Although the taxpayer ("ATCO") continued to be the legal owner of a plant, the effect of the agreements between it and the Alberta government were that all the benefits and all the burdens that arose from the ownership thereof rested with the "Balancing Pool" of the Alberta government, so that it became the beneficial owner of the plant. Rossiter ACJ stated (at para. 69):
At the end of the day, what ATCO had left was really the fees to operate the plant pursuant to the [Operating Agreement] and if it was not sold and did not operate on its own, it would decommission the plant at its own cost. All the benefits, and all the burdens that arise from the ownership rested throughout, from January 1, 2001 onward with the Balancing Pool. The Balancing Pool had all the decision making power with respect to all operations of the plant, how it was to be operated, what expenditures were to be made, what the output was going to be, to whom and when it was going to be sold, and what the selling price would be to a third party. There were certainly some clauses in the agreement of sale with the third party which tied in the Appellant, but that was because a) the Appellant was still the legal title holder of the plant and b) the Appellant operated the plant to and for the benefit of the Balancing Pool.