Conception Bay South (Town) et al. v. Board of Commissioners of Public Utilities (Nfld.) et al., (1991) 95 Nfld. & P.E.I.R. 106 (NFTD)

• Judge: Cameron, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 15, 1991
• Jurisdiction: Newfoundland and Labrador
• Citations: (1991), 95 Nfld. & P.E.I.R. 106 (NFTD)

Conception Bay v. PUB (1991), 95 Nfld. & P.E.I.R. 106 (NFTD);

    301 A.P.R. 106

MLB headnote and full text

The Town Council of the Town of Conception Bay South (first applicant) and Frederick Coates, mayor of the Town of Conception Bay South, in his representative capacity as representing all of the taxpayers of the Town of Conception Bay South (second applicant) and Frederick Coates, a taxpayer, residing in the Town of Conception Bay South, in his own right (third applicant) v. Public Utilities Board for the Province of Newfoundland, a body constituted under the Public Utilities Act (first respondent) and Newfoundland Light and Power Co. Ltd. (second respondent)

(1990 St. J. No. 2408)

Evelyn Grondin (applicant) v. Public Utilities Board for the Province of Newfoundland, a body constituted under the Public Utilities Act (first respondent) and Newfoundland Light and Power Co. Ltd. (second respondent)

(1990 St. J. No. 2561)

The Town Council of the Town of Burin (first applicant) and Jerry Appleby, mayor of the Town of Burin, in his representative capacity as representing all of the taxpayers of the Town of Burin (second applicant) and Jerry Appleby, a taxpayer residing in the Town of Burin, in his own right (third applicant) v. Public Utilities Board for the Province of Newfoundland, a body constituted under the Public Utilities Act (first respondent), and Newfoundland Light and Power Co. Ltd. (second respondent)

(1990 St. J. No. 2562)

Joan Butler (applicant) v. Public Utilities Board for the Province of Newfoundland, a body constituted under the Public Utilities Act (first respondent) and Newfoundland Light and Power Co. Ltd. (second respondent)

(1990 St. J. No. 2563)

Albert Barnes (applicant) v. Public Utilities Board for the Province of Newfoundland, a body constituted under the Public Utilities Act (first respondent) and Newfoundland Light and Power Co. Ltd. (second respondent)

(1990 St. J. No. 2567)

Indexed As: Conception Bay South (Town) et al. v. Board of Commissioners of Public Utilities (Nfld.) et al.

Newfoundland Supreme Court

Trial Division

Judicial Centre of St. John's

Cameron, J.

October 15 and November 15, 1991.

Summary:

Certain municipalities and customers of Newfoundland Light and Power applied to have a decision of the Board of Commissioners of Public Utilities quashed. The applicants submitted that the Board exceeded its jurisdiction in that the public notice of the hearings failed to refer to the matter of the proposed municipal tax surcharge.

The Newfoundland Supreme Court, Trial Division, granted the application and quashed the Board's decision. Subsequently, the parties requested that the order to quash be limited to the municipal tax surcharge. The Newfoundland Supreme Court, Trial Division, granted the amendment.

Administrative Law - Topic 2442

Natural justice - Procedure - Notice - When required - Newfoundland Light and Power (NLP) applied to the Board of Commissioners of Public Utilities (PUB) for a rate increase - Included in the application was a proposal to change from a uniform province-wide rate to one that was varied by a municipal tax surcharge - The surcharge would make the rate charged in each community reflect NLP's tax burden in that particular community - While NLP informed the municipalities' association of the proposed surcharge, the public notice in various newspapers failed to disclose the proposal - Municipalities and consumers applied to have the PUB's decision to allow the surcharge quashed because of lack of notice - The Newfoundland Supreme Court, Trial Division, quashed the PUB's decision - See paragraphs 4 to 34 and 58.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - [ See Administrative Law - Topic 2442 ].

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - The Newfoundland Light and Power Co. (NLP) applied to the Public Utilities Board (PUB) for a rate increase - As part of the proposal, NLP wanted approval "for the recovery of municipal tax paid by NLP through the imposition of a surtax ..." - However, the public notice failed to mention the proposed surtax - NLP claimed the surtax proposal was too complex to include in the notice - The Newfoundland Supreme Court, Trial Division, quashed the PUB's decision ordering the surtax - The court observed that a simple reference to the concept of the surtax would have allowed those interested to seek details - See paragraphs 31 to 34.

Administrative Law - Topic 5021

Judicial review - Certiorari - Grounds for granting certiorari - Error of law - What constitutes - Implementation of decision - Following a hearing, the Public Utilities Board (PUB) granted a rate increase that included a municipal tax surcharge - Certain customers applied to have the surcharge quashed on the ground that there was an error of law on the face of the record - The error in law was constituted by a discrepancy between a statement referring to the implementation of the municipal tax surcharge in the decision and the order - The Newfoundland Supreme Court, Trial Division, observed that even if there was an error in the Board's expression of its conclusion or order, it was not an error of law or fact for which certiorari would lie - See paragraphs 55 to 58.

Administrative Law - Topic 5186

Judicial review - Certiorari - Discretionary bars to issue of certiorari - Delay, inconvenience or expense - Newfoundland Light and Power (NLP) applied to the Public Utilities Board (PUB) for a rate increase - NLP also wanted the new rate to include a surcharge to allow it to recover municipal taxes - The public notice failed to mention the surcharge - The hearings were almost over before many customers and municipalities became aware of the surcharge proposal, too late to intervene - The appeal period was 15 days - It was nearly six months before certain municipalities and customers applied for judicial review - NLP submitted that certiorari was not available because there was an alternative remedy in the appeal and because of delay - The Newfoundland Supreme Court, Trial Division, granted certiorari - See paragraphs 34 to 47.

Administrative Law - Topic 5189

Judicial review - Certiorari - Discretionary bars to issue of certiorari - Existence of another remedy - [See Administrative Law - Topic 5186 ].

Practice - Topic 6105

Judgments and orders - Amendment of - Before judgment or order perfected or entered - The Newfoundland Public Utilities Board (PUB) granted a rate increase to Newfoundland Light and Power that included a municipal tax surcharge - The Newfoundland Supreme Court, Trial Division, quashed the Board's decision on the ground that the public notice for the hearing failed to mention the proposed surcharge - However, before the judgment was entered, the parties applied to have the judgment amended so that only the portion of the PUB's decision that related to the surcharge would be quashed - The Trial Division ordered the variation on the ground that the applicants waived their right to notice in regard to other matters covered by the PUB's decision - See paragraphs 60 to 73.

Public Utilities - Topic 4665

Public utility commissions - Regulation - Rates - Considerations on fixing rates - Uniformity - Section 70(1) of the Public Utilities Act stated that customers in substantially similar circumstances and conditions should pay the same rate - The Act did not contain a privity clause - Neither the Act nor the Regulations defined substantially similar circumstances and conditions - The Public Utilities Board (PUB) permitted a utility to impose a surcharge on its basic rate in some communities in order to allow the recovery of municipal taxes - Certain customers and municipalities applied to have the surcharge quashed on the ground the uniformity provision was contravened - The Newfoundland Supreme Court, Trial Division, observed that it could not grant certiorari on that ground because the PUB's interpretation of s. 70(1) was not unreasonable - See paragraphs 48 to 55.

Cases Noticed:

Central Ontario Coalition Concerning Hydro Transmission Systems et al. and Ontario Hydro et al., Re (1984), 4 O.A.C. 249; 8 Admin. L.R. 81, folld. [para. 18].

Davis and Newfoundland Pharmaceutical Association, Re (1977), 16 Nfld. & P.E.I.R. 293; 42 A.P.R. 293; 86 D.L.R.(3d) 375, refd to [para. 21].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Attorney General of Ontario, [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 21].

Hardy et al. and Minister of Education et al., Re (1986), 22 D.L.R.(4th) 394 (B.C.S.C.), consd. [para. 22].

Wiswell et al. v. Metropolitan Corp. of Greater Winnipeg, [1965] S.C.R. 512, consd. [para. 23].

Penticton et al. v. B.C. Energy Commission (1979), 10 B.C.L.R. 73 (C.A.), consd. [para. 25].

Rozander and Groeneveld v. Energy Resources Conservation Board and Calgary Power Ltd. (1978), 13 A.R. 461; 93 D.L.R.(3d) 271; 8 Alta. L.R.(2d) 203, dist. [para. 35].

Chad Investments Ltd. v. Longson, Tammets & Denton Real Estate Ltd., [1971] 5 W.W.R. 89 (Alta. C.A.), dist. [para. 35].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 3 W.W.R. 676; 26 N.R. 364; 96 D.L.R.(3d) 14, consd. [para. 38].

Canadian Industries Ltd. v. Development Appeal Board of Edmonton et al. (1969), 71 W.W.R.(N.S.) 635, refd to. [para. 42].

Harvie and Glenbow Ranching Ltd. v. Provincial Planning Board and Locke (1977), 5 A.R. 445, refd to. [para. 42].

Winter v. Residential Tenancies Board (1980), 31 Nfld. & P.E.I.R. 148; 87 A.P.R. 148, appld. [para. 43].

Alberta Union of Provincial Employees, Branch 63 v. Alberta Public Service Employees Relations Board and Board of Governors of Olds College, [1982] 1 S.C.R. 923; 42 N.R. 559, refd to. [para. 51].

National Corn Growers' Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81, refd to. [para. 51].

Syndicat national des employés de la Commission Scolaire régionale de l'Outaouais (C.S.N.) v. Union des employés de service, local 298 (F.T.Q.), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 53].

Langille v. Wolfe (D.G.) Enterprises Ltd. and Wolfe (1987), 79 N.S.R.(2d) 92; 196 A.P.R. 92 (C.A.), refd to. [para. 65].

Newfoundland v. Guarantee Co. of North America and Barnes (E.F.) Ltd. (1987), 68 Nfld. & P.E.I.R. 64; 209 A.P.R. 64, folld. [para. 65].

Statutes Noticed:

Public Utilities Act, S.N. 1989, c. 37, generally [para. 27].

Public Utilities Act, R.S.N. 1970, c. 322, sect. 70(1), sect. 70(2) [para. 48].

Rules of Court (Nfld.), Supreme Court Rules, rule 15.07 [para. 63].

Authors and Works Noticed:

Dussault and Borgeat, Administrative Law (2nd Ed.), vol. 4, p. 134 [para. 52].

Evans et al., Administrative Law (3rd Ed.), p. 1053 [para. 34].

Jones and deVillars, Principles of Administrative Law, p. 193 [para. 38].

Counsel:

Barrie Heywood, for the applicants;

Thomas Kendell and Donna Strong, for the first respondent;

Douglas Black, for the second respondent.

This matter was heard on April 15 and 16, 1991, in St. John's, Newfoundland, by Cameron, J., of the Newfoundland Supreme Court, Trial Division, who filed the following decision on October 15, 1991. The application for an amendment was heard on November 6, 1991, and the oral decision of Cameron, J., was filed on November 15, 1991. An application to amend the above decision set forth between paragraphs 1 to 59 was heard by Cameron, J., on November 6, 1991. The following oral supplementary decision of Cameron, J., was delivered on November 12 and filed on November 15, 1991.