Administrative law – Decisions of administrative tribunals – Board of Commissioners of Public Utilities – Judicial review application – Jurisdiction of court – Public utility – definition – Compliance with legislation – Limitations
Cooperators General Insurance Co. v. New Brunswick (Board of Commissioners of Public Utilities),  N.B.J. No. 289, New Brunswick Court of Appeal, July 22, 2004, Drapeau C.J.N.B., Deschênes and Robertson JJ.A.
New Brunswick’s Board of Commissioners of Public Utilities supervises the rates that insurers charge or propose to charge for automobile insurance in New Brunswick. The Appellant had applied to the Board for approval of the rates it proposed to charge for automobile insurance. At the outset of the hearing into the application, the Appellant moved for an order that the information accompanying its filings not be published or otherwise revealed to any third party. The Board denied the motion.
The Appellant applied to the Court of Queen’s Bench of New Brunswick for judicial review of the Board’s refusal to issue the requested confidentiality order. The reviewing judge ignored a jurisdictional objection brought by the Respondent and ultimately dismissed the Appellant’s application on the merits. Before the Court of Appeal, the appellant argued that the reviewing judge had committed a reversible error on a number of grounds. The Court of Appeal reached its decision based on the issue of the jurisdiction of the Court of Queen’s Bench to entertain this judicial review.
The Appellant’s motion for confidentiality emanated from section 7.1 of the Public Utilities Act, R.S.N.S.1989, c.380. This section was primarily concerned with information emanating from a “public utility”. If the appellant was indeed a “public utility”, then section 25(1) of the Public Utilities Act obligated it to bypass the Court of Queen’s Bench and apply directly to the Court of Appeal for the judicial review of the Board’s decision. The Court proceeded to consider whether the Appellant was a “public utility”.
The Board’s enabling legislation is the Public Utilities Act. The Board’s involvement comes about as a result of section 267.82 of the Insurance Act, R.S.N.S. 1989, c.231, which dictates that the provisions of the Public Utilities Act apply mutatis mutandis to the proceeding to which the Appellant was a party. Since several provisions of the Public Utilities Act that apply to the relevant sections of the Insurance Act include the expression “public utility”, those provisions would not have their intended application unless the expression “public utility” is read as “insurer carrying on the business of automobile insurance in the Province”.
The Appellant, like any other insurer carrying on the business of automobile insurance in New Brunswick, that is a party before the Board, stands to be treated as a “public utility”. Accordingly, section 25(1) of the Public Utilities Act vests exclusive jurisdiction in the Court of Appeal to hear and determine the Appellant’s application for judicial review. The Court of Queen’s Bench lacked jurisdiction to render the decision under appeal.
The limitation period for an application for judicial review to the Court of Appeal had elapsed. The Court held that while Rule 62.21(1) of the Rules of Court allow the Court of Appeal to render any decision and make any order that ought to have been made, it cannot be employed to circumvent the scheme for judicial review put in place by the Public Utilities Act. The court held that it is trite law that, absent enabling legislation, no court is at liberty to extend a statutory deadline for the taking of any prerequisite step to judicial intervention.
The appeal was allowed, but only for the purpose of setting aside the decision rendered in the Court of Queen’s Bench, which was without jurisdiction. The litigation outcome remained unchanged and the Appellant’s challenge to the Board’s decision ultimately failed.
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