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PUBLIC UTILITIES - Regulatory tribunals - Appeals - Lack of jurisdiction - Pipelines

Wednesday, November 25, 2020 @ 6:30 AM  

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Application by the City of Coquitlam for leave to appeal a reconsideration decision by the British Columbia Utilities Commission. The decision under appeal affirmed an order authorizing FortisBC to abandon a decommissioned pipeline situated on City lands and directing the parties to share any removal costs in the event the City required the pipeline’s removal to accommodate municipal infrastructure. The City took the position that Fortis should bear the costs of removal, including the work and costs associated with repaving the surface above the pipeline, totalling an estimated $10.5 million. Fortis applied to the Commission for orders settling the terms of construction pursuant to ss. 32 and 33 of the Utilities Commission Act. The Commission granted the order at issue and affirmed it in a subsequent reconsideration decision. The Commission found that it retained jurisdiction over decommissioned public utility assets, and by necessary implication could impose a term for sharing costs on future municipal use of the pipeline lands. The City sought leave to appeal on the basis that the Commission erred in law in finding it had the power to require a municipality to permit abandonment of a permanently decommissioned pipeline on City lands and erred in law in finding it had the power to order terms related to removal, including requiring the City to pay costs of removal. 

HELD: Application allowed. The proposed appeal raised novel issues of law regarding the Commission’s jurisdiction in relation to local governments. The fate of decommissioned public utility assets like pipelines was clearly a matter of public importance with significant costs implications arising from the outcome of the case. It could not be said that the appeal was without arguable merit. The issues on appeal concerned powers the Commission found arose by necessary implication rather than through express statutory language. Such issues were reviewable on a standard of correctness and thus the Commission’s decision was not entitled to deference. The existence of the implied powers found by the Commission was not an issue easily resolved by the statutory language or the jurisprudence. The Commission’s public mandate was not so broad so as to render the appeal inarguable.

Coquitlam (City) v. British Columbia Utilities Commission, [2020] B.C.J. No. 1642, British Columbia Court of Appeal, P. Abrioux J.A., October 23, 2020. Digest No. TLD-November232020005