The Applicant Consumers’ and Seniors’ Associations challenged a rate increase granted by virtue of an interim ex parte order of the Respondent Public Utilities Board of Manitoba. The Applicants brought a motion for certiorari to quash the order on both procedural and substantive grounds. They were successful in the Court of Queen’s Bench. The Board appealed. The Manitoba Court of Appeal allowed the appeal, and held that the learned motions judge ought not to have granted the Applicants’ motion of certiorari when there was an adequate alternative remedy available, namely to participate in the General Rate Application process.

27. February 2007 0

Administrative law – Decisions of administrative tribunals – Energy and Utilities Board – Hearings – Ex parte orders – Judicial review – Remedies – Alternative remedies

Consumers’ Assn. of Canada (Manitoba) Inc. v. Manitoba (Public Utilities Board), [2006] M.J. No. 464, Manitoba Court of Appeal, December 18, 2006, Huband, Twaddle and Hamilton JJ.A.

A rate increase granted to Centra by virtue of an interim ex parte Order of the Public Utilities Board of Manitoba was overtaken by subsequent Orders which resulted from a full hearing before the Board. As a consequence of the ex parte order, the Consumers’ and Seniors’ Associations brought a motion for certiorari in the Court of Queen’s Bench to quash this Order. The motion judge held that the Board should not have heard Centra’s interim application on an ex parte basis. The Court explained that certiorari was an appropriate remedy as the Board failed to address the question whether an ex parte hearing was “required” and therefore the Board erred in assuming jurisdiction under section 45. The Court therefore quashed the ex parte Order. The Board appealed.

The parties to this appeal agreed at the outset of the hearing that the rate increase had become moot by other unchallenged proceedings. The main issue the Court of Appeal considered was whether the motions judge should have entertained a motion for certiorari and granted an Order quashing the interim ex parte Order when there was an adequate alternative remedy. The Court explained that the parties could have participated further in the Centra General Rate Application (“GRA”) process.

Relying on Winnipeg City Assessor v. Canadian National Railway Co. et al (1998), 134 Man. R. (2d) 122 (C.A.) the Court of Appeal concluded that the certiorari granted by the motions judge was inappropriate in view of the remedy provided through the GRA process. The Court also explained the difference between “interlocutory” and “interim”. An interlocutory Order refers to one given in the course of a legal proceeding, as distinct from a final Order. An interim Order is one of a provisional or temporary nature, as distinct from a final Order. The Court held that the interim ex parte Order granted in this case should be seen as part of a continuum leading through the GRA to the order, and that the GRA process was an adequate alternative remedy. The Court of Appeal therefore allowed the Board’s appeal, without costs to any party.

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