Enbridge Gas New Brunswick Limited Partnership v. New Brunswick Energy and Utilities Board et al., 2015 NBCA 65

• Judge: Drapeau, C.J.N.B., Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 22, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 65;(2015), 441 N.B.R.(2d) 299 (CA)

Enbridge Gas v. EUB (2015), 441 N.B.R.(2d) 299 (CA);

    441 R.N.-B.(2e) 299; 1152 A.P.R. 299

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. OC.025

Renvoi temp.: [2015] N.B.R.(2d) TBEd. OC.025

Enbridge Gas New Brunswick Limited Partnership, as Represented by its General Partner Enbridge Gas New Brunswick Inc. (applicant) v. New Brunswick Energy and Utilities Board (respondent) and Atlantic Wallboard LP and Flakeboard Company Limited (intervenors)

(58-14-CA; 2015 NBCA 65)

Indexed As: Enbridge Gas New Brunswick Limited Partnership v. New Brunswick Energy and Utilities Board et al.

Répertorié: Enbridge Gas New Brunswick Limited Partnership v. New Brunswick Energy and Utilities Board et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Quigg and Green, JJ.A.

October 22, 2015.

Summary:

Résumé:

Enbridge Gas New Brunswick Limited Partnership was a public utility operating as a distributor of natural gas in the Province of New Brunswick. Its activities were regulated by the New Brunswick Energy and Utilities Board under the Gas Distribution Act. Enbridge filed a rate application. Enbridge was dissatisfied with one specific part of the Board's ruling on its application, i.e., that any revenue shortfall incurred by Enbridge as a result of the Board having previously imposed a mechanism known as a "rate rider" on a particular class of customers could not be recovered by Enbridge in 2014. Enbridge applied for judicial review.

The New Brunswick Court of Appeal dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - On a rate application by Enbridge (natural gas distributor and public utility), the New Brunswick Energy and Utilities Board ruled, inter alia, that any revenue shortfall incurred by Enbridge as a result of the Board having previously imposed a mechanism known as a "rate rider" (i.e. a rate reduction) on a particular class of customers could not be recovered by Enbridge in 2014 - Enbridge applied for judicial review, arguing that the Board breached the duty of fairness by failing to provide sufficient reasons - The New Brunswick Court of Appeal dismissed the application - Read contextually, the reasons provided were intelligible, and there existed a rational connection between the evidence before the Board and the decision rendered - In rendering its decision, the Board discharged its core statutory responsibility to establish just and reasonable rates - There was no error justifying judicial intervention - See paragraphs 50 to 58.

Public Utilities - Topic 4741

Public utility commissions or corporations (incl. private providers) - Judicial review - General (incl. standard of review) - The New Brunswick Energy and Utilities Board ruled on a rate application by a natural gas distributor, Enbridge (i.e., a public utility) - Enbridge was dissatisfied with one specific part of the Board's ruling on its application, i.e., that any revenue shortfall incurred by Enbridge as a result of the Board having previously imposed a mechanism known as a "rate rider" (i.e., a rate reduction) on a particular class of customers (Small General Service class) "cannot be recovered by the Applicant in 2014" - Enbridge applied for judicial review, arguing that the Board erred in law by denying Enbridge the opportunity to recover its full revenue requirement, rendering the Board's decision incorrect, or in the alternative, unreasonable - The New Brunswick Court of Appeal held that the standard of review was reasonableness - See paragraphs 16 to 23.

Public Utilities - Topic 4663.2

Public utility commissions or corporations (incl. private providers) - Regulation - Rates - Differential rates - On a rate application by Enbridge (natural gas distributor and public utility), the New Brunswick Energy and Utilities Board ruled, inter alia, that any revenue shortfall incurred by Enbridge as a result of the Board having previously imposed a mechanism known as a "rate rider" (i.e. a rate reduction) on a particular class of customers (Small General Service class) could not be recovered by Enbridge in 2014 - Enbridge applied for judicial review, arguing that the Board erred in law by denying Enbridge the opportunity to recover its full revenue requirement - The New Brunswick Court of Appeal disagreed and dismissed the application - The Board acted in the manner it believed to be appropriate in the circumstances, both with respect to the imposition of the rate rider, and in the setting of new rates and tariffs for 2014 - The Board was governed by its statutory obligation to impose rates that were just and reasonable, which it did - Its decision was entitled to deference - See paragraphs 16 to 49.

Public Utilities - Topic 4666

Public utility commissions or corporations - Regulation - Rates - Power to fix just and reasonable rates - [See Administrative Law - Topic 549 and Public Utilities - Topic 4663.2 ].

Public Utilities - Topic 4747

Public utility commissions - Judicial review - Deference - [See Public Utilities - Topic 4663.2 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Enbridge Gas New Brunswick Limited Partnership et al. v. New Brunswick (Attorney General) (2013), 404 N.B.R.(2d) 189; 1048 A.P.R. 189; 2013 NBCA 34, refd to. [para. 22].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 44].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 44].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 51].

New Brunswick (Attorney General) v. Dominion of Canada General Insurance Co. (2010), 366 N.B.R.(2d) 105; 942 A.P.R. 105; 2010 NBCA 82, refd to. [para. 53].

New Brunswick (Attorney General) v. Pembridge Insurance Co. et al. (2011), 368 N.B.R.(2d) 134; 949 A.P.R. 134; 2011 NBCA 2, refd to. [para. 53].

Smith v. New Brunswick (Department of Public Safety) et al. (2012), 397 N.B.R.(2d) 1; 1028 A.P.R. 1; 2012 NBCA 41, refd to. [para. 56].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 57].

Statutes Noticed:

Gas Distribution Act, S.N.B. 1999, c. G-2.11, sect. 52 [para. 20].

Gas Distribution Act Regulations (N.B.), Rates and Tariffs Regulation, N.B. Reg. 2012-49, sect. 4 [para. 21].

Counsel:

Avocats:

David Duncan Young, for the applicant;

Ellen C. Desmond, Q.C., for the respondent;

Christopher J. Stewart, for the intervenors;

Rene Basque, Q.C., for the Public intervenor.

This appeal was heard on January 21 and 22, 2015, before Drapeau, C.J.N.B., Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. The following decision was delivered for the court, in both official languages, by Green, J.A., on October 22, 2015.