British Columbia Hydro & Power Authority v. Westcoast Transmission Co. Ltd. et al., (1981) 36 N.R. 33 (FCA)

• Judge: Thurlow, C.J., Pratte and Urie, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 19, 1981
• Jurisdiction: Canada (Federal)
• Citations: (1981), 36 N.R. 33 (FCA)

B.C. Hydro v. Westcoast Transmission (1981), 36 N.R. 33 (FCA)

MLB headnote and full text

British Columbia Hydro and Power Authority v. Westcoast Transmission Company Limited, British Columbia Petroleum Corporation, Inland Natural Gas Co. Ltd., Peace River Transmission Company Limited, Canadian Petroleum Association, Amoco Canada Petroleum Company Ltd., Dome Petroleum Limited, Mobil Oil Canada, Ltd., Pan-Alberta Gas Ltd., Pancanadian Petroleum Limited, Shell Canada Resources Limited, Canada Cement Lafarge Ltd., Cominco Ltd., Consumers Glass Company, Limited, Domglas Ltd., Council of Forest Industries of British Columbia, Dow Chemical of Canada, Limited, Hiram Walker & Sons Ltd., Independent Petroleum Association of Canada, Union of British Columbia Indian Chiefs, Foothills Pipe Lines (South Yukon) Ltd., Foothills Pipe Lines

(Yukon) Ltd., Transcanada Pipelines Limited, Alberta Petroleum Marketing Commission, Attorney General of British Columbia, Greater Kamloops Chamber of Commerce, and Fort Nelson Gas Limited

Indexed As: British Columbia Hydro & Power Authority v. Westcoast Transmission Co. Ltd. et al.

Federal Court of Appeal

Thurlow, C.J., Pratte and Urie, JJ.

January 19, 1981.

Summary:

This case arose out of applications to the National Energy Board by Westcoast Transmission Company Limited for orders approving its proposed tolls. B.C. Hydro, one of the principal customers of Westcoast's pipe line operation, appealed from the Board's order. The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 9101

Boards and tribunals - Jurisdiction - Judicial review - General - The National Energy Board rendered a decision on the approval of the proposed tolls by a gas pipeline company, considering the issues of normalization of income tax, rate of return, rate base, depreciation acceleration and the effect of the looping of a portion of the company's line - The Federal Court of Appeal dismissed an appeal from the decision on the ground that the issues decided by the Board were all within its jurisdiction and should not be disturbed in the absence of the Board making its decision on clearly irrelevant considerations or committing an error of law.

Income Tax - Topic 1188

Income from business or property - Deductions - Capital cost allowance - Crossover - Defined - The Federal Court of Appeal defined "crossover" as the point in time at which capital cost allowance, which may be claimed in respect of the capital assets used in the operation, equal normal depreciation on the assets - See paragraphs 23 to 35.

Cases Noticed:

Northwestern Utilities Limited et al. v. City of Edmonton, [1979] 1 S.C.R. 684; 23 N.R. 565, dist. [para. 16].

Trans Mountain Pipe Line Co. Ltd. v. National Energy Board, [1979] 2 F.C. 118, 29 N.R. 44, appld. [para. 18].

Canadian Pacific Railway Company et al. v. The Board of Trade of the City of Regina (1911), 45 S.C.R. 321, appld. [para 19].

Canadian National Railways Company v. The Bell Telephone Company of Canada et al., [1939] S.C.R. 308, appld. [para. 19].

Union Gas Company of Canada Limited v. Sydenham Gas & Petroleum Co. Ltd., [1957] S.C.R. 185, appld. [para. 19].

Memorial Gardens Association (Canada) Limited v. Colwood Cemetery Company et al., [1958] S.C.R. 353, appld. [para. 19].

Northwestern Utilities Ltd. et al. v. Edmonton, [1929] S.C.R. 186, appld. [para. 19].

Northwestern Utilities Ltd. et al. v. Edmonton, [1961] S.C.R. 392, appld. [para. 19].

Northwestern Utilities Ltd. et al. v. Edmonton, [1979] 1 S.C.R. 684; 23 N.R. 565, appld. [para. 19].

Consumers Association of Canada et al. v. Hydro Electric Power Commission of Ontario et al. (1974), 2 N.R. 467, appld. [para. 20].

Public Systems et al. v. Federal Energy Regulatory Commission, 606 F. 2d 973 (1979), refd to. [para. 28].

City of Edmonton et al. v. Northwestern Utilities Ltd., [1961] S.C.R. 392, refd to. [para. 53].

CPR v. Toronto Transportation Commission, [1930] A.C. 686, dist. [para. 86].

Re Consumers' Gas Co. et al. and Public Utilities Board (1971), 18 D.L.R.(3d) 749, dist. [para. 86].

Statutes Noticed:

National Energy Board Act, R.S.C. 1970, c. N-6, sect. 2 [para. 12]; sect. 50, sect. 51.1, sect. 52, sect. 53, sect. 54 [para. 11]; sect. 61 [para. 14].

Counsel:

Y.A. George Hynna, for B.C. Hydro and Power Authority and Cominco et al.;

K.C. MacKenzie, for Attorney General of British Columbia;

P.G. Griffin, for National Energy Board;

John McAlpine, for Westcoast Transmission;

John W. Lutes, for Foothills Pipelines, et al.;

J.J.L. Hunter and P.G. Sanderson, for B.C. Petroleum.

This case was heard on October 7-10 and 14-17, 1980, at Vancouver, B.C., before THURLOW, C.J., PRATTE and URIE, JJ., of the Federal Court of Appeal.

On January 19, 1981, THURLOW, C.J., delivered the following judgment for the Federal Court of Appeal: