Docket UE20927
Order No. UE01-2

IN THE MATTER of the January 1, 2001 Tariff filing of Maritime Electric Company, Limited.

and

IN THE MATTER of a Request for Review of Commission Order UE01-1.

BEFORE THE COMMISSION

On Tuesday, the 6th day of March, 2001.

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Maurice Rodgerson, Commissioner
Norman Gallant, Commissioner

Order

Contents

Reasons for Order

1. Introduction

2. Decision 

3. Disposition

Order

Reasons for Order

1.  Introduction

On February 22, 2001, Counsel for the Minister of Development and Technology (the “Minister”) in this proceeding, Douglas R. Drysdale, filed with the Commission a Request for Review of Commission Order UE01-1. The Order in question was issued by the Commission on February 19, 2001 in response to a question of law that arose on January 30, 2001 during a hearing into the January 1, 2001 Tariff of Maritime Electric Company, Limited (“Maritime Electric” or the “Company”).

The Request for Review is filed pursuant to Section 12 of the Island Regulatory and Appeals Commission Act, which reads as follows:

12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it. 

Counsel for the Minister contends, among other things, that the Commission misinterpreted or misunderstood the Minister’s written submissions on the issue or issues dealt with in Order UE01-1 and has thereby rendered an incorrect decision. Counsel further contends that the Commission’s decision is 

…not consistent with the principles of statutory interpretation, which require that words or phrases which do not appear in a legislative provision not be inserted, unless ambiguity requires such action.
(February 22, 2001 Submission of D. Drysdale, p.3)

Counsel for Maritime Electric, William G. Lea, opposes the request and seeks its dismissal on the ground that the Minister has not made out a case for review. According to Mr. Lea:

It is not sufficient on an application for review to simply allege an error. There is an onus on any applicant for review under a provision such as section 12 to establish that a review is appropriate in the circumstances of the case. In particular, an applicant must present a prima facie case for the proposition that the Commission made the error alleged—in this case, that the Commission misunderstood or misinterpreted the position of the Minister.
(February 26, 2001 Submission of W. Lea, p. 1)

Later in his submission, Mr. Lea had this to say:

Section 12 of the Island Regulatory and Appeals Commission Act, under which the Minister requests the Commission to review its order stipulates that the Commission  ‘may, in its absolute discretion, review … any order or decision made by it …’. For the reasons given above, I submit that this is not a case in which a review ought to take place. The request for a review is based on the allegation that the Commission misunderstood or misinterpreted the submissions made February 2, 2001 by the Minister. I submit that it is quite clear from the Commission’s February 19th reasons for order that the Commission understood perfectly what the Minister was arguing.
(February 26, 2001 Submission of W. Lea, p. 7)

2. Decision

In a number of cases over the years, the Commission has applied certain minimum criteria in establishing whether a review should be conducted pursuant to Section 12 of the Island Regulatory and Appeals Commission Act. These criteria are outlined in the submissions of Mr. Lea and need not be repeated herein.

It is, we believe, sufficient to say that Counsel for the Minister has not addressed these criteria.  It appears, based on his submissions, that he merely disagrees with the Commission’s findings and has taken the opportunity to further advance, in this review application, the same argument he advanced initially. 

For Counsel’s benefit, the Commission understands now and understood at the time it issued Order UE01-1 the argument of the Minister.  If the situation is as Counsel for the Minister contends, then he has the right to proceed directly to the Appeal Division of the Supreme Court of Prince Edward Island pursuant to subsection 13(1) of the Island Regulatory and Appeals Commission Act. However, there is nothing before the Commission that would indicate that a review pursuant to Section 12 should be conducted.

The request or application for review is dismissed. 

3. Disposition

An Order dismissing the request for review will therefore be issued.

Order

UPON the application of the Minister of Development and Technology for a review of Commission Order UE01-1;

AND UPON reading the written submissions of Counsel for the Minister and Counsel for Maritime Electric Company, Limited;

NOW THEREFORE for the reasons given in the annexed Reasons for Order, 

IT IS ORDERED THAT

1.  the application or request for review is dismissed.

DATED at Charlottetown, Prince Edward Island, this 6th day of March, 2001.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair

Ginger Breedon, Vice-Chair

Maurice Rodgerson, Commissioner

Norman Gallant, Commissioner

Notice:

Sections 13.(1) and 13(2) of the Act read as follows:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.