Focus On

PUBLIC UTILITIES - Regulatory tribunals - Jurisdiction of board

Tuesday, October 12, 2021 @ 5:55 AM  

Lexis Advance® Quicklaw®
Appeal by the City of Coquitlam from a decision by the Utilities Commission Reconsideration Panel permitting FortisBC Energy to abandon a decommissioned pipeline. In 2015, the Commission issued a certificate of public convenience and necessity that approved Fortis’s pressure system upgrade projects. One upgrade involved constructing a new 30-inch pipeline through Coquitlam to replace a 20-inch pipeline constructed under a 1955 approval. Coquitlam refused to approve construction unless Fortis agreed to remove the decommissioned pipeline. In 2018, Fortis applied to the Commission seeking a ruling on Coquitlam’s proposed conditions. In 2019, the Commission authorized Fortis to abandon the decommissioned pipeline in place and to remove any portion that interfered with municipal infrastructure with related costs to be shared equally. Coquitlam sought reconsideration and variance of the 2019 order on procedural and jurisdictional grounds. In 2020, the Panel upheld Coquitlam’s procedural objection to the costs decision and refused to rescind the abandonment directive. Coquitlam appealed.

HELD: Appeal dismissed. The impugned order was not confiscatory, as there was no proprietary interest conferred when a utility was granted a right to use property. Fortis’ use did not impair Coquitlam’s use of municipal property, as Fortis remained responsible for removing portions that impaired Coquitlam’s use. The Gas Utility Act did not exhaustively describe the circumstances in which a utility could place equipment on municipal property or limit the Commission’s jurisdiction to permit use as contemplated by the Utilities Commission Act. The Commission was the only authority to decide how and when removal of a pipeline would take place. The order to maintain the old line in service until the installation of the new line was complete was intended to minimize social and traffic disruption, environmental impacts and the risk of property damage. The abandonment was far more economical than removal. The decision whether to abandon or remove decommissioned underground pipelines was multifactorial and was at the core of the Commission’s jurisdiction.

Coquitlam (City) v. British Columbia (Utilities Commission), [2021] B.C.J. No. 2003, British Columbia Court of Appeal, S.D. Frankel, P.M. Willcock and J. DeWitt-Van Oosten JJ.A., September 17, 2021. Digest No. TLD-October112021002