Alberta Utilities Commission

The Alberta Commission found that TransAlta had in fact timed the outage of its coal-fired generating plants on the basis of market conditions rather than the need to safeguard life, property or the environment as provided for in article 5.2 of the Power Purchase Arrangements. The findings related to four dates- November 19, 2010 for the Sundance 5 plant, November 23, 2010 for the Sundance 2 plant, December 13-16, 2010 at Sundance 2 plant, the Keephills 1 plant and Sundance 6 plant and February 16, 2011 at the Keephills 2 plant. The Commission concluded that TransAlta could have done the work during off-peak hours but instead chose to use peak or super peak hours to maximize the price and benefit its own portfolio. The most important finding in the decision dealt with the interpretation of section 2 of the Fair, Efficient and Open Competition Regulation5. There were two important issues. First, in demonstrating anticompetitive conduct, is it necessary that the MSA prove that TransAlta intended to limit competition? Second, did the MSA have to prove the extent to which competition had actually been lessened? The Alberta Utilities Commission relied on the Federal Court of Appeal's decision in Canada Pipe6 and the Alberta court's decision in Royal LePage7 to conclude that direct evidence of subjective intent was not required and that in establishing anticompetitive intent the Commission could rely on the fact that corporate actors intended the consequences of their actions. The Commission also found that section 2 created a per se offense rather than a rule of reason offense in that section 2 does not require assessment of the economic effects resulting from the conduct. In short, the prescribed conduct is anticompetitive in and of itself without assessing the economic effects of that conduct. Once the Commission found that the charging section was a per se offence, the MSA 's chance of success in the case improved substantially.