The Consumers’ Association of Canada (Manitoba) Inc. and the Manitoba Society of Seniors (the “Applicants”) applied for judicial review of an Order made by the Public Utilities Board of Manitoba (the “Board”) with respect to an ex parte Order of the Board that permitted Centra Gas Manitoba Inc. (“Centra”) to increase its natural gas rates by approximately 10% effective February 1, 2005 without any notice to or input from Centra’s customers. The court held that there was no evidence presented to the Board that supported the exceptional requirements necessary to justify of an ex parte hearing. The Board therefore should not have heard Centra’s interim application on an ex parte basis and the Applicants were entitled to an Order quashing the interim rate increase ordered by the Board following the ex parte hearing.

Administrative law – Natural resources – Natural gas – Decisions of administrative tribunals – Energy and Utilities Board – Rate increases – Appeals – Hearings – Procedural requirements and fairness – Ex parte orders – Evidence – Interpretation of legislation – Judicial review – Standard of review – Correctness

Consumers’ Assn. of Canada (Manitoba) Inc. v. Manitoba (Public Utilities Board), [2005] M.J. No. 258, Manitoba Court of Queen’s Bench, June 27, 2005, Scurfield J.

With respect to this application the court noted that section 45 of the Public Utilities Board Act, C.C.S.M. c. P280, allowed the Board to make an interim ex parte Order in special circumstances.

The court was satisfied that the specific language of section 45 of the Act intended to give the Board jurisdiction to make an ex parte Order.

The court was also satisfied that there was at least some evidence to support the Board’s decision that Centra’s special economic circumstances “required” an interim Order. The standard of review, however, with respect to whether an ex parte hearing was necessary was the standard of correctness. The court noted that ex parte hearings should be rare. A finding that special economic circumstances exist may justify an interim Order; however, standing alone, that finding did not support the need for an ex parte hearing.

The court held that the record indicated that the Board did not turn its mind to the distinction between an interim hearing and an interim ex parte hearing. There was no evidence presented to the Board that supported the exceptional requirements of an ex parte hearing. There was sufficient time for the Board or Centra to notify interested parties of the proposed hearing. As such, the Board should not have heard Centra’s interim application on an ex parte basis.

In the result, the Applicants were entitled to an Order quashing the interim rate increase ordered by the Board following the ex parte hearing.

To stay current with the new case law and emerging legal issues in this area, subscribe here.