LETTER NO. L-49-03 SIXTH FLOOR, 900 HOWE STREET, BOX 250 ROBERT J. PELLATT VANCOUVER, B.C. CANADA V6Z 2N3 COMMISSION SECRETARY TELEPHONE: (604) 660-4700 Commission.Secretary@bcuc.com BC TOLL FREE: 1-800-663-1385 web site: http://www.bcuc.com FACSIMILE: (604) 660-1102 Log No. 4177 VIA FACSIMILE October 21, 2003 To: Registered Intervenors Re: Terasen Gas (Vancouver Island) Inc. (“TGVI”) Application for Reconsideration of the Decision of the British Columbia Utilities Commission (“BCUC”) dated June 5, 2003 On September 30, 2003 counsel for British Columbia Hydro and Power Authority (“BC Hydro”) filed an Application for Reconsideration of the Commission’s June 5, 2003 Decision into the 2002 Rate Design Application of Centra Gas British Columbia Inc. (now TGVI). The Application (attached) identifies what BC Hydro considers to be two issues where the Commission has made an error in fact, or alternatively, in law. The first issue concerns the calculation of the residual capacity of the transmission system for the purpose of allocating transmission costs. The second issue relates to the allocation of peaking costs. For each issue raised by BC Hydro, Intervenors are invited to provide comments to the Commission that address the following specific questions: • Should there be reconsideration by the Commission? • If there is to be reconsideration, should the Commission hear new evidence and should new parties be given the opportunity to present evidence? • If there is to be reconsideration, should it focus on the items from the application for reconsideration, a subset of these items or additional items? • Are there any other pertinent facts or issues regarding BC Hydro’s request that the Commission reconsider the Decision and vary it accordingly? Intervenors’ comments should address whether the threshold for reconsideration has been met, rather than the substance of the issue. For a reconsideration hearing to proceed, the reconsideration applicant is required to meet the following criteria: 1. The claim of error appears to be substantiated on a prima facie basis; and 2. The error has significant material implications. If the Commission agrees to reconsider its Decision, the parties will be allowed to address the substance of the issues that the Commission approves for reconsideration. . . . /2
LETTER NO. L-49-03 2 A copy of the Reconsideration and Appeals section of the Commission’s Participant’s Guide, which identifies the criteria that the Commission generally applies to determine whether a reasonable basis exists for allowing reconsideration, is enclosed. Intervenors’ comments are to be provided to the Commission and copied to BC Hydro and other Intervenors by October 31, 2003. BC Hydro is to respond to Intervenor comments by November 7, 2003. Yours truly, Original signed by: Robert J. Pellatt JWF/rt Attachments cc: Mr. Russell W. Lusk Borden Ladner Gervais LLP Mr. Richard Stout BC Hydro Mr. Geoff Higgins Terasen Gas (Vancouver Island) Inc. Mr. Cal Johnson Terasen Gas (Vancouver Island) Inc. c/o Fasken Martineau DuMoulin TGVI/Cor/Reconsideration of Decision Jun 5’03
A Participants’ Guide to the B.C. Utilities Commission Reconsideration and Appeals An intervenor's role does not necessarily end with the announcement of the Commission's decision. If the utility or an intervenor believes the Commission made a significant error, they may raise the issue again for further scrutiny by way of a reconsideration or an appeal. It is important to realize, however, that an intervenor cannot have a decision reconsidered or appealed merely because he or she is unhappy with the result of the decision. Rather, the intervenor must be able to identify a specific error which the Commission made in arriving at its decision. The Utilities Commission Act provides three remedies for parties who wish to challenge a Commission decision. An application can be made to the Commission to reconsider its own decision under Sections 99 and 100 of the Utilities Commission Act. Under Section 101(1), an appeal of the decision can be made to the Court of Appeal for British Columbia on the grounds that the Commission has made an error of law or jurisdiction in reaching its decision. A third remedy is a complaint to the Ombudsman. If a party is dissatisfied with the Commission's procedure, a complaint can be made. However, only procedural issues will be reviewed by the Ombudsman. Commission Reconsideration An application for reconsideration by the Commission proceeds in two phases. In the interests of both efficiency and fairness, and before the Commission proceeds with a determination on the merits of an application for reconsideration, the application undergoes an initial screening phase. In this phase the applicant must establish a prima facie case sufficient to warrant full consideration by the Commission. The first phase, therefore, is a preliminary examination in which the application is assessed in light of some or all of the following questions: • Should there be a reconsideration by the Commission? • If there is to be a reconsideration, should the Commission hear new evidence and should new parties be given the opportunity to present evidence? • If there is to be a reconsideration, should it focus on the items from the application for reconsideration, a subset of these items or additional items? The Commission then issues an order which invites registered intervenors and interested parties to comment on the application for reconsideration by addressing those questions set out in the order. The order also specifies the process to be followed which is either by written submissions and reply by the applicant or by written submissions and oral argument. Chapter 4 Revised: July 2002 Page 3
A Participants’ Guide to the B.C. Utilities Commission After the first phase evidence has been received, the Commission generally applies the following criteria to determine whether or not a reasonable basis exists for allowing reconsideration: • the Commission has made an error in fact or law; • there has been a fundamental change in circumstances or facts since the Decision; • a basic principle had not been raised in the original proceedings; or • a new principle has arisen as a result of the Decision. In addition, the Commission will exercise its discretion to reconsider, in other situations, wherever it deems there to be just cause. Where an error is alleged to have been made, in order to advance to the second phase of the reconsideration process, the application must meet the following criteria: • the claim of error is substantiated on a prima facie basis; and • the error has significant material implications. If necessary, the reconsideration proceeds to the second phase where the Commission hears full arguments on the merits of the application. The applicant and the intervenors may appear before the Commission at this stage to argue why the original decision should or should not be varied or overturned. Finally, after considering these arguments, the Commission renders its decision on the reconsideration application. The Court of Appeal for British Columbia The second means of challenging a Commission decision is by way of the Court of Appeal for British Columbia. Unlike the reconsideration process, however, the court is quite restricted in terms of the nature of the errors which it can address. The Court of Appeal for British Columbia will consider only alleged errors of law or jurisdiction. An appeal to the Court must be launched within 30 days after the Commission has issued its Decision. However, it is necessary first to seek the court's leave for the appeal. The court will normally grant leave only if other remedies have been exhausted. Therefore, the appellant should also apply for a reconsideration by the Commission. Chapter 4 Revised: July 2002 Page 4
If a participant chooses to pursue an appeal, the procedures become quite complex and formal. Normally, lawyers become involved at this stage, as their knowledge of court procedures and legal arguments tends to be very useful. It is not necessary, however, to hire a lawyer in order to make an appeal in court. The Ombudsman If a customer is not satisfied with the Commission's handling of a complaint, he or she may contact the provincial Ombudsman's Office to review the process used. The Ombudsman has the authority to review the processes used by the Commission, including the process for resolving complaints. The Ombudsman generally has the power to recommend reconsideration of a matter because of an error in procedure, but cannot overturn a Commission decision. Figure 4-2 OPPORTUNITIES AND MECHANISMS FOR PARTICIPATING IN COMMISSION ACTIVITIES Utility application •for revenue requirements •for rate design Lieutenant Governor in Council •for a CPCN or of Commission’s own accord Initiation of process Review by Commission staff or Submission of participant funding by Commission application and budget Feedback ADR: •Workshops •Negotiated Settlement Process •Pre-hearing Conference •Townhall Meetings Participant funding awards made by Commission panel Revised: July 2002 A Participants’ Guide to the B.C. Utilities Commission Review at request of Customer complaint Notice of hearing Intervenor registration Information requests and responses The Hearing Process •Oral or written The Commission’s written decision Appeal to Court Reconsideration of Appeal Chapter 4 Page 5
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