory requirement that a street be of a minimum width before its tramway

could be operated, the owner could not claim for injurious affection caused to the

remaining property by the operation of the tramway which was constructed on

that portion of the street in existence before the widening. The claim was limited

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to depreciation attributable only to the use of the expropriated portion as part of

the street.

[77] This common law rule was also expressly addressed in the Institute Report in 1973. The

relevant extracts are found at pages 103 to 107 and include the following:

Expropriation of part of a parcel of land is common place. In such a case, not

only does the owner lose the land that is taken but in most cases the value of the

remaining land is diminished. It is recognized in expropriation law that the owner

is entitled not only to compensation for the expropriated land but for the

diminution in value of that which remains. There is a severance of the original

parcel and injurious affection to the balance.

. . .

Under existing law as developed by the cases three conditions must be met to

establish a claim for injurious affection,

(1) There must have been unity of ownership between the land taken and the

remaining land. This does not mean that the two portions must have been a single

parcel but they must have been in close proximity.

(2) The lands taken must have enhanced the value of the remaining lands,

(3) To permit recovery for the injurious affection to the remaining lands, the

injurious affection must have been caused by acts on the land taken and not on

some other land. [emphasis added].

[78] In his text at page 340, Professor Todd argues that the Edwards Rule is inconsistent with

the conceptual basis of compensation where a portion of the land is expropriated. He notes that

the common law rule has been subject to much criticism and was reversed in England. He also

notes that some law reform commissions in Canada have recommended a change, although he

concedes that was not the case in Alberta with the Institute Report.

[79] The Institute Report did acknowledge the force of the criticism in relation to the common

law rule and specifically considered whether to recommend its abolition. However, on balance,

the authors of the Institute Report were not prepared to recommend a change to the rule. In

coming to this conclusion, the authors realized that wherever the line is drawn there are likely to

be some anomalies.

[80] It is significant to note that the Institute Report was completed and submitted in March

1973, approximately 9 months after the 1972 version of the Act first came into force. The

Institute Report at page 151 specifically considered 23 of the 1972 Act [s 23(1)(c) is essentially

identical to the wording of the present s 25(1)(d)]. The authors recommended a single change to

s 23(3) but did not recommend a change to s 23(1)(c). It is apparent that the Legislature accepted

this recommendation because the wording of this subsection has not changed in any material way

since 1972.

[81] Because the Institute Report recommended against a change to the common law rule, I

conclude that the authors considered that s 23(2)(c) [now s 25(1)(d)] should be interpreted in a

way consistent with the application of the common law rule. Thus, it is arguable that in 1973 the

Legislature intended that s 23(2)(c) codified the common law rule and therefore continued to be

part of the law in Alberta in relation to surface rights compensation, despite the criticisms

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regarding the fairness of the rule. If this was the intention of the Legislature then compensation

for injurious affection under s 25(1)(d) can only be awarded where the operations of the operator

take place on the area granted by the ROE Order, a position consistent with the interpretation

advocated by AltaLink.

[82] It is also significant to note that the Institute Report did recommend a change to the

Expropriation Act, while at the same time recommending that the common law rule not be

abolished. The Legislature acted on this recommendation in 1974 and amended the legislation to

include the present s 56 of the Expropriation Act which is identical to the wording of the

recommendation proposed by the Institute Report (Recommendation #56 at page 110). Because

the Legislature accepted this recommendation, it was arguable that the Legislature in 1974

intended that the common law rule continue to be part of the law in Alberta in relation to

expropriation, despite the criticisms regarding the fairness of the rule. However, as I will now

describe, the Court of Appeal has not accepted this argument.

[83] In Landex Investments Ltd. v Red Deer (City), [1991] 6 W.W.R 275 (ABCA), the

municipality expropriated a strip of the land owned by the Appellant to facilitate the expansion

of a service road. The resulting expansion reduced accessibility to the retail establishment on the

Appellant’s lands. The Appellant sought compensation under s 56 of the Expropriation Act for

injurious affection because of the decline in the value of the land caused by the reconfiguration

of the service road, even though the reconfiguration did not take place on the expropriated lands.

The Board concluded that most of the effects either did not exist or were not compensable.

[84] On appeal, Justice Côté for the unanimous Court discussed and explained the common

law principles that prohibited compensation unless the work was undertaken on the land

expropriated. He concluded that using the rule would make Alberta’s compensation scheme

illogical and unfair. He explained this as follows, at paragraphs 33 to 35:

One could keep the old need for work on the very bit of land taken, only by

rewriting Alberta’s legislation. The courts presume that rights are not to be taken

without compensation unless the legislature clearly so directs. And that applies to

injurious affection also: Imperial Oil Ltd. v. R., [1974] S.C.R. 623, 35 D.L.R.

(3d) 73 at 78-79, 4 L.C.R. 66; Canadian Pacific Railway v. Albin, 59 S.C.R. 151,

[1919] 3 W.W.R. 873, 49 D.L.R. 618 at 627-68. So importing a restriction as to

place would be retrograde. There is no warrant for it.

Alberta’s Institute of Law Research and Reform may have been of the view that

that would be the effect of the new legislation: see its Report No. 12 on

Expropriation (1973), p. 107. But when the legislature passes a Bill it does not

thereby adopt past interpretations of similar legislation. Nor does it adopt all the

interpretations of a non-legislative body, as distinguished from that body’s

recommendations. The institute also gave a reason for recommending that

compensation not extend to works off the very land taken. The institute there said

that it was necessary to draw a line somewhere. That is true, but that is not the

only possible place to “draw the line.” The line need not be a physical one. The

purpose of the taking seems a more realistic and fairer line than the physical

boundaries of the particular lot taken. As the board here acknowledges, some

commentators criticize other provinces’ rule that compensation is limited to works

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on the land taken. Todd, Law of Expropriation and Compensation in Canada, p.

273, refers to its “possible iniquitous effect.”

Nor can I see any justice or logic in the old rule that the work must be on the

exact land taken. If a public body expropriates several lots or parts of lots for

garbage disposal, it is an accident which partial lot the smoke stack is erected on.

Using the old rule would make Alberta’s compensation scheme illogical and

unfair.

[85] The Court of Appeal in Landex Investments interpreted s 56 of the Expropriation Act in

a way that was different than suggested by the Institute Report. The Court concluded that s 56

should be interpreted in a way that permits compensation for injurious affection even where the

work that gives rise to the impairment of value of the remaining land is not undertaken on the

lands expropriated.

[86] Section 56 of the Expropriation Act contains much different language than that which is

used s 25(1)(d) of the Act. Therefore, Landex Investments is not directly applicable to the

present appeals. However, the underlying principle of general application from Landex

Investments is that the old common law rule limited based on Edwards is illogical and unfair.

[87] I conclude that the proper interpretation of s 25(1)(d) must reflect the underlying

principle described in Landex Investments. Thus, if alternate interpretations of the subsection

are possible, the interpretation that is illogical and unfair should not be preferred, and the

interpretation that gives effect to the remedial purposes of the legislation should be preferred.

h) Legislative Evolution

[88] The Right of Entry Arbitration Act, SA 1947, c 24 was amended from time to time and

became the Right of Entry Arbitration Act, RSA 1970, c 322 which was then repealed and

replaced by the Surface Rights Act, SA 1972, c 91. The most significant of the 1972 amendments

related to the way the Board was permitted to award compensation for injurious affection. More

specifically, the 1972 Act combined the two subsections that had previously permitted

compensation for injurious affection.

[89] Section 12(2) of the 1947 Act described the factors the Board could consider in

determining compensation as follows:

(a) the value of the land;

(b) the amount of land which may be permanently damaged by the operator’s

operations;

(c) the adverse effect of the right of entry on the remaining land;

(d) compensation for severance;

(e) compensation for the nuisance, inconvenience and noise which may be caused by

or arise from or in connection with the operations;

(f) such other factors as the Board may from time to time deem proper, relevant, or

applicable.

[emphasis added]

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[90] The Surface Rights Act, 1972 modified these factors by joining 20(2)(c) and 20(2)(e) to

create s 23(2)(c), now s 25(1)(d), which provides:

the adverse effect of the area granted to the operator on the remaining land of the

owner or occupant and the nuisance, inconvenience and noise that might be

caused by or arise from or in connection with the operation of the operator,

[91] The Institute Report strongly suggested that this provision should be interpreted in a way

that was consistent with the common law Edwards Rule. However, as noted in Landex

Investments Ltd., the Legislature does not necessarily adopt all the interpretations of a non-

legislative body, as distinguished from that body’s recommendations.

[92] The Appellants argue that by combining the old s 20(2)(c) and 20(2)(e) into a single

clause, the Legislature intended nothing other than to simply join the two separate branches of

“injurious affection” into one clause in a way that is consistent with the principle of “orderly

arrangement”.

[93] It is significant that prior to 1972, compensation for injurious affection arising from

nuisance, inconvenience and noise was not qualified in any way by reference to the operations of

the operator on the area granted. Instead, the nuisance, inconvenience and noise need only have

been “caused by or arise from or in connection with the operations.” For this reason, prior to

the 1972 amendments, the legislature clearly intended that compensation for injurious affection

arising from nuisance, inconvenience and noise would not be subject to the old common law

Edwards Rule as it was referred to by Professor Todd.

[94] The language of the pre 1972 s 20(2)(e) was sufficiently clear to displace the common

law: Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 at para 124.

[95] There is nothing before me to suggest that, by combining 20(2)(c) and 20(2)(e) of the

pre-1972 legislation into s 23(2)(c) of the 1972 Surface Rights Act, the Legislature intended to

revert to the old common law rule and permit compensation for injurious affection arising from

nuisance only where the operations of the operator were on the land taken. Instead, I conclude

that the combination of these two subsections was merely a matter of housekeeping. I conclude

that this argues strongly that the present s 25(1)(d) contains the mechanism to permit the SRB to

award compensation for two separate branches of injurious affection. I conclude that this argues

strongly in favour of an interpretation of s 25(1)(d) that would permit the SRB to award

compensation for injurious affection arising from nuisance, inconvenience and noise that arises

from the operations of the operator even where those operations do not take place on the area

taken by the ROE Order.

i) Conclusion

[96] When I consider s 25(1)(d) in its entire context and in its grammatical and ordinary sense

harmoniously with the scheme of the Act, the object of the Act, and the intention of the

Legislature, as I am directed to do by Rizzo, I conclude that the subsection must be interpreted in

a way that permits the SRB to make an award of compensation for injurious affection even

though the steel monopole towers and the transmission lines are located solely within the

government road allowance and not within the right of way granted by the ROE Orders.

[97] The starting point for the interpretation of s 25(1)(d) must be the words used in the

subsection. These words are awkward and do not clearly yield an interpretation that is

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immediately obvious. Both AltaLink and the Appellants have offered interpretations that are

plausible, at least when viewed in isolation from the scheme, purpose and context of the Act.

[98] One of the purposes of the Act is to provide a mechanism to provide fair compensation

where lands are partially taken by a ROE Order. This is remedial legislation and must be given a

fair, large and liberal construction of s 25(1)(d), as contemplated by the Interpretation Act, RSA

2000 c. I-8, s 10.

[99] The interpretation advocated by AltaLink is dependent on an interpretation of s 25(1)(d)

that is consistent with the old common law rule that permits compensation for injurious affection

only when the loss arises from the operations of the operator on the area taken. However, the old

common law rule has been subject to substantial criticism. Despite the recommendation of the

Institute Report that the old common law rule be maintained, the Alberta Court of Appeal has

rejected that approach. Landex Investments makes it clear that continuing to use the old

common law rule would make Alberta’s expropriation compensation scheme “illogical and

unfair.” The comments by the Court of Appeal are equally appropriate in relation to the

interpretation of compensation provisions under s 25 of the Act.

[100] The interpretation proposed by AltaLink is also inconsistent with the history and

development of the compensation provisions in the surface rights legislation since those

provisions were first introduced in 1947. The original provisions made it clear that

compensation for injurious affection caused by nuisance, inconvenience and noise was not

restricted to situations where the loss was occasioned by the operations of the operator on the

area taken. The 1972 amendments that combined the two branches of injurious affection into the

present s 25(1)(d) do not give any indication that this change signalled a change in legislative

intention. I conclude that the intention of the Legislature commencing in 1947 was to provide the

tribunal with very broad discretion to award fair compensation. Furthermore, I conclude that the

intention of the Legislature was that compensation for injurious affection was not limited to

situations where the loss was occasioned by the operation of the operator on the area taken.

[101] The interpretation proposed by the Appellants does not give rise to an absurd result, even

though nearby neighbours whose lands are not subject to a ROE Order cannot be granted

compensation by the SRB. As the Institute Report noted, wherever the line is drawn between

those who receive compensation and those who do not, there are likely to be some anomalies.

Justice Côté in Landex Investments acknowledged that a line must be drawn somewhere but

made it clear that there is more than one possible place to draw the line. In relation to

compensation awards it seems more reasonable to draw the line between those who are subject to

ROE Order and those who are not rather than to draw a line that is based on whether the

transmission towers are situated a few feet within the right of way or a few feet outside of the

right of way.

[102] I conclude that s 25 gives the SRB very broad discretion to determine the compensation

payable in relation to the ROE Order. Specifically with respect to these appeals, I conclude that

the SRB had the discretion pursuant to s 25(1)(d) to award compensation for injurious affection

arising from the nuisance, inconvenience and noise arising from the installation and operation of

the power transmissions lines within the government road allowance even though neither the

lines nor the steel monopole towers were installed within the area granted by the ROE Order. I

conclude that the SRB erred when it concluded that it did not have jurisdiction to make such an

award.

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[103] Simply because the SRB has the jurisdiction to award compensation for injurious

affection pursuant to s 25(1)(d) does not mean that it was necessarily required to award

compensation under this head. This is because the provisions of s 25 are permissive. The SRB

may consider whether the record before it demonstrates that injurious affection is established and

may also consider the extent of any injurious affection demonstrated. The SRB may also

consider other factors that it considers relevant and ultimately determine whether it will make an

award for compensation for injurious affection.

[104] Therefore, if injurious affection is established the SRB may exercise its discretion to

award compensation under that head. Alternatively, the SRB may exercise its discretion to not

award compensation for injurious affection. In exercising its discretion, the SRB must act

reasonably and in accordance with legal principles but ultimately must proceed in a manner that

achieves an overall compensation award that is fair.

[105] In the present cases the SRB had the discretion to make an award for injurious affection

and it erred when it failed to consider whether it was necessary to do so to achieve a fair

compensation award.

v.

Interpretation of s 25(5)

[106] The provisions of s 25(5) were earlier quoted. But for ease of reference, they are

repeated:

25(5) In making a compensation order, the Board may also determine the amount

of compensation payable by the operator:

(a) for damage caused by or arising out of the operations of the

operator to any land of the owner or occupant other than the

area granted to the operator, if those operations were

incidental to the operations of that operator on the area

granted to the operator under the right of entry order,

[emphasis added]

[107] This subsection permits the SRB to award compensation for “damage” caused to other

portions of the land of the owner or occupant. However, s 25(5) offers no assistance to the

Appellants because the “damage” referred to in s 25(5) is expressly tied to the land granted

pursuant to the ROE Order. This subsection permits a compensation award where the damage

arises from operations that are incidental to the “operations of the operator on the area granted”.

There is no evidence that AltaLink is conducting any operations on the “area granted” in relation

to any of the Appellants because all the AltaLink operations are being conducted within the

government road allowance. Thus, a compensation award for damages under s 25(5) is not

available in these circumstances.

[108] It is possible that that some damage to the other lands of the owners may occur when

AltaLink enters the right of way to undertake maintenance as part of its 7-year cycle. If damage

is done to the other lands in this process, then a compensation award may be appropriate

pursuant to s 25(5). But that is not an issue before the Court on these appeals.

[109] Moreover, I conclude that the “damage” referred to in s 25(5) does not included injurious

affection, which all parties agree is synonymous with “adverse effect”. Claims for both branches

of injurious affection are specifically dealt with in s 25(1)(d). Because this type of damage has

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been dealt with specifically in s 25(1)(d), the interpretation of s 25(5) should not favour awarding

such damages in a subsection that uses much more general language.

B. Compensation for Injurious Affection

[110] I have concluded that the SRB erred when it found it could not award compensation for

injurious affection. In these circumstances, the appeal provisions in s 26(7) of the Act provide

this Court with the “power and jurisdiction” of the SRB in relation to compensation. As a result,

I must consider the evidence and then determine whether I will exercise my discretion to vary the

compensation award in accordance with s 26(7)(c)(ii). For the reasons that follow I conclude

that the AltaLink power transmission lines constitute a nuisance because the presence of the high

voltage transmission lines on monopole steel towers immediately adjacent to the Appellants’

lands represent a substantial and unreasonable interference with the Appellants’ use and

enjoyment of their lands: Antrim Truck Centre Ltd. v. Ontario at para 18 to 19; St. Lawrence

Cement Inc v Barrette, [2008] 3 SCR 392 at para 77. With one exception, the high voltage

power transmission lines have had a material negative impact on the value of the Appellants’

lands and, for this reason, I conclude that the compensation awards made by the SRB must be

varied to achieve fair compensation awards.

[111] I heard evidence relating to compensation from all of the Appellants other than the Sabos.

Counsel for the Sabos did not tender any evidence in relation to quantum and instead requested

that I only address the issues relating to the entitlement to compensation and, depending on the

outcome, the proper amount of compensation will be negotiated or resolved in another forum.

For this reason, I will assess the compensation awards in relation to all Appellants other than the

Sabos.

i.

Expert Evidence

[112] The evidence in relation to adverse effects of the power transmission lines on the lands

owned by the Appellants was provided by two experts. Brian S. Gettel was called as an expert

for the Appellants and Glen Doll was called as an expert for AltaLink.

[113] Both experts are highly qualified professional appraisers and members of the Accredited

Appraiser Canadian Institute. Both experts have extensive agricultural and rural appraisal

experience in the Province of Alberta. Both experts have substantial experience assessing the

impact of power transmission lines on real estate values. Both experts testified in a very

professional, competent, and helpful fashion. Both experts prepared and presented extensive

reports in relation to the Appellants’ lands and offered opinions in relation to the impact that the

AltaLink 138 kV power transmission lines had on the values of the lands owned by the

Appellants.

[114] AltaLink was highly critical of the approach taken by Mr. Gettel to arrive at his

conclusions. For example, AltaLink criticized Mr. Gettel for using his study of the Heartland

project and its impact on the adjoining landowners because Heartland was a 240 kV project with

much larger lattice structures, not at all like the AltaLink project. Similarly, the Appellants were

critical of the analysis of Mr. Doll and the past studies that he has done on this topic.

[115] I am satisfied that none of these criticisms are warranted. The traditional work of an

appraiser is difficult. Attempting to find comparable properties is challenging when the reality is

that no two properties are ever truly alike. Attempting to estimate the impact that a power

transmission line will have on the value of a property is dramatically more challenging. This is

Page: 24

an art and not a science. There is a high level of subjectivity in arriving at opinions of this

nature.

[116] Mr. Gettel’s report in relation to the Garrison Lands at page 45 recognises that there is no

scientific way or standard formula to arrive at an estimate of the impact that a power

transmission line has on a piece of property.

[117] In this case I am satisfied that both experts have used their background and experience to

attempt to provide opinions to assist the SRB and the Court. But their opinions are highly

subjective. As a result, there is no utility in reviewing the specific criticisms of the two experts.

Both experts have provided their best opinions which are subjective and must be viewed as such.

[118] There was however commonality between Mr. Gettel and Mr. Doll in relation to some

fundamental factors that will influence the determination of proper compensation. Both experts

agreed that the presence of high voltage power transmission lines can and in some cases do have

a material negative impact on property values. Both agreed that the extent of the impact must be

assessed through an examination of the particular circumstances associated with the property

under consideration. There was general agreement between the experts that some of the most

important factors that affect the impact of the high voltage power transmission lines on property

values include the following:

 The highest and best use of the lands under assessment

 The size of the power transmission line and the size of the structures

 The proximity of the land to the power transmission line

 The proximity of the residence to the power transmission line

 The proximity of the land to municipalities

 The extent of any visual barriers shielding the power transmission line from view

 The extent of any sounds coming from the transmission lines

[119] Both experts agreed that these and many other factors that may be unique to the lands

under consideration, could give rise to further factors influencing property values. For example,

both experts agreed that for lands that are used only for agricultural purposes and where no

development is reasonably likely, the presence of a high voltage power transmission line will

have virtually no negative impact on value. Conversely, a very large power transmission line

with very large steel lattice towers situated in a municipal area would have a very significant

impact on the value of the lands that are proximate to the power transmission lines but the impact

would be expected to be much less for properties only a short distance from the lines.

[120] Despite their professionalism and their general agreement on the methodology, the

experts arrived at markedly different opinions regarding the impact that the power transmission

lines have had upon the Appellants’ lands. The opinions regarding the impairment of value of

the Appellants’ lands, as estimated by the two experts can be summarized as follows:

Estimate of Value

Gettel Doll*

% Negative Impact

Impairment

Appellant’s Lands

Edgar

Gettel

15%

Doll

5%

Gettel

106,500

54,000

Doll

710,000 245,000

545,000 235,000

**

Garrison

10%

5%

Page: 25

Wagers NE 32

Wagers W ½ NW 33

Wagers E ½ NW 33

Jackson

1,098,930

689,266

826,644

476,050

15%

10%

15%

20%

0

164,800

68,927

0

1,770,000 353,722

1,550,000 628,920

0

265,500

311,000

* Mr. Doll’s estimate is land value only without improvements

** Mr. Doll provides no Dollar value impairment. He provides % impairment

[121] Since each of the parcels of land are unique, it is necessary that I address each of the

parcels separately.

ii.

Jackson Lands

[122] Virtually the same expert opinions were presented by the experts to the SRB at the

hearing on December 5, 2018 as were presented on appeal in October 2021. Both experts used

the comparison approach in arriving at their estimates of value. The opinion of Mr. Doll was

that the Jackson lands had a per acre value of $4,000 whereas Mr. Gettel opined that the value of

the lands was $7,500 per acre. The difference was almost entirely attributable to the experts’

views as to the highest and best use of the Jacksons lands.

[123] At page 30 of his report, Mr. Doll opined that the highest and best use was “primarily as

agricultural and as a country residential use and as a country residential site, with general

recreational uses”. Mr. Gettel agreed in part with Mr. Doll but at page 21 of his report Mr.

Gettel provided a more detailed conclusion with respect to highest and best use:

An optimal program of utilization for the overall subject property is deemed to be

that of continued use as agricultural and rural residential holding. Given the

urban peripheral location, the property has excellent appeal for both its current

use as well for future development potential.

[124] The SRB concluded that Mr. Gettel’s opinion as to the highest and best use was better

supported in the marketplace. The SRB noted that the land is in close proximity to Innisfail, it

has road access on two sides and the Area Structure Plan indicates future designation for country

residential and that the rolling topography with the wetlands on the Jackson lands is more suited

to country residential than agricultural.

[125] Based on its conclusion regarding the highest and best use of the Jackson Lands, the SRB

valued the lands at $7,000 per acre. This was very close to Mr. Gettel’s opinion on value

($7,500) but much greater than Mr. Doll’s opinion on value ($4,000).

[126] This was a conclusion that was open to the SRB on the evidence presented before it. The

SRB made no palpable or overriding error in coming to that conclusion.

[127] There has been no appeal from the decision of the SRB regarding the value of the

Jackson lands. In these circumstances, it is no longer open to AltaLink to argue that the highest

and best use of the Jackson lands is as indicated by Mr. Doll. To do so would represent a

collateral attack on the final decision of the SRB in relation to the per acre value of the lands.

[128] For this reason, I conclude that the highest and best use of the Jackson lands is as found

by the SRB. The lands are more suited to country residential than agricultural.

Page: 26

[129] In terms of the value of the improvements, the only opinion tendered in evidence is that

of Mr. Gettel. There is no other evidence. He is a highly qualified professional appraiser. I

accept his opinion on value of the improvements which, combined with the value of the land at

$7,000 per acre results in an overall estimate of value of the lands at $1,550,000.

[130] Mr. Doll’s opinion that there has been no impairment of value was based on his opinion

regarding the highest and best use of the lands as agricultural, as a country residential use and as

a country residential site. Because the SRB determined that the highest and best use is more

suited to country residential than agricultural, it follows that Mr. Doll’s opinion regarding no

impairment cannot be supported.

[131] Mr. Gettel’s opinion was that the presence of the overhead power transmission line

changed the character of the immediate area which took on an “industrial flavour”. He stated

that this is not a positive attribute of the land since it is currently being used for hobby farm

purposes. This factor and the long-term potential for future development resulted in Mr. Gettel

concluding that power transmission line has had an adverse impact on the value of the Jackson

lands. I accept this opinion, in part, and conclude that the value of the Jackson lands has been

negatively impacted by the nuisance of the power transmission lines to the extent that the

“industrial flavour” is not consistent with the country residential use that the SRB determined

was appropriate. I do not accept that the long-term use for development purposes beyond

country residential is supported. More extensive development is speculative.

[132] The extent of the negative impact is more difficult to gauge. Mr. Gettel expressed the

opinion that the negative impact should be estimated at 20%. However, I conclude that the

largest part of that negative impact arises in relation to the power transmission lines that are on

the west side of Highway 54 on the opposite side of the highway from the Jackson lands. The

Jackson residence is situated near Highway 54. Prior to the construction of the AltaLink

transmission line, the Jacksons enjoyed a mountain view from their home. The AltaLink line has

interfered with that view and this has had a negative impact on the value of their lands.

Notwithstanding this, I am satisfied that because there is no ROE Order in relation to the west

side of the Jackson lands, it is simply not possible to award compensation for the negative

impacts that arise in relation to the power transmission line to the west of the Jackson lands. In

this regard the Jacksons are in no better position than any other landowner without a ROE Order.

Those landowners have no basis to seek compensation. Neither do the Jacksons. On this basis I

would exercise my discretion and not award any compensation arising from the AltaLink power

transmission lines across Highway 54 from the Jackson lands.

[133] The ROE Order in relation to the Jackson lands spans the entire north boundary of the

lands. The Jackson residence is approximately 2,000 feet from the right of way and the north

transmission lines. From the residence, the north power transmission lines are at least partially

obscured by trees and by a hill. I therefore conclude that the north power transmission line has

very little impact on the portion of the Jackson lands on which the residence is situated.

However, it is necessary to examine the impact of the north power transmission line on the

whole of the Jackson ¼ section which has the potential for the country residential use described

by the SRB. In this respect, I accept Mr. Gettel’s conclusion that the Jackson lands have been

negatively impacted by the AltaLink power transmission line. However, I conclude that the

impact arising from the north transmission lines running adjacent to the right of way to the north

of the Jackson lands is much less significant than the non-compensable impact of the

transmission lines on the west side of the property.

Page: 27

[134] I accept Mr. Gettel’s opinion that the power transmission lines have had an overall

reduction in the value of the Jackson lands of 20%. But I do not accept that all of the negative

impact is compensable. Of the 20% decline in value, I attribute 15% to the power transmission

lines to the west that are non-compensable. I conclude that the compensable negative impact of

the AltaLink transmission line to the north of the Jackson lands is 5%.

[135] I conclude that the proper compensation that should be payable to the Jacksons is

$77,500 ($1,550,000 x 0.5).

iii. Wagers Lands

[136] The Wagers own the two quarter sections immediately to the east of the Jackson lands on

the south side of Range Road 360:

 NE 32 is a full quarter section without any improvements.

 NW 33 is a quarter section that is bisected by the C&E trail.

o The west side of NW 33 consists of 95.91 acres and has no improvements.

o The east side of NW 33 consists of 57.01 acres, a portion of which of which is

developed.

[137] As with the Jackson lands, Mr. Doll opined that the highest and best use of the Wagers

lands was agricultural and as country residential with no realistic development potential within a

reasonable time frame. In coming to this conclusion, Mr. Doll considered that the Wagers’ lands

are situated within an area that is covered by the Red Deer County and Town of Innisfail

Intermunicipal Development Plan. This is a plan that is based on growth and development over

then next 100 years. Within the plan, the two westerly parcels of the Wagers’ lands are

designated as having future land use concepts as residential. The easterly parcel owned by the

Wagers is designated as having a future land concept as industrial.

[138] Mr. Doll testified that as part of his review he contacted the development officer for the

Town of Innisfail who explained that based on the current population of the Town, the land

within the town boundary is sufficient for 35 to 40 years. As a result, Mr. Doll believes that any

potential development is purely speculative.

[139] Mr. Doll estimated the fair market value of the 3 parcels of land at $5,200 per acre (NE

32), $5,000 per acre (W ½ NW 33) and $6,200 per acre (E ½ NW 33).

[140] In the opinion of Mr. Gettel, the current highest and best use of the three parcels is

agricultural and rural residential holding. However, he explained that the three parcels had

excellent appeal for both its current use as well as for future development. He went on to

provide further particulars:

... The improved property (Property 3) has excellent appeal as a well-located

hobby farm. The vacant properties (Properties 1 and 2) show appeal for both their

agricultural properties as well as their ability to support a single-family residence

in the interim. This is further magnified as it would be possible to pursue a first

parcel out subdivision. This provides a development opportunity that can be

pursued in the short term while the lands become ripe for a more intensive urban

type development over the longer term ...

Page: 28

[141] Mr. Gettel estimated the fair market value of the 3 parcels of land at $7,000 per acre (NE

32), $7,300 per acre (W ½ NW 33) and $9,000 per acre (E ½ NW 33).

[142] Prior to the SRB hearing, the parties reached an agreement regarding the value of the

lands at roughly the midpoint of the opinions expressed by Mr. Gettel and Mr. Doll. The

agreement was for fair market value to be $6,100 per acre, $6,150 per acre and $7,600 per acre.

Because this was a compromise agreement between the parties, I draw no inference as to whether

the value of the land implies any development potential.

[143] The agreement on value was accepted by the SRB at page 4 of its decision. As a result,

the SRB granted a compensation order that was based upon the values that the parties had agreed

to. There has been no appeal from that order. I therefore accept the values of the Wagers’ lands

as found by the SRB.

[144] The only opinion on the value of the improvements on the Wagers lands was given by

Mr. Gettel. He estimated the value of the improvements to be $1,266,784. There is no other

evidence. I accept Mr. Gettel’s opinion in relation to the improvements.

[145] Based on the agreements between the parties regarding the value of the lands, as accepted

by the SRB and also based on the opinion of Mr. Gettel regarding the value of the improvements,

I conclude that the total value of the three parcels of land owned by the Wagers is $3,260,003

calculated as follows:

Parcel

NE 32

Acres

158.97

95.91

57.06

Agreed Per Acre Value

$6,100

Improvements

Total

-

969,717

589,846

1,700,440

3,260,003

W - NW 33

E - NW 33

Total

$6,150

-

$7,600

$1,266.784

[146] To determine whether the power transmission lines have had any negative impact on the

value of the Wagers’ lands, it will be necessary to consider each parcel separately and to come to

a conclusion in relation to each parcel.

a) E ½ NW 33 – Developed Lands

[147] The E ½ NW 33 is a 57-acre parcel that currently has substantial development. The

parcel includes a 15-acre building site with three residences, two shops along with attached

garages and agricultural improvements. At paragraph 52 of its decision, the SRB described the

lands as being “the home to two industrial businesses including a heavy-duty mechanic shop and

a milk factory”.

[148] The Wagers’ residence is located on this parcel. The residence is approximately 650 feet

from the right of way. The power transmission lines can be seen from the residence.

[149] Structure 46 is one of the monopole steel towers that forms part of the AltaLink power

transmission line. Structure 46 is affixed to a caisson that was imbedded into the land on the

government road allowance. However, the southerly edge of the caisson protrudes into the lands

granted by the ROE Order by approximately 1 inch. The photographs of the location of

Structure 46 show the caisson situated immediately beside a barbed wire fence but to the naked

Page: 29

eye it is not possible to detect that the caisson protrudes into the right of way. However, the

evidence establishes that it does.

[150] Because Structure 46 is at least partially situated on the lands granted by the ROE Order,

the SRB concluded that this constituted “operations of the operator” on the area granted. For this

reason, it concluded that it had jurisdiction to undertake an assessment to determine whether

these operations negatively impacted the value of the remaining portion of E ½ NW 33 so as to

permit compensation for injurious affection.

[151] In its reasons at paragraph 52 the SRB concluded that with respect to E ½ NW 33 the

highest and best use of the lands is agricultural with a component of rural residential.

[152] Mr. Gettel and Mr. Doll testified before the SRB and before the Court regarding the

adverse effect on E ½ NW 33. Both experts presented reports to summarize their opinions.

[153] Mr. Gettel’s report outlined the concerns of the Wagers regarding the impact of the

power transmission lines as being negative visual impact, health and safety concerns, noise and

marketability issues/stigma. In coming to his opinion that the power transmission line had a 15%

negative impact on the value of E ½ NW 33, Mr. Gettel said at page 81 of his report:

The value diminution in this instance flows from the fact that the power line will

be developed +/- 200 meters north of the building site. We note that there is an

established shelterbelt along the northwest and west portions of the building site.

There will be an unobstructed view of the power line to the north and northeast of

the main residence. Although the lands have been designated for industrial use

over the longer term, given the extent of the improvements in place, we would

anticipate a continuation of the current use as a hobby farm over the longer term.

[154] Mr. Doll’s opinion was that the presence of the power transmission line had no impact on

the value of E ½ NW 33. He came to this conclusion because the transmission line was a

significant distance from the building site and, due to topographical features, it was at least

partially obstructed. Furthermore, Mr. Doll noted that the highest and best use of the lands was

as agricultural.

[155] At paragraphs 54 to 60, the SRB concluded that there was no injurious affection or

adverse effect to the remaining land as a result of the area granted to AltaLink by the ROE

Order. In undertaking its assessment, the SRB noted that:

 Mr. Gettel’s analysis ignored the fact that the lands had been developed to

include two industrial businesses including a heavy-duty mechanic shop and a

milk factory and thus, even prior to the installation of the power transmission

line the residence was subject to commercial/industrial traffic (paras 52 and

54)

 Any future development was not in the foreseeable future but the longer-term

plan was for industrial purposes (para 54).

 The residence is 650 feet away from the power transmission line and

 Mr. Gettel did not include in his report any analysis of potential health

concerns and thus there was no proven health risk (para 58)

 The noise from the 138 kV line is minimal, if at all (para 58)

Page: 30

 There were no demonstrated safety concerns (para 58)

[156] Ultimately the SRB concluded at para 59 that Mr. Doll’s evidence was more critical and

inclusive and thus his evidence was accepted. The SRB declined to make an award for injurious

affection.

[157] The conclusion of the SRB must be reviewed on a standard of palpable and overriding

error. The evidence tendered before the SRB and the evidence presented to the Court was

substantially the same. The findings of the SRB were supportable based on the evidence

presented. For this reason, there is no palpable and overriding error in the conclusion of the

SRB.

[158] When the SRB conclusion is considered with the totality of the evidence, it becomes

apparent that the facts support a conclusion that E ½ NW 33 has a highest and best use as

agricultural with a component of rural residential. But the developed portion of the land is being

used in a material way for industrial purposes. Furthermore, the long-term planning has

designated this land as “having a future land concept as industrial”. Mr. Gettel’s concern was

that the power transmission line gave the area an “industrial flavour”. Even accepting this

opinion, I conclude that the industrial flavour would have little if any impact on the value of

lands that are, in part, being used for industrial purposes and where the long-term development

prospects for the land is industrial.

[159] The Appellants argue that the SRB erred in considering only the impact that arose from

the 1-inch intrusion into the right of way for a distance of 2 to 3 feet. Instead, the Appellant

argues that the 1-inch intrusion into the right of way is sufficient to found jurisdiction and once

the SRB has jurisdiction it is mandated to assess the impact of the whole of the power

transmission line on the lands of the owner or occupant. I conclude that this criticism of the SRB

decision is not justified. It is apparent from reading the whole of the decision that the SRB

considered a broad range of factors in concluding that no injurious affection had been

demonstrated. These included the factors found at para 54 to 60 of the Wagers decision that I

have earlier discussed.

[160] There is no basis for overturning the conclusion of the SRB that the power transmission

line has no negative impact on the value of E ½ NW 33. The decision of the SRB was a proper

exercise of its discretion.

b) NE 32

[161] These lands are a full quarter section that consist of undulating and rolling lands with an

overall slope to the east. Except for some trees and wetland, the land is cultivated. The current

use of NE 32 is for agricultural purposes.

[162] Mr. Doll and Mr. Gettel agree that the highest and best use of the lands is agricultural

with a component of country residential. However, Mr. Gettel is also of the opinion that NE 32

can support a single-family residence through a first parcel out subdivision.

[163] As was the case with E ½ NW 33, Mr. Doll expressed the opinion that there is no

injurious affection in relation to NE 32, noting that lands used for agricultural purposes are not

affected by power transmission lines and that any future development is very long term and

speculative.

Page: 31

[164] Mr. Gettel is of the opinion that the injurious affection should be valued at 15% of the

property value. His reason for coming to this conclusion is as stated at page 80 of his report:

The value diminution in this instance flows from two key areas: the elimination of

a valuable rural residential building/subdivision site in the short term and the

impacts on the future urban residential use over the longer term. In considering

the longer-term development horizon of the subject lands, our focus is on the

impact of the power line on the first parcel out subdivision, the possibility of

which is effectively eliminated as a result of the power line.

[165] I conclude that the AltaLink power transmission lines constitute a nuisance because the

presence of the high voltage transmission lines on monopole steel towers immediately adjacent

to NE 32 are a substantial and unreasonable interference with the Wagers’ use and enjoyment of

their lands. This has had a negative effect on the value of this quarter section. In coming to this

conclusion, I consider that these lands are immediately adjacent to Innisfail. Furthermore, not

only was there the possibility of utilizing a portion of the lands as a building site and a first

parcel out subdivision, actual plans for this type of use had been made. The Wagers had planed a

subdivision of NE 32 to permit construction of a residence for one of their children. The

building site was to be near the northwest corner of the quarter very close to the only access

road. Since there is only one access road, the only realistic building sites would be near the

roadway and thus very close to the transmission lines. When the power transmission line was

installed the plans for that subdivision were cancelled. This is compelling evidence that the

power transmission lines do have a negative impact on the value of these lands.

[166] Mr. Gettel suggests a 15% decline in value. However, I conclude that this overstates the

injurious affection because a component of the 15% relates to the long-term use as urban

residential. This component is too far into the future to have any real impact on the value of the

lands and is speculative. Therefore, I conclude that the injurious affection should be assessed on

the basis only of the decline in value associated with the impact on a building site that would be

permitted by a first out subdivision. I assess this impact at 10% and thus the injurious affection

is assessed at $96,971 ($969,717 x 0.1).

c) W ½ NW 33

[167] This is an undeveloped parcel containing 95 acres. It is used for agricultural purposes.

The highest and best use of these lands is similar to NE 32.

[168] The opinion of Mr. Doll is that there is no negative impact on value because agricultural

lands are not impacted by the presence of power transmission lines.

[169] Mr. Gettel expressed the same opinion that he had in relation to NE 32. In his opinion

the diminution in value is based on two factors, the short-term potential for a building site and

the long-term future residential use. Mr. Gettel suggested that the loss in value would be 10%.

[170] I conclude that the AltaLink power transmission lines constitute a nuisance because the

presence of the high voltage transmission lines on monopole steel towers immediately adjacent

to the north of W ½ NW 33 are a substantial and unreasonable interference with the Wagers’ use

and enjoyment of the lands. I conclude that the power transmission line has had a negative effect

on value of the lands but that Mr. Gettel has over stated the impact. As was the case with NE 32

the long-term use as urban residential is too speculative to consider. Therefore, the only impact

arises from the potential of a building site and a first out subdivision.

Page: 32

[171] W ½ NW 33 has road access on two sides which increases the options for a first out

subdivision. Mr. Gettel identified one potential building site on this parcel which is located at

the far southeast corner of the site. I conclude that the power transmission line would have very

little impact on the value of this site because of the distance from the power transmission line

and because of trees between the site and the power transmission lines. However, all other

potential building sites on this parcel would be affected by the power transmission line.

[172] Access roads on two sides of W ½ NW 33 makes these lands more attractive for the

subdivision than NE 32. However, as noted by Mr. Gettel it also offers better opportunities to

buffer a building site from the line.

[173] Unlike NE 32 there is no evidence of actual plans having been abandoned due to the

construction of the power transmission line. Therefore, I conclude that the negative impact on

the value of W ½ NW 33 is 5%.

[174] I conclude that the proper compensation award for injurious affection should be assessed

at $29,492 ($589,846 x 0.05).

iv.

Garrison Lands

[175] The Garrison lands are 4.4 acres and thus much smaller in size than either the Jackson

lands or the Wagers lands. Mr. Gettel and Mr. Doll both agree that the highest and best use of

the Garrison lands is as a rural residential holding. These lands contain two homes and other

sheds and outbuildings. One of the homes is rented and the other is used as the primary

residence of Mr. and Mrs. Garrison.

[176] Using a comparison approach Mr. Gettel arrived at a value for the land at $200,000. Also

using a comparison approach Mr. Doll arrived at a value for the land at $235,000.

[177] Only Mr. Gettel valued the improvements on the Garrison lands. His opinion is that the

improvements have a depreciated value of $360,780.

[178] Overall Mr. Gettel arrived at a total market value for the land and the improvements at

$545,000. I would adjust this number upward by $20,000 to reflect a portion of the higher value

for the land that was arrived at by Mr. Doll. I therefore conclude that the fair market value of the

Garrison lands is $565,000.

[179] Mr. Doll provided a report dated October 1, 2021 that updated his previous opinions. At

page 8, he succinctly captured the factors that must be considered, and that influenced his

opinion in relation to the impact that the transmission lines have had on the value of the Garrison

lands. He said:

When considering property value impacts from the transmission line as a whole, it

is considered that there was a previous transmission line along the subject

property which the new line replaced. However, the new line is larger in height

and uses larger steel structures, which represents a change in both visibility,

appearance and clearance. There is some tree screening in place which would

obstruct a portion of the transmission line from view while on the subject

property, including from within the residences. The residences are approximately

80 meters, from the transmission line. It is also considered that occupants of the

property must travel under the line to access the residential site and that the

transmission line is on the same side of the road as the subject property.

Page: 33

However, the location of the line and proximity to the residences is identical to

the previous transmission line and therefore no incremental difference is

recognized due to these factors.

[180] Mr. Doll was of the opinion that the pre-existing line had a 5% negative impact on the

value of the Garrison lands and that the new double circuit 138kV line caused “an incremental

impact of up to 5%”.

[181] Mr. Gettel took the very same factors into account. However, in his opinion the overall

reduction in the value of the Garrison lands due to the transmission lines was 20%. Mr. Gettel

estimated that the pre-existing impact arising from the original single circuit 138 kV line was

10% and that the incremental impact of the new double circuit 138kV line was a further 10%.

[182] The two experts took the very same factors into account and arrived at different

valuations of the negative impact. It is not possible to point to any single factor that gave rise to

the difference of opinion. The difference is simply that in applying their subjective views to the

factors they arrived at different valuations.

[183] I do not accept the opinions of Mr. Doll and Mr. Gettel that the pre-existing line had

approximately the same negative impact on the value of the lands as the incremental impact of

the new line. As explained by Mr. Doll, the new line is much taller and the structures are larger

metal structures painted grey in colour. As earlier discussed, Mr. Gettel considered that these

new structures gave the area an “industrial flavour”. The power transmission lines are very close

to the Garrison home, within 75 to 80 metres. Furthermore, Christie Edgar a neighbor of the

Garrisons, testified that she could not even remember the pre-existing line. I accept the

genuineness of her answer in this regard. This answer is simply a reflection of the fact that in the

prairies of Alberta, the presence of wooden power poles has become woven into the fabric of the

landscape. It is almost impossible in rural prairie Alberta to drive any material distance without

seeing a series of wooden power poles. That is not so for the 30-metre monopole steel structures

with 3 cross-arms, all painted industrial grey. They are much more intrusive than the pre-existing

structures. They are a nuisance and represent a substantial and unreasonable interference with the

use and enjoyment of the lands.

[184] I conclude that the new AltaLink power transmission line had a material incremental

negative impact on the property value of the Garrison lands. I conclude that the 10% reduction

proposed by Mr. Gettel is a very conservative estimate. In the absence of other evidence

suggesting a greater impact, I accept his estimate.

[185] Thus, the compensation award that is properly payable to the Garrisons is $56,500

($565,000 x 0.1).

v.

Edgar Lands

[186] The Edgar lands consist of 10.79 acres and are immediately to the south of the Garrison

lands. Mr. Gettel and Mr. Doll both agree that the highest and best use of the Edgar lands is as a

rural residential holding. The lands contain the Edgar home which is situated on the westerly

portion of the lands closest Range Road 10 and the power transmission lines. A garage is

attached to the home and a large Quonset style shop is also on the lands. The perimeter is

bordered on the west side of the property by approximately 35 trees that were planted

strategically to act as a buffer from the pre-existing power transmission line.

Page: 34

[187] Using a comparison approach Mr. Gettel arrived at a value for the land at $217,900. Also

using a comparison approach Mr. Doll arrived at a value for the land at $245,000.

[188] Only Mr. Gettel valued the improvements on the Edgar lands. His opinion is that the

improvements have a depreciated value of $482,636.

[189] Overall Mr. Gettel arrived at a total market value for the land and the improvements at

$710,000. I would adjust this number upward by $10,000 to reflect a portion of the higher value

for the land that was arrived at by Mr. Doll. I therefore conclude that the fair market value of the

Garrison lands is $720,000.

[190] Using precisely identical language as he used in relation to the Garrison lands, Mr. Doll

was of the opinion that the new double circuit 138kV line caused “an incremental impact of up to

5%”. As was the case with the Garrison lands, Mr. Doll felt that the pre-existing line had a 5%

negative impact on the value of the Edgar lands.

[191] Mr. Gettel noted that the Edgar home was only 30 metres from the transmission line,

which is much closer than the Garrison home is to the lines. Using the same approach as he used

in relation to the Garrison home but noting the closer proximity of the Edgar home to the

transmission lines, Mr. Gettel concluded that the overall negative impact of the transmission

lines on the Edgar property value was 25%. He concluded that the original line contributed 10%

and that the incremental negative impact of the new transmission line was 15%.

[192] As was the case with the Garrison lands, the opinions of the two experts is purely

subjective in nature.

[193] For the reasons given in relation to the Garrison lands, I do not accept the opinions of the

experts in relation to the relative impact of the pre-existing power lines.

[194] The photographs contained in Exhibit 7, tab 1 consist of a series of photographs taken

from inside the living room of the Edgar home. These photos clearly demonstrate that when

looking out the living room window of the home the steel monopole towers dominate the view.

The are extremely obtrusive. They are a nuisance and represent a substantial and unreasonable

interference with the use and enjoyment of the lands.

[195] I conclude that the new AltaLink power transmission line had a material incremental

negative impact on the value of the Edgar lands. I conclude that the 15% reduction proposed by

Mr. Gettel is a very conservative estimate. In the absence of other evidence suggesting a greater

impact, I accept his estimate.

[196] Thus, the compensation award that is properly payable to the Garrisons is $108,000

($720,000 x 0.15).

vi.

Compensation - Summary

[197] I conclude that the proper compensation awards in relation to these Appellants should be

in the following amounts:

Jackson

$77,500

0

Wagers – E ½ NW 33

Wagers – NE 32

Wagers – W ½ NW 33

$96,971

$29,492

Page: 35

Garrison

Edgar

$56,500

$108,000

[198] In accordance with s 26(7)(c)(ii) of the Act I direct that the compensation orders be varied

in accordance with these reasons.

C. Appeal of the SRB Costs Award

[199] The Appellants (other than the Sabos whose claim for costs was reserved at the SRB)

argue that the SRB erred when it failed to award indemnity costs in relation to the compensation

hearings. In making the costs award, the SRB concluded that:

 The costs for the attendance of the parties at the hearings was directed to be

reimbursed at the rate of $50 per hour which is the rate that is typically

awarded by the SRB. The rates submitted by the Appellants had been $100

per hour.

 With respect to the Garrisons and the Edgars, the professional legal fees

awarded represented 25% of the actual fees charged by counsel.

 With respect to Wagers and the Jacksons, the professional legal fees awarded

were reduced by 50% for all entries after November 21, 2018, other than the

counsel fee for attendance at the hearing. In addition, the fees of the expert,

Mr. Gettel in relation to his first invoice in 2016 was reduced by 50%.

[200] The Appellants acknowledge that the award of costs pursuant to s 39(1) is at the

discretion of the SRB. However, the Appellants argue that when exercising its discretion, the

SRB must act reasonably and in a manner consistent with the law. The Appellants argue that the

SRB failed to do so, and they assert that an award of full indemnity costs should be made.

[201] AltaLink argues that this appeal is brought pursuant to s 26 of the Act which permits an

appeal to the Court of Queen’s Bench only in relation to a “compensation order” specifically in

relation to the “amount of compensation payable ...”. A compensation order is made pursuant to

s 23 of the Act based on the factors outlined in s 25 of the Act.

[202] AltaLink argues that because an award of costs is made by the SRB pursuant to s 39, it is

not part of the “compensation order.” Therefore, costs do not fall under the scope of what may be

the subject of an appeal. AltaLink therefore argues that the Court does not have jurisdiction to

consider an appeal from an award of costs. In support of its submissions, AltaLink cites

Bergman v Francana Oil and Gas Ltd., (1985) 59 A.R. 281 (ABCA), Singh v Penn West

Petroleum, 2016 ABQB 134 and Thompson v AltaLink Management Ltd., 2018 ABQB 36.

[203] In Bergman, the Court of Appeal considered an earlier version of the Act and concluded

that there was no right of appeal to the Court of Queen’s Bench from a cost award by the SRB

because costs do not form part of the “compensation award” that can be subject to appeal. In

coming to this conclusion, the Court at para 7 explained that an award of costs made by the SRB

was intended to be governed by the code set out in s 33 (now s 39). Justice Stevenson explained

that the costs provisions in the Act:

... creates a discretionary system and it is not surprising to find that a discretionary

costs order is free from appellate review. I am not saying that the denial of a right

Page: 36

of review is a universally sound practice, I simply say that the interpretation of the

judge does not produce any manifest absurdity.

[204] It should be noted however that in Bergman, the Court was considering a stand-alone

appeal from a costs award by the SRB. This is much different than the present case which

involves a successful appeal of a compensation award.

[205] Bergman was considered and applied by Justice Renke in Singh where the SRB granted

a compensation order but reserved its decision on costs. Dr. Singh brought an appeal from the

compensation order, but the Respondent applied to strike the appeal on the basis that the appeal

had been filed out of time. Dr. Singh attempted to argue that the appeal period had not expired

because the costs award was still outstanding. Following Bergman, Justice Renke concluded

that the costs award was not part of the compensation order and that the appeal period in relation

to the compensation order had expired. The appeal was struck. Although no costs award had

been made by the SRB and thus there was no appeal from a costs award, Justice Renke observed

that, following Bergman, any costs award could not be the subject of an appeal.

[206] Thompson v AltaLink also dealt with a situation where the SRB made a compensation

award but reserved the costs award. The landowner filed an appeal outside of the statutory

appeal period and AltaLink brought an application to strike the appeal. Justice Bast relied on

Bergman and Singh and concluded that costs do not form part of a “compensation order” within

the meaning of the Act. As a result, the appeal had been filed out of time and it was struck.

[207] In Zajes v PanCanadian Petroleum Ltd., [1989] A.J. No. 251 (ABQB), a landowner

brought an appeal from a decision of the SRB on several grounds, all of which were

unsuccessful. In addition to his other grounds of appeal, the landowner sought to appeal the

costs award made by the SRB but Justice Trussler dismissed the costs appeal, relying on

Bergman.

[208] In his 1987 paper presented to the Mid Winter Meeting of the Canadian Bar Association,

B. O’Ferrall (now O’Ferrall J.A.) observed at page 59 that Bergman has not been consistently

followed, perhaps because the privative clause that existed in the version of the Act that

Bergman considered has now been removed and no longer forms part of the Act.

[209] I conclude that Bergman continues to be good law today and, as a decision of the Court

of Appeal, it is binding and must be followed. However, I also conclude that Bergman does not

have the broad application that AltaLink advocates. Clearly, Bergman stands for the proposition

that there is no stand-alone appeal from a costs decision of the SRB, which was the fact situation

dealt with in Bergman. Furthermore, as in Zajes, where a costs appeal is brought in conjunction

with an appeal from a substantive decision of the SRB then, if the substantive grounds of appeal

are not successful, there can be no appeal from the costs decision of the SRB. This would

effectively amount to a stand-alone costs appeal after the other grounds had fallen.

[210] However, I conclude that Bergman does not prevent an appeal from the SRB costs

decision in the present circumstances. In this case, unlike Bergman, a successful appeal was

brought from a compensation award by the SRB. But perhaps most significantly, one of the

grounds for denying the landowner indemnity costs was that the Appellants persisted in

advancing a claim for injurious affection in circumstances where the SRB had previously

determined that it did not have the jurisdiction to make the award. In the view of the SRB this

led to significant time spent by the Appellants’ lawyers researching the law in relation to the

Page: 37

interpretation of s 25(1)(d) in a way that the SRB considered to be unnecessary and unhelpful

because the law had previously (but incorrectly) been clarified. As was noted in the Wagers’

decision at para 76: “this Panel is reluctant to consider costs in relation to a previously decided

issue”. See also the Garrison decision at para 75.

[211] Therefore, the very basis on which the appeal has been allowed was one of the grounds

the SRB used to deny the Appellants an award of indemnity costs. For this reason, I conclude

that the costs decision of the SRB is inexplicably and directly tied to the error it made in the

compensation decision. Thus, the error made in the compensation order infected the costs

decision with that very error. In these circumstances I conclude that a costs award can be the

subject of an appeal pursuant to s 26 of the Act.

[212] I find the SRB made a palpable and overriding error in relation to the costs decision. As

a result, s 26(7) of the Act requires that I consider the issue of costs de novo and determine

whether the costs award should be varied. In conducting this analysis, I must exercise the

powers and jurisdiction of the SRB.

[213] An award of costs is an exercise of discretion by the SRB. This is made clear by s 39(1)

of the Act. I am required to exercise a discretion in awarding costs but I must act judicially in

exercising that discretion. When exercising the discretion in relation to costs, it is appropriate to

consider and apply the Rules that the SRB has implemented in relation to costs. Such Rules are

specifically authorized in s 8(2) of the Act. It is also appropriate to consider some of the

concerns expressed by the SRB in making its decisions to reduce the amount of the costs award.

[214] Before assessing the amount of costs that should be payable to the Appellants, it is first

necessary to distinguish costs in the surface rights context from costs awards routinely made in

civil litigation. In Alberta, the weight of authority is that party and party costs in civil litigation

should normally represent partial indemnification and is intended to accomplish the balance

between fully compensating successful parties (on the one hand) and the chilling effect on parties

bringing or defending claims if the unsuccessful party has to bear too heavy a costs burden (on

the other hand): McAllister v City of Calgary, 2021 ABCA 25 at para 41 to 45.

[215] Different considerations apply in relation to costs in the surface rights context where an

interest in the land is taken from a landowner in circumstances where they have no choice. The

only issue is how much they should be paid for the taking. The landowner whose lands are

subject to a ROE Order is entitled to appear before the SRB with counsel and to make

submissions in relation to the amount of compensation that is payable. Sub-section 39(1)

permits the SRB to award costs of the proceedings before the SRB and for those expenses that

are incidental to the proceedings. Sub-section 39(4) also permits the SRB to permit recovery of

all preliminary costs associated with reaching a decision as to whether to accept an offer of

compensation made by the operator.

[216] The SRB has broad discretion as to the amount of the costs to be awarded. These costs

can often amount to full indemnity costs. However, that is not always the case. The SRB, in the

exercise of its discretion, is still required to consider the reasonableness of the charges that give

rise to the claim for costs. The SRB has made it clear that a landowner does not have “carte

blanche” with respect to the costs that he or she may incur. The costs must be reasonable, or

they will be adjusted by the SRB. This is entirely within the discretion of the SRB.

Page: 38

[217] In relation to the present Appeals, the SRB gave detailed reasons for why it would adjust

the costs. It did award full indemnity costs in relation to some portions of the charges that the

Appellants incurred but for many of the charges significant adjustments were made. Those

adjustments were made for several reasons that can be broadly summarized as:

 The professional legal fees were unreasonable because the primary issue

before the SRB was whether compensation for injurious affection could be

awarded in circumstances where the operations of AltaLink were entirely

within the government road allowance, an issue that was previously decided

by the SRB;

 An unreasonable amount of legal research was undertaken which was

unnecessary in the context of an issue that had previously been decided by the

SRB;

 The invoices of counsel demonstrated duplication of services across clients;

 Some of the time entries for senior counsel related to work that could have

been undertaken by junior counsel at a lesser rate or by administrative staff;

and,

 The overall costs associated with the Edgar and Garrison hearings were

simply too great.

[218] I conclude that the SRB correctly exercised its discretion when it reduced the

reimbursement of charges for the Appellants to attend the hearings. The SRB is familiar with its

own past practices and has a history of compensating for the time of the landowners at a rate of

$50 per hour. There is no reason to increase that rate to $100 per hour that was claimed by the

Appellants. Like the SRB, I would adjust this portion of the costs award to reduce the rate to

$50 per hour.

[219] However, I conclude that there is no justification to reduce the claim for professional fees

charged by counsel or to reduce the fees of the expert, Mr. Gettel. I come to this conclusion for

the following reasons:

 These cases were complex and challenging for the landowners before the

SRB. The complexity arose because the provisions of s 25(1)(d) lack

precision and the interpretation of the subsection was not immediately

obvious.

 The Appellants faced an “uphill battle” to attempt to overcome the prior

decisions of the SRB that were contrary to the position advocated by the

Appellants.

 The amount of time that can be justified to undertake research in relation to a

statutory provision that has clarity, and which has been the subject of much

judicial consideration might be relatively small. However, where a claimant

feels that a tribunal has consistently misinterpreted an obtuse statutory

provision and where that misinterpretation may materially affect the

compensation that it might be awarded at the hearing, a Court should not

second guess the judgment of counsel in terms of the amount of research time

that is required to properly present and advocate the alternate interpretation.

Page: 39

 I agree that, on the surface, there appears to be a significant duplication in

relation to the legal services provided to the four sets of Appellants. The most

significant duplication is demonstrated by examining essentially identical

invoices that were sent to the Garrisons and the Edgars on May 7, 2018, May

28, 2018 and June 1, 2018. But this is not nefarious. It is simply an

indication that the Edgars and the Garrisons agreed to split the fees charged by

a single counsel retained by both in relation to issues that were essentially

identical. This appears to be a duplication, but it is not. Other areas of

duplication also exist but these are to be expected when representing 4 sets of

clients in relation to appeals that raise the very same issues. These

duplications are minor and do not have a material impact on the overall

charges.

 In relation to the present appeals, the SRB did not challenge the hourly rates

charged by the lawyers, and neither do I.

 The SRB correctly took a broad view and examined the overall amount of the

professional fees and disbursements associated with the Edgar and Garrison

claims for costs. At para 22 the SRB said:

However, over $70,000 in legal costs for two

straightforward compensation reviews sharing a singular

legal issue, which has been considered, consistently, by the

Board in at least three decisions, is plainly excessive …

I agree that $70,000 in legal costs for two straightforward hearings would be

plainly excessive. However, these were anything but straightforward

compensation hearings. They involved asking the SRB to depart from its

earlier interpretations of a statutory provision that had a meaning that was far

from clear.

I conclude that even with the complexities associated with the interpretation

of s 25(1)(d), $70,000 in fees and disbursements would represent the far outer

edge of the zone of reasonableness. However, I conclude that in the

circumstances of this case, the charges are not unreasonable.

I conclude that it was a serious error to reduce the claim for the costs of the

Edgars and the Garrisons by 75%. I conclude that no reduction is required.

 With respect to the invoices of the expert Mr. Gettel in relation to the Edgars

and the Garrisons, the SRB directed that the second invoice was to be divided

between the two files. The invoice in question is dated June 8, 2018 and is

identified as “Invoice 6031”. A copy of the invoice appears on both cost

claim files. It therefore appears that this was a single invoice and the SRB

correctly concluded that it should be shared between the files so as to avoid

double recovery.

 The SRB reduced the recovery for the legal fees in relation to the Jacksons

and the Wagers by 50% for all charges subsequent to November 21, 2018

(other than attendance at the hearing). November 21, 2018 coincided with the

date of a Calderbank offer made by AltaLink that was not accepted. While

Page: 40

the SRB did not directly reduce the charges due to the Calderbank offer, it

seems that this heavily influenced the decision on costs. Reduction for the

Calderbank offer would not be appropriate in light of the outcome of this

appeal

 The professional legal fees and disbursements to the Jacksons totaled

$22,693.19. This is considerably less than the charges to either the Garrisons

or the Edgars. However, the Jackson hearing took place after that of the

Garrisons and the Edgars and thus much of the legal research conducted for

the earlier hearing did not need to be repeated. I am satisfied that when

viewed broadly there is nothing to suggest that these fees and disbursements

are unreasonable. I conclude that the Jacksons should have cost recovery on a

full indemnity basis for their professional legal fees and disbursements.

 The professional legal fees and disbursements to the Wagers totaled

$20,498.35. As was the case with the Jacksons, I am satisfied that these fees

are reasonable and recoverable on a full indemnity basis.

 The SRB reduced the April 2016 charges of Mr. Gettel by 50%. By doing this

the SRB accepted the submissions of AltaLink at para 7 of its Brief dated June

7, 2018. In that Brief AltaLink submitted that the April 2016 charges by Mr.

Gettel should be reduced by 50% because “it was not reasonable for Mr.

Gettel to have been retained to prepare an analysis of injurious affection”.

However, in light of my conclusion that compensation for injurious affection

is recoverable, this reduction made by the SRB is in error. I conclude that it is

appropriate for there to be recovery for 100% of Mr. Gettel’s April 2016

charges in addition to the charges for his 2018 invoice which the SRB

approved.

 The SRB denied recovery for the drone videos of the properties. The SRB

considered that these were “entirely unnecessary as it did not prove any

element of the claims” (Jackson reasons at para 72). See also Wagers reasons

at para 83. I am satisfied that the cost of this demonstrative evidence should

be recoverable. The videos may not have been of any value to the SRB

because of its view in relation to the injurious affection. However, to prove

the injurious affection claim the videos had some value because it provided a

perspective that was not achievable simply from still photos. The amounts

charged are reasonable and are recoverable.

[220] As a result, I conclude that the Appellants should have full indemnity costs for all items

apart from the charges of the individual Appellants to attend at the hearing. Those charges

should be based on a rate of $50 per hour as directed by the SRB.

[221] For these reasons, in accordance with s 26(7)(c)(ii) of the Act I direct that the costs orders

be varied in accordance with these reasons.

Page: 41

5. COSTS OF APPEAL

[222] Subsection 26(7)(d) of the Act requires that the Court give directions with respect to the

costs of the appeal in accordance with subsection 26(9). Since the appeal has been successful,

costs of the appeal are payable to the Appellants based on the lawyer’s charges to the client.

6. CONCLUSION

[223] I conclude that the construction of the AltaLink 138kV double circuit transmission lines

with 30 metre steel monopole towers that were placed immediately adjacent to the lands of the

Appellants, in all but one case, constitute a nuisance and have a negative impact on the value of

the lands. I conclude that the SRB erred when it concluded that it had no jurisdiction to award

compensation for injurious affection.

[224] For the reasons given, I conclude that the proper compensation awards are as follows:

Jackson

$77,500

0

Wagers – E ½ NW 33

Wagers – NE 32

Wagers – W ½ NW 33

Garrison

$96,971

$29,492

$56,500

$108,000

Edgar

[225] I make no award of compensation in relation to the Sabo lands. That compensation

award will be determined in another forum.

[226] The Appellants are entitled to costs both before the SRB (as describe earlier in these

reasons) and on appeal.

Heard on the 18^thto the 22^nddays of October, 2021.

Written Submissions received on November 19, 2021, December 10, 2021 and December 17,

2021.

Dated at the City of Red Deer, Alberta this 23^rdday of February, 2022.

John T. Henderson

J.C.Q.B.A.

Page: 42

Appearances:

Jack N. Agrios, O.C., Q.C.

for the Appellants Dean Sabo and Teresa Sabo

Debbie Bishop

For the Appellants

Kenneth Allan Wagers, Jill Wagers

Robert John Garrison, Penny Louise Garrison

Darrell W. Edgar, Christine L. Edgar

Timothy Earl Jackson, Danna Lynn Melnyk,

Brent Jackson, Sandra Patricia Jackson and

Mark Andrew Jackson

John Kosolowski, Q.C. and Fiona Ellington

for the Respondent AltaLink Management Ltd.

No Appearance

for the Alberta Surface Rights Board

Page: 43

_______________________________________________________

Corrigendum of the Reasons for Decision

of

The Honourable Mr. Justice John T. Henderson

_______________________________________________________

There was an error in one of the Red Deer File numbers. File number “1901 01080” has been changed

to File number “1910 01080”.