Northwestern Utilities Ltd. v. Edmonton (1978), 23 N.R. 565 (SCC)
MLB headnote and full text
Northwestern Utilities Ltd. v. City of Edmonton
Indexed As: Northwestern Utilities Ltd. v. City of Edmonton
Supreme Court of Canada
Laskin, C.J.C., Ritchie, Spence, Pigeon, Dickson, Estey and Pratte, JJ.
October 3, 1978.
Summary:
This case arose out of an application by Northwestern Utilities Ltd. to the Alberta Public Utilities Board for an order to fix and approve utility rates. In August 1974 Northwestern Utilities Ltd. applied for and received approval of interim rate increases based on projections of 1975 revenue and expenses. In 1975 before the board’s final disposition of the application, Northwestern Utilities Ltd. realized that the approved 1975 revenue was inadequate to meet expenses. Accordingly, Northwestern made another application in August of 1975 for an order for increased rates taking into account anticipated losses for 1975. The Public Utilities Board allowed the application and allowed Northwestern further rate increases which totalled $2,785,000.00. The City of Edmonton appealed the board’s order on the ground that the board could not take into account losses of Northwestern prior to the application date of August 1975.
The Alberta Court of Appeal allowed the appeal and remitted the matter back to the Public Utilities Board for reconsideration and decision, because the order appealed from did not set out the fact findings and reasons on which the decision was based as required by s. 8 of the Alberta Administrative Procedures Act. The Court of Appeal stated that it was unable to determine whether the board considered losses prior to August 1975 which was prohibited under the Alberta Gas Utilities Act. The judgment of the Alberta Court of Appeal is reported at 2 A.R. 317. Northwestern Utilities Ltd. and the Public Utilities Board appealed to the Supreme Court of Canada.
The Supreme Court of Canada dismissed the appeal and referred the matter back to the board for reconsideration.
Public Utilities – Topic 4665
Public utility commissions – Regulation of rates – Considerations in fixing rates – The Supreme Court of Canada referred to the proper considerations in fixing rates under the Alberta Gas Utilities Act (see paragraphs 4 to 7) – The Supreme Court of Canada stated that “losses” referred to in s. 31 of the Gas Utilities Act means revenue losses and does not refer to accounting losses calculated over a fiscal period (see paragraph 10).
Administrative Law – Topic 8843
Boards and tribunals – Capacity or status of a board to appear before the courts when its decisions are under judicial review – The Supreme Court of Canada stated that an active participation by a board in an appeal on the merits of a board’s decision discredits the impartiality of the board either in the case where the matter is referred back to the board or in future proceedings involving similar issues or the same parties (see paragraph 36) – The Supreme Court of Canada interpreted a statutory right of a board to participate in appeals from its decisions and stated that such a right should be limited in the absence of clear statutory expression (see paragraph 34) – See paragraphs 33 to 38.
Administrative Law – Topic 543
The hearing and decision – Form and content of decisions of a tribunal – Alberta Administrative Procedures Act, s. 8, required a tribunal, when its decisions “adversely affect the rights of a party”, to set out in its decision the findings of fact upon which it based its decision and the reasons for the decision – The Supreme Court of Canada referred to an order of the Alberta Public Utilities Board (see paragraph 28) and stated that the board failed to comply with the requirements of s. 8 (see paragraph 30).
Words and Phrases
Losses
– The Supreme Court of Canada discussed the meaning of the word “losses” as found in s. 31 of the Alberta Public Utilities Board Act, R.S.A. 1970, c. 302 (see paragraphs 8 to 10).
Cases Noticed:
City of Edmonton et al. v. Northwestern Utilities Limited, [1961] S.C.R. 392, refd to. [paras. 5 and 10].
City of Calgary and Home Oil Co. Ltd. v. Madison Natural Gas Co. Ltd. and British American Utilities Ltd. (1959), 19 D.L.R.(2d) 655, refd to. [para. 7].
R. v. Board of Commissioners of Public Utilities (N.B.), Ex parte Moncton Utility Gas Ltd. (1967), 60 D.L.R.(2d) 703, refd to. [para. 7].
Bradford Union v. Wilts (1868), L.R. 3 Q.B. 604, refd to. [para. 7].
Re Northwestern Utilities Ltd. et al. (1961), 25 D.L.R.(2d) 262, refd to. [para. 21].
Gill Lumber Chipman (1973) Ltd. v. United Brotherhood of Carpenters and Joiners of America Local 2142 (1974), 7 N.B.R.(2d) 41, refd to. [para. 29].
MacDonald v. The Queen (1976), 9 N.R. 271; 29 C.C.C.(2d) 257, refd to. [para. 29].
Re Canada Metal Co. Ltd. et al. and MacFarlane (1974), 1 O.R.(2d) 577, refd to. [para. 30].
Dome Petroleum Ltd. v. Public Utilities Board (Alberta) and Canadian Superior Oil Ltd. (1977), 2 A.R. 453, refd to. [para. 31].
Labour Relations Board of the Province of New Brunswick v. Eastern Bakeries Limited et al., [1961] S.C.R. 72, refd to. [para. 37].
Labour Relations Board of Saskatchewan v. Dominion Fire Brick and Clay Products, Limited et al., [1947] S.C.R. 336, refd to. [para. 37].
International Association of Machinists v. Genaire Ltd. and Ontario Labour Relations Board (1959), 18 D.L.R.(2d) 588, refd to. [para. 37].
Central Broadcasting Company Ltd. v. Canada Labour Relations Board and International Brotherhood of Electrical Workers, Local Union No. 529, 9 N.R. 345; [1977] 2 S.C.R. 112, refd to. [para. 37].
Re Canada Labour Relations Board and Transair Ltd. et al. (1976), 9 N.R. 181; 67 D.L.R.(3d) 421, refd to. [para. 38].
Statutes Noticed:
Public Utilities Board Act, R.S.A. 1970, c. 302, sect. 52(2) [para. 12]; sect. 63(2) [para. 34]; sect. 65 [para. 33].
Administrative Procedures Act, R.S.A. 1970, c. 2, sect. 8 [para. 28].
Gas Utilities Act, R.S.A. 1970, c. 158, sect. 31 [para. 8].
Counsel:
Tom Mayson, Q.C., for the appellant Northwestern Utilities Ltd;
W.J. Major, Q.C and C.K. Sheard, for the appellant Public Utilities Board of the Province of Alberta;
H. Patterson, Q.C., for the respondent, City of Edmonton.
This appeal was heard by LASKIN, C.J.C., RITCHIE, SPENCE, PIGEON, DICKSON, ESTEY and PRATTE, JJ. of the Supreme Court of Canada at Ottawa, Ontario on November 28, 1977.
The judgment of the Supreme Court of Canada was delivered by ESTEY, J. on October 3, 1978.
