Order P.921008 - Petroleum - Morell Service Station - Emmett & Jean Eldershaw

Order No. P.921008

IN THE MATTER of Section 46 of the Petroleum Products Act, Stats. P.E.I. 1990, Cap. 43;

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IN THE MATTER of alleged non-compliance with Section 30 (b) of the Petroleum Products Act, supra, in respect of MORELL SERVICE STATION, owned by Emmett and Jean Eldershaw, and operated by Emmett Eldershaw, holder of Petroleum Products License No. D2038-00.

Thursday, the 8th day of October, A.D., 1992

BEFORE

Linda Webber, Chairman
John Blakney, Vice-Chairman
Anne MacPhee, Commissioner

Decision and Order

APPEARANCES AND WITNESSES

Participants in the hearing and the parties for whom they appeared were as follows:

FOR MORELL SERVICE STATION, RESPONDENT:

Witnesses:
Mr. Emmett Eldershaw, Morell Service Station
Mr. Howard Bowie, Imperial Oil Limited
Mrs. Jean Eldershaw, Morell Service Station

FOR THE COMMISSION:

(Mrs.) H. Doris Pursey, Director - Petroleum Division
Mr. Harry MacDonald (Witness) - Assistant to Director - Petroleum Division

RECORDING SECRETARY:

(Mrs.) Faye Weeks

Decision

I. INTRODUCTION

On the 27th day of August, 1992, the Island Regulatory and Appeals Commission ("the Commission") issued a Notice of Hearing indicating that a hearing respecting alleged pricing violations by Emmett Eldershaw, operator of Morell Service Station and holder of Petroleum Products License No. D2038-00 issued under the Petroleum Products Act, supra, would commence on Monday, the 14th day of September, 1992, at the hour of 9:30 a.m. Notice of the hearing was served on Mr. Eldershaw by Mr. Harry MacDonald, Commission Staff Member, on 27 August 1992. A copy of this Notice was also served on Mr. Howard Bowie of Imperial Oil Limited (supplier of petroleum products to Morell Service Station) on 28 August 1992.

II. EVIDENCE

Mr. Harry MacDonald, Assistant to the Director, gave evidence on pricing violations which he alleged had occurred at the outlet on 5 March 1992, 30 June 1992 and 4 August 1992. This evidence was supported by copies of priced invoices obtained from the supplier of the outlet, Imperial Oil Limited, which invoices were entered as exhibits in the hearing.

Mr. Eldershaw was present at the hearing on 14 September 1992 and gave evidence before the Commission with regard to this matter. Mr. Eldershaw did not take issue with the facts as presented by Mr. MacDonald, and did not object to the entering by Commission Staff of Exhibits 1 through 14. Mr. Eldershaw did not file any exhibits in rebuttal, and gave personal reasons as to why his prices were not in accordance with those approved by the Commission on those dates. Mr. Howard Bowie spoke in support of the Respondent and described an excellent business relationship with the Eldershaws over the past thirteen years, especially with respect to the honouring of any contractual arrangements with Imperial Oil Limited. Mrs. Jean Eldershaw testified that although she was the bookkeeper, she was not normally at the outlet, but that she would in the future check the invoices and assist her husband with establishing proper pump prices.

III. FINDINGS

The Commission has determined that breaches of Section 30(b) of the Petroleum Products Act, supra, by Emmett Eldershaw, operator of Morell Service Station, have taken place resulting from violations of Commission Order No. P.910424.

This determination is made based on the following findings of fact:

1. That according to the license renewal application form signed by Mr. Emmett Eldershaw on 5 March 1992 (Exhibit No. 6), the diesel fuel was priced below the minimum allowable price.

2. Exhibit No. 8 establishes that on 30 June 1992, the motor fuels at the Morell Service Station were priced as follows:

Regular Unleaded 63.0 cents per litre

Mid-Grade Unleaded 64.2 cents per litre

Premium Unleaded 65.4 cents per litre

Diesel 58.4 cents per litre

Exhibit No. 9 reveals that the maximum full-serve pump prices in cents per litre allowable as of that date for Imperial regular unleaded was 61.8, mid-grade unleaded was 63.0, premium unleaded was 64.2 and diesel was 57.8 -- thus the mark-up being taken by the dealer on all grades of gasoline was 1.2 cents and on diesel was 0.6 of a cent per litre above the per litre maximum mark-up permitted by the Commission Order No. P.910424.

3. Exhibit No. 11 establishes that on 4 August 1992, all pump prices at the outlet exceeded the maximum allowable prices by 0.1 of a cent per litre.

The Commission sees these instances as very serious and urges Mr. Eldershaw to pay very close attention to this matter in the future. At the same time, the Commission finds that the explanation given for these errors suggests that leniency would be appropriate in this instance, especially in light of Mrs. Eldershaw's promises to supervise pricing matters in the future.

Order

THE COMMISSION HEREBY ORDERS AS FOLLOWS:

1. THAT Emmett Eldershaw be issued a warning with respect to these breaches.

2. THAT Emmett Eldershaw institute whatever procedures are necessary to ensure that the public is protected from paying improper product prices at this outlet.

3. THAT should Emmett Eldershaw be again found to be posting unauthorized pump prices, serious consideration will be given by the Commission to imposing penalties as provided for in Section 41 of the Petroleum Products Act, supra, and/or suspending or cancelling the petroleum products license issued in respect of the outlet as provided for under Section 23 of the Act.

DATED at CHARLOTTETOWN this 8th day of October, A.D., 1992.

BY THE COMMISSION:

Chairman

Vice-Chairman

Commissioner