Consumers' Association of Canada (Manitoba) Inc. et al. v. Manitoba Hydro, 2005 MBCA 55

• Judge: Monnin, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 23, 2005
• Jurisdiction: Manitoba
• Citations: 2005 MBCA 55;(2005), 195 Man.R.(2d) 12 (CA)

Consumers' Assoc. v. Man. Hydro (2005), 195 Man.R.(2d) 12 (CA);

    351 W.A.C. 12

MLB headnote and full text

Temp. Cite: [2005] Man.R.(2d) TBEd. MY.005

The Consumers' Association of Canada (Manitoba) Inc. and the Manitoba Society of Seniors Inc. (CAC/MSOS) (intervenors/applicants) v. The Manitoba Hydro Electric Board (Manitoba Hydro) (applicant/respondent)

(AI 04-30-05963)

Manitoba Industrial Power Users Group (MIPUG) (intervenor/applicant) v. Manitoba Hydro (applicant/respondent)

(AI 04-30-05969; 2005 MBCA 55)

Indexed As: Consumers' Association of Canada (Manitoba) Inc. et al. v. Manitoba Hydro

Manitoba Court of Appeal

Monnin, J.A.

May 5, 2005.

Summary:

The Consumers' Association of Canada (Manitoba) Inc. and the Manitoba Society of Seniors Inc., and Manitoba Industrial Power Users Group, applied for leave to appeal orders made by the Public Utilities Board setting rates for Manitoba Hydro (Hydro).

The Manitoba Court of Appeal, per Monnin, J.A., denied the applications for leave to appeal.

Public Utilities - Topic 4741

Public utility commissions - Judicial review - General (incl. standard of review) - The Manitoba Court of Appeal, per Monnin, J.A., discussed the standard of review of a decision of the Public Utilities Board setting rates for Manitoba Hydro - See paragraphs 12 to 16.

Public Utilities - Topic 4749

Public utility commissions - Judicial review - Leave to appeal - General - The Manitoba Court of Appeal, per Monnin, J.A., stated that the following test applied for applications for leave to appeal under s. 58 of the Public Utilities Board Act - "For leave to be granted, the applicant must raise a question of law or jurisdiction. If there does exist a genuine question of law, it must be one of some importance, meriting the attention of the court. Leave will not be granted on mixed questions of fact and law. The methodology used by the Board to determine assessed value is a question of fact." - The court stated also that "... even though a question of jurisdiction or a point of law is raised, the granting of leave remains discretionary" - See paragraphs 6 to 11.

Public Utilities - Topic 4750

Public utility commissions - Judicial review - Leave to appeal - Grounds - Three interested groups (the applicants) applied for leave to appeal Public Utilities Board (PUB) orders setting Manitoba Hydro rates - The Manitoba Court of Appeal, per Monnin, J.A., refused to grant leave to appeal - The applicants' argument that PUB failed to reach a "just and reasonable" rate was not a matter of law but a dispute with the opinion at which the PUB arrived - The applicants' complaint was as to methodology used by the PUB - The setting of rates, and the elements to be considered in doing so, required a specialized knowledge and understanding that ought not to be interfered with by courts absent clear error - This was not such a case - On whatever standard of review was applicable, the applicants had not convinced the court that leave to appeal should be granted - There were no questions of pure law to be decided - At best, from the applicants' perspective, their applications were grounded on questions of mixed fact and law and those issues were not such that they presented a matter of importance that ought to engage the court - See paragraphs 17 to 70.

Cases Noticed:

1379025 Ontario Ltd. v. Winnipeg City Assessor, [2005] Man.R.(2d) Uned. 21; 2005 MBCA 46, refd to. [para. 9].

Green Acres Memorial Gardens (1969) Ltd. v. Public Utilities Board (Man.) (1984), 28 Man.R.(2d) 224 (C.A.), refd to. [para. 11].

Brandon Transit Consumers Association Inc. v. Brandon (City) (1985), 34 Man.R.(2d) 36 (C.A.), refd to. [para. 24].

British Columbia Hydro & Power Authority v. Westcoast Transmission Co. et al., [1981] 2 F.C. 646; 36 N.R. 33 (F.C.A.), refd to. [para. 40].

Consumers' Association of Canada et al. v. Hydro Electric Power Commission (Ont.) et al., [1974] 1 F.C. 453; 2 N.R. 467 (F.C.A.), refd to. [para. 40].

Trans Mountain Pipe Line Co. v. National Energy Board et al., [1979] 2 F.C. 118; 29 N.R. 44 (F.C.A.), refd to. [para. 50].

Centra Gas Manitoba v. Public Utilities Board (Man.), [1997] 6 W.W.R. 301 (Man. C.A.), refd to. [para. 56].

Centra Gas Manitoba Inc. v. Public Utilities Board (Man.) (1998), 131 Man.R.(2d) 287; 187 W.A.C. 287 (C.A.), refd to. [para. 58].

Statutes Noticed:

Accountability Act - see Crown Corporations Public Review and Accountability Act.

Crown Corporations Public Review and Accountability Act, S.M. 1988-89, c. 23; C.C.S.M., c. C-336, sect. 26 [para. 48].

Public Utilities Board Act, R.S.M. 1987, c. P-280; C.C.S.M., c. P-280, sect. 58(1), sect. 58(2) [para. 8].

Counsel:

J.B. Williams, for the applicants, Consumers' Association of Canada (Manitoba) Inc. and Manitoba Society of Seniors Inc.;

T.D. McCaffrey, for the applicant, Manitoba Industrial Power Users Group;

P.J. Ramage, for the respondents;

R.F. Peters and A.L. Southall, for the Public Utilities Board.

These applications were heard on February 23, 2005, before Monnin, J.A., of the Manitoba Court of Appeal, who delivered the following judgment orally on May 5, 2005.