Cape Breton Explorations Ltd. v. Nova Scotia (Attorney General) et al., 2015 NSCA 35

• Judge: Saunders, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 10, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 35;(2015), 357 N.S.R.(2d) 376 (CA)

Cape Breton Explorations v. N.S. (A.G.) (2015), 357 N.S.R.(2d) 376 (CA);

    1127 A.P.R. 376

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.017

Cape Breton Explorations Ltd. (appellant) v. The Attorney General of Nova Scotia, Nova Scotia Power Incorporated, and The Nova Scotia Utility and Review Board (respondents)

(CA 416544; 2015 NSCA 35)

Indexed As: Cape Breton Explorations Ltd. v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

Saunders, Farrar and Bryson, JJ.A.

April 10, 2015.

Summary:

Nova Scotia Power Inc. (NSPI) applied to the Nova Scotia Utility and Review Board for approval of a $93 million capital expenditure for independent power producing projects in which Cape Breton Explorations Ltd. (CBEx) was an unsuccessful bidder. The Board's approval of the investment as a capital expenditure allowed NSPI to include the $93 million in the rate base to recover the amount from ratepayers. NSPI sought confidential treatment of a large volume of documents filed with its application. The Board approved the confidentiality of most of the information. CBEx appealed the approval decision and argued that the Board erred in ordering that the information remain confidential. NSPI applied for an order that the information remain confidential on the appeal.

The Nova Scotia Court of Appeal, in a judgment reported (2013), 337 N.S.R.(2d) 271; 1067 A.P.R. 271, held that it had jurisdiction to grant the confidentiality order sought. However, the court remitted the issue of confidentiality of information at the hearing of the application to the Board, as the Board's perfunctory reasons for granting a confidentiality order were not apparent and did not permit meaningful appellate review. Once the expanded reasons were provided, NSPI could bring a confidentiality motion respecting the appeal before a Chambers judge. NSPI moved for a confidentiality order pending the appeal.

The Nova Scotia Court of Appeal, in a judgment reported (2014), 345 N.S.R.(2d) 395; 1092 A.P.R. 395, allowed NSPI's motion and issued the requested confidentiality order pending the hearing of the appeal to preserve the status quo. Now at issue was: (1) whether the Board erred in approving the investment as a capital expenditure; and (2) whether the Board erred in treating the documents filed in support of NSPI's application as confidential.

The Nova Scotia Court of Appeal allowed the appeal in part. The Board's decision to approve the investment as a capital expenditure was unreasonable. However, the Board's decision on the confidentiality of documents was reasonable.

Courts - Topic 1443

Administration - Documents filed by parties - Public right of access - General - [See Evidence - Topic 3007 ].

Evidence - Topic 3007

Documentary evidence - Confidentiality orders - General - Nova Scotia Power Inc. (NSPI) obtained approval from the Nova Scotia Utility and Review Board to treat a $93 million investment in two independent power producing projects as a capital expenditure, which permitted NSPI to recoup the investment from ratepayers - Cape Breton Explorations Ltd. (CBEx), an unsuccessful bidder on the project, appealed the Board's decision to treat a large number of NSPI documents filed in the application as confidential - CBEx did not object to the confidentiality of the documents at any point before or during the hearing - The Nova Scotia Court of Appeal dismissed the confidentiality order appeal - The Board's decision not to entertain the untimely objection to the confidentiality order (made for first time at post-hearing submissions), was reasonable - In any event, based on its supplemental reasons on the issue as requested by the court, the decision to afford confidentiality to the documents was reasonable - See paragraphs 152 to 165.

Public Utilities - Topic 4530

Public utility commissions or corporations (incl. private providers) - Practice and procedure - Evidence - Confidentiality - [See Evidence - Topic 3007 ].

Public Utilities - Topic 4670.1

Public utility commissions or corporations (incl. private providers) - Regulation - Rates - Capital expenditures (incl. inclusion in rate base) - Nova Scotia Power Inc. (NSPI) invested $93 million in a renewable power project undertaken by contract by an independent power producer (IPP) - NSPI had 49% of the voting shares of the IPP - The Nova Scotia Utility and Review Board approved the investment as a capital expenditure, which allowed NSPI to include the $93 million in the rate base to recoup the amount from ratepayers - The Nova Scotia Court of Appeal allowed an appeal from that approval decision - The Board erred in interpreting the legislative scheme respecting renewable energy, particularly s. 4(b)(13) of the Electricity Act and ss. 2(f) and 35 of the Public Utilities Act - This resulted in the Board's unreasonable decision that the investment could be included in the rate base - Section 4(b)(13) permitted NSPI to recover from its rate base the cost of procuring electricity from an IPP, but not its capital costs for any investment it made with an IPP - The Board erred in interpreting the definition of "service" in s. 2(f) - As a result, an application under s. 35 for capital expenditure approval was not triggered because the IPP, not NSPI, was providing the utility "service" - There was no "service" provided by NSPI arising solely from its 49% ownership of the project - Voting shares in the IPP could not be included in the rate base - See paragraphs 42 to 150.

Cases Noticed:

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 41].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 48].

Nova Scotia Power Inc., Re, 2010 NSUARB 128, refd to. [para. 129].

Nova Scotia Power Inc., Re, 2006 NSUARB 23, refd to. [para. 130].

Nova Scotia Power Inc., Re, 2008 NSUARB 74, refd to. [para. 130].

Statutes Noticed:

Electricity Act, S.N.S. 2004, c. 25, sect. 4B(1), sect. 4B(7), sect. 4B(9), sect. 4B(10) [para. 55]; sect. 4B(12) [para. 54]; sect. 4B(13) [para. 51].

Electricity Act Regulations (N.S.), Renewable Energy Regulations, Reg. 165/2010, sect. 3(1) [para. 62]; sect. 6(1), sect. 6(2) [para. 60].

Public Utilities Act, R.S.N.S. 1989, c. 380, sect. 2(e)(iv) [para. 70]; sect. 2(f)(iii) [para. 71]; sect. 7(3) [para. 116]; sect. 35 [para. 68].

Renewable Energy Regulations - see Electricity Act Regulations (N.S.), Renewable Energy Regulations.

Utility and Review Board Act, S.N.S. 1992, c. 11, sect. 12 [para. 155].

Counsel:

Richard Stephenson and Michael Fenwick, for the appellant;

Daniel M. Campbell, Q.C., and Jack Townsend, for the respondent, Nova Scotia Power Inc.;

Richard Melanson, for the respondent, Nova Scotia Utility and Review Board;

Edward Gores, Q.C., for the respondent, Attorney General of Nova Scotia.

This appeal was heard on December 10, 2014, at Halifax, N.S., before Saunders, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On April 10, 2015, Farrar, J.A., delivered the following judgment for the Court of Appeal.