IN THE MATTER OF
the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
Person(s) doing business as Seascapes Development and
Superior Propane
Stay of Proceedings Application
BEFORE: B.A. Magnan, Commissioner September 23, 2014
O R D E R
WHEREAS:
A. On February 26, 2014, the British Columbia Utilities Commission (Commission) received a complaint from the Property Manager of a 100-unit strata development property called Seascapes (BCS 776), located at West Vancouver, British Columbia, regarding propane services supplied by a division of Superior Plus LP doing business under the name Superior Propane;
B. On March 25, 2014, the Commission received a second complaint from a resident at Seascapes regarding Superior Propane. Both complainants consented to have their complaints reviewed jointly;
C. Superior Propane has not applied for, nor been granted, a Certificate of Public Convenience and Necessity nor has it made an application for approval of rates for public utility service. Prior to the date of this Order, Superior Propane was not operating under regulatory oversight under the Utilities Commission Act (UCA);
D. On April 25, 2014 and June 3, 2014, letters were sent to Superior Propane requesting specific information about Superior Propane in order to determine if it is a public utility under the UCA and if the complaints received were within the Commission’s jurisdiction. Responses were received and answers to the requested information were provided;
E. On May 23, 2014, the Commission received a response from Mr. Jim Reimer, Superior Propane General Manger - Pacific Region in which Mr. Reimer submits that Superior Propane supplies propane services (Services) to all strata lot owners at Seascapes pursuant to contractual arrangements with each homeowner. Superior Propane also submitted reasons why it is not a public utility under the UCA;
F. The Commission reviewed the information provided by Superior Propane, the Complainants and the interested parties and issued Order G-91-14 dated July 10, 2014, which ordered that:
(i) The person, or the person’s lessee, trustee, receiver or liquidator, who owns or operates Superior Propane at Seascapes Strata BCS 776 is operating as a public utility as defined by the Utilities Commission Act.
(ii) Superior Propane must provide details of its legal ownership structure and status of the division of Superior Plus LP doing business under the name Superior Propane. This information is due within 14 days of this Order.
(iii) Superior Propane must file its schedule of its current rates with the Commission as soon as possible but no later than 14 days from the date of this Order, for immediate review by the Commission.
(iv) Superior Propane must make application to the Commission for its rates, including a proposal for an appropriate regulatory process to review this application, no later than 30 days from this Order. The Commission encourages Superior Propane to meet with Commission staff prior to making this application to discuss its content and structure.
(v) Superior Propane must familiarize itself and comply with its obligations under the Utilities Commission Act.
(vi) Superior Propane must provide a copy of this Order and attached Reasons for Decision to all of its customers.
G. On July 31, 2014, Superior Propane contacted the Commission regarding the requirements for the application;
H. On August 6, 2014, Superior Propane filed a letter with the Commission stating that it is in the course of compiling information required to make this application, and has made a request through counsel to meet with Commission staff as suggested in the Order. Superior Propane requests an extension of the date for filing its application to a date to be determined following the meeting with Commission staff;
I. On August 7, 2014, the Commission reviewed the request for the application filing date extension and by Order G-113-14 granted the request. The Order required that Superior Propane must complete its meetings with Commission staff by August 21, 2014 and Superior Propane must make application to the Commission for its rates, tariff and terms and conditions of service by September 5, 2014;
J. On September 4, 2014, Superior Propane filed an application with the Commission for Reconsideration of Order G-91-14 pursuant to section 99 of the UCA and a stay of proceedings pursuant to section 77 of the UCA, specifically the rates application required under the Order pending a determination of the reconsideration application;
K. By letter dated September 5, 2014, the Commission issued a letter stating that the Commission needs to provide the two complainants with the opportunity to comment on Superior Propane’s request for stay of proceedings and Superior Propane with the opportunity to reply before the Commission can rule on the request for stay. The Commission letter also stated that the directives of Order G-91-14 and Order G-113-14 remain in effect. The Commission requested that the two complainants provide their comments on Superior Propane’s request for stay of proceedings by Wednesday, September 10, 2014 and Superior Propane was required to file its reply by Friday, September 12, 2014;
L. The Commission reviewed the request for a stay of proceedings, the submissions received and considers that the request should be granted.
NOW THEREFORE pursuant to section 102(2) of the Utilities Commission Act, the British Columbia Utilities Commission orders as follows:
1. Superior Propane is granted a stay of proceedings, specifically the rates application required under Order G‑91-14, pending the determination of the reconsideration application.
2. Superior Propane must provide a copy of this Order to the Seascapes strata representative within five business days.
DATED at the City of Vancouver, in the Province of British Columbia, this 23rd day of September 2014.
BY ORDER
Original signed by:
B.A. Magnan
Commissioner
Attachment
Person(s) doing business as Seascapes Development and
Superior Propane
Stay of Proceedings Application
REASONS FOR DECISION
1.0 INTRODUCTION
By Order G-91-14, dated July 10, 2014, the British Columbia Utilities Commission (Commission) ordered that the person, or the person’s lessee, trustee, receiver or liquidator, who owns or operates Superior Propane at Seascapes Strata BCS 776 is operating a public utility as defined under the Utilities Commission Act. Order G-91-14 also ordered that Superior Propane must make application to the Commission for its rates, including a proposal for an appropriate regulatory process to review this application, no later than 30 days from the date of the order.
On August 6, 2014, Superior Propane filed a letter acknowledging that it made a request to meet with Commission staff and requested that the deadline for the filing of the Application be extended to a date to be determined following the meeting with Commission staff. By Order G-113-14, dated August 7, 2014, the Commission extended the filing deadline and ordered that Superior Propane complete its meeting with Commission staff by August 21, 2014. Order G-113-14 also ordered that Superior Propane must make application to the Commission for its rates, tariff and terms and conditions of service, including a proposal for an appropriate regulatory process to review this application, no later than September 5, 2014.
On August 11, 2014, Superior Propane filed an Application for Leave to Appeal with the Court of Appeal to Order G-91-14. The Leave Application was extended on September 16, 2014 to the earlier of:
• 31 days after the Commission determination that it will not conduct a reconsideration of Order G-91-14;
• 31 days after the final determination of the Commission on its reconsideration of G-91-14; and
• March 16, 2015.
2.0 APPLICATION
On September 4, 2014, Superior Propane filed an application with the Commission for Reconsideration of Order G‑91-14 pursuant to section 99 of the Utilities Commission Act (Act) and a stay of proceedings pursuant to section 77 of the Act, specifically the rates application required under the Order pending a determination of the reconsideration application.
Superior Propane’s specific request regarding the stay is:
“35. Superior Propane seeks a stay of proceedings in respect of the requirement to file an application for approval of its rates at Seascapes pending the decision of the Commission in respect of this reconsideration application. The reconsideration application raises an important issue concerning the proper interpretation of the [Utilities Commission] Act. If Superior Propane’s rates are ultimately subject to regulation by the Commission, their application can extend as and from the date of the Order. As such, the balance of convenience lies in deferring such proceedings until the reconsideration application is completed.”
3.0 REVIEW PROCESS
On September 5, 2014, the Commission issued a letter to Superior Propane stating that the Commission needs to provide the two complainants with the opportunity to comment on Superior Propane’s request for stay of proceedings and Superior Propane with the opportunity to reply before the Commission can rule on the request for stay. The Commission letter also stated that the directives of Order G-91-14 and Order G-113-14 remain in effect.
The Commission letter requested that the two complainants provide their comments on Superior Propane’s request for a stay of proceedings by Wednesday, September 10, 2014, and Superior Propane was required to file its reply by Friday, September 12, 2014.
By email dated September 7, 2014, Robert Hare stated that his wife, Averil, is away until late September 13 and that she will agree with the decisions of Council and Stratawest on this matter.
On September 9, 2014, Stratawest Management Ltd. (Stratawest) submitted a letter on behalf of the Strata Council for Strata Plan BNCS776 (Seascapes). Seascapes is concerned that the request by Superior will further delay proceedings and do not support it. Stratawest argued that Superior Propane should be held to the terms outlined in Order G-91-14 and provide the information in a timely manner. Stratawest stated that if the Commission determines there is merit to the Reconsideration there is no reason that the two processes cannot be held concurrently.
On September 11, 2014, Superior Propane submitted that a stay is both fair and efficient to the parties. If the Reconsideration upholds the order then the Commission determination on rates charged to Seascapes customers will have the effect as and from the date of the Order, which results in no issue of delay and there is no prejudice to Seascapes if the stay is granted. A rates application involves the preparation of material, engagement of experts by Superior Propane, and an appropriate regulatory process to review the application and Superior Propane submits it would be inefficient to commence a rates application and subsequently abandon it should the reconsideration be granted.
4.0 REGULATORY CONTEXT
The relevant section for the Commission to review a request for stay of proceedings is section 102(2) of the Act.
102 (1) An appeal to the Court of Appeal does not of itself stay or suspend the operation of the decision, order, rule or regulation appealed from, but the Court of Appeal may grant a suspension, in whole or in part, until the appeal is decided, on the terms the court considers advisable.
(2) The commission may, in its discretion, suspend the operation of its decision, order, rule or regulation from which an appeal is taken under section 101 (1) (b) until the decision of the Court of Appeal is given.
(3) An appeal to the Supreme Court under section 101 (1) (a) operates as a stay of the decision under section 109.2 to impose an administrative penalty, unless the court orders otherwise.
If Superior Propane was requesting an extension to the filing deadlines of Order G-91-14 or Order G-113-14 then section 77 of the Act would be relevant.
77 If a work, act, matter or thing is, by order or decision of the commission, required to be performed or completed within a specified time, the commission may, if the circumstances of the case in its opinion so require, extend the time so specified
(b) in its discretion, on application, without notice to any person.
Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832, [1987] 1 SCR 110 provides a three part test for an application for a stay. An order staying a proceeding or staying execution should be made where the applicant for the order:
(a) Has a serious question to be tried, as opposed to a frivolous or vexatious claim.
(b) Would suffer irreparable harm (harm not compensable or not easily compensable in damages) if the stay were refused.
(c) Would, on the balance of inconvenience, suffer more harm, if a stay were not ordered, than a respondent would suffer if it were.
5.0 MATTERS IN ISSUE
By Order G-91-14 the Commission declared that the person, or the person’s lessee, trustee, receiver or liquidator, who owns or operates Superior Propane at Seascapes Strata BCS 776 is operating a public utility as defined under the Utilities Commission Act. Order G-91-14 also ordered that Superior Propane must make application to the Commission for its rates, including a proposal for an appropriate regulatory process to review this application, no later than 30 days from the date of this order.
Superior Propane is required to file a rates application as required by Order G-91-14 and pursuant to section 61(3) of the Act, the rates in schedules as filed and as amended in accordance with the Act are the only lawful, enforceable and collectable rates of the public utility, and no other rate may be collected, charged or enforced.
Rate schedules to be filed with commission
61 (1) A public utility must file with the commission, under rules the commission specifies and within the time and in the form required by the commission, schedules showing all rates established by it and collected, charged or enforced or to be collected or enforced.
(2) A schedule filed under subsection (1) must not be rescinded or amended without the commission's consent.
(3) The rates in schedules as filed and as amended in accordance with this Act and the regulations are the only lawful, enforceable and collectable rates of the public utility filing them, and no other rate may be collected, charged or enforced.
….
6.0 COMMISSION DETERMINATION
The Commission evaluated the stay application in accordance with the three part test from section 4 of these Reasons. The Commission accepts Superior Propane’s submission that the proper interpretation of the Act is a serious question to be tried. With regard to the issue of irreparable harm, the Commission also accepts Superior Propane's submission that it will be inefficient to incur the resources to file the rate application if its reconsideration is allowed. Its costs for filing the application may not be recoverable from customers and it will thereby suffer irreparable harm. The Commission also accepts that delay may cause the customers irreparable harm if the rate proceedings are delayed.
The Commission finds that the balance of convenience favours granting the stay. The harm to the customers from delaying the proceedings is ameliorated by the fact that Superior Propane's request for a stay means that it does not have filed rates under the Act and pursuant to section 61 of the Act does not have Commission approval for lawful, enforceable and collectable rates if the reconsideration decision is denied. Therefore, the Commission grants a stay as requested by Superior Propane.