Orders

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 Chapter 4 Revised: July 2002 Page 36

A Participants’ Guide to the B.C. Utilities Commission applicant or by written submissions and oral argument. 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. Chapter 4 Revised: July 2002 Page 37

A Participants’ Guide to the B.C. Utilities Commission 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. 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. Chapter 4 Revised: July 2002 Page 38

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 39

THOMAS BUTLER LLP BARRISTERS SOLICITORS 700 – 1708 Dolphin Avenue, Landmark II Tower Kelowna, BC, V1Y 9S4 *Kelly Cairns, Partner Telephone: 250.763.0200 Email: kacairns@thomasbutlerllp.com Facsimile: 250.762.8848 *Law Corporation (www.cairnslaw.ca) VIA EMAIL: Commission.secretary@bcuc.com September 18, 2008 BC Utilities Commission Sixth Floor, 900 Howe Street Vancouver, B.C. V6Z 2N3 Attention: Commission Secretary, Erica M. Hamilton Re: Commission Order C-4-07 and G-75-07; FortisBC Inc. Ellison Project (No. 3698442) Dear Ms. Hamilton: This letter is an application for reconsideration of the above-noted Commission Decisions pursuant to sections 99 and 100 of the Utilities Commission Act. As the Commission may recall, in the proceedings I represented the Concerned Citizens of Quail Ridge and Lochrem Road (“CCQRLR”) including Judy Clayton. My clients have become aware of something that we respectfully submit is a material new development that was not known to the Commission during the application and public hearing. Attached is a letter from NAV CANADA to FortisBC in which conditional approval is granted to construct the Ellison substation at the Lochrem Road location. One of those conditions, set out in the third bullet, requires that if the substation emits electromagnetic noise that interferes with “…NAV CANADA systems which are critical for aviation safety” which interference cannot be eliminated by remedial steps taken at the Lochrem Road site, FortisBC must agree, among other things, to completely relocate or shut down the entire substation. It appears to my clients that FortisBC cannot make such a commitment to NAV CANADA without Commission approval and that a reconsideration of this new development may be required. As well, it appears from NAV CANADA’s letter that no one, including the Commission, FortisBC and NAV CANADA, will know whether the Lochrem Road substation will interfere with the airport’s aviation safety systems until after construction is complete. It is our respectful submission that this is a material risk that may have affected the Commission’s decision in choosing among the various options proposed by FortisBC, had any of the parties been aware of it. For example, if the Commission had been aware that the Lochrem Road substation might have to be removed and relocated or shut down at ratepayer expense, the Commission may have instead selected Option 2, the Sexsmith location. My client also brought to my attention Transport Canada Regulation TP 1247, attached, which provides that electrical noise generators such as electrical switching gear and high tension line leakage “…should be kept at least 1.6 km from the radio antennae; in no circumstance should they be closer than 500 m.” In order to construct anything that might interfere in some way with aviation, the proponent must receive approval from 1

both Transport Canada and NAV CANADA. We are not aware whether FortisBC has received Transport Canada approval for the proposed substation. Whether such approval has been received, we submit, would also be a material factor for the Commission to consider in deciding whether reconsideration is appropriate in these circumstances. We look forward to your reply and remain, Yours truly, Thomas Butler LLP Kelly A. Cairns cc: CCQRLR, Judy Clayton, R. McDonell, P. Miller 2