The BCCA denies leave to appeal a decision of the BCUC that a reduced utilities rate for low-income ratepayers would be unjust, unreasonable, and unduly discriminatory.

British Columbia Old Age Pensioners’ Organization v. British Columbia Utilities Commission, [2017] B.C.J. No. 2302, 2017 BCCA 400, British Columbia Court of Appeal, November 17, 2017, R. Goepel J. A.

BC Hydro put forth a Rate Design Application to the British Columbia Utilities Commission (“BCUC”) that proposed different utility rates for different classes of customers. The petitioners, i.e., British Columbia Old Age Pensioners’ Organization, Active Support Against Povery, Council of Senior Citizens’ Organizations of BC, Disability Alliance BC, Together Against Poverty Society, and the Tenant Resource and Advisory Centre (collectively, “BCOAPO”) and Movement of United Professionals (“Move UP”), intervened in the Rate Design Application to request strategies to assist low-income ratepayers.

On January 20, 2017, the BCUC made its initial decision in respect of the Rate Design, denying most of the low-income proposals on the basis it lacked jurisdiction to set such rates (the “First Decision”). It considered that providing utilities to low-income customers would cost the same as providing utilities to other residential customers and as such, reduced rates for low-income services would be unjust, unreasonable, and unduly discriminatory, and therefore beyond the BCUC’s jurisdiction.

On June 2, 2017, the BCUC issued a second decision, in which it declined to reconsider its first decision on the grounds that the claimed errors had not been substantiated on a prima facie basis (the “Reconsideration Decision”).

The petitioners, now the applicants, sought leave to appeal both decisions of the BCUC. The BCUC took no position but suggested it would be improper to review the First Decision as it was the subject of reconsideration by the BCUC; it therefore suggested review should be limited to the Reconsideration Decision. Both BC Hydro and FortisBC opposed the application for leave to appeal, in addition to suggesting if leave was granted, review should be limited to the Reconsideration decision.

Goepel J.A., writing for the Court, reviewed the BCUC legislative mandate to ensure utilities provide safe, adequate, efficient and secure service to customers for rates that are fair, just and reasonable, and not unduly discriminatory or preferential. He further noted that appeals from BCUC decisions are restricted to questions of law or jurisdiction. The Court concluded that if leave were to be granted, it would only be granted with respect to the Reconsideration Decision.

However, in the result, Goepel J.A. dismissed both the applications for leave to appeal. He found that the applicants’ appeal had no prospect of success in light of jurisprudence suggesting the standard of review on appeal would be reasonableness, not (as the applicants had argued) correctness. The Court held that the question of jurisdiction to approve a low-income rate lay at the core of the BCUC’s expertise and competence, and that the analysis it had conducted in reaching its decision was careful and thorough. The Court found that the applicants had not put forward a credible argument that the BCUC’s findings were unreasonable. Further, the legislation provided that the findings of facts reached by the BCUC, i.e., that the proposed low-income rate was unjust, unreasonable, or unduly discriminatory, could not be challenged on appeal due to legislation which provides that the BCUC be the sole judge of such a finding.