Docket UE20315
Order UE95-2

IN THE MATTER of an application and complaint by the City of Summerside filed pursuant to the Maritime Electric Company Limited Regulation Act.

BEFORE THE COMMISSION

on Tuesday, the 15th day of August, 1995.

Linda Webber, Chair
Deborah MacLellan, Commissioner
Anne McPhee, Commissioner

Order

WHEREAS:

On May 11 1995, the Commission issued Directions on Procedure setting the dates for the hearing of the within application and complaint. Among other things, the Commission directed that the written evidence of the witnesses to appear before the Commission was to be prefiled as follows:

Witnesses for the City of Summerside ("Summerside" or "City"): June 30, 1995

Witnesses for Maritime Electric Company, Limited ("Maritime Electric" or "Company"): July 28, 1995.

The Directions also established the following hearing dates:

August 29, 30, 31

September 6, 7, 8

October 3, 4, 5, 6 and October 10, 11, 12, 13

In accordance with the Directions on Procedure, Summerside filed its written evidence on June 30, 1995. However, on July 13, 1995, Maritime Electric filed an application for an extension of the Commission’s July 28, 1995 filing deadline.

A hearing to consider this application was held in Charlottetown on July 26, 1995. An oral decision granting a filing extension to August 31, 1995 was issued following the hearing, with reasons to follow. The hearing will now commence on October 3, 1995.

In its application to the Commission, the Company submitted that a filing extension was necessary to allow it time to provide an expert witness on the difference between price cap regulation and cost of service regulation. The Company maintained that it could not have anticipated the position taken by the City’s witnesses as set out in Summerside’s June 30, 1995 prefiled evidence. According to the Company:

What is really at issue in this case then, or certainly a major issue, is something that Maritime Electric had no reason to anticipate and which, in any case, it certainly did not anticipate - whether the legislation reflects cost of service regulation or price regulation. Summerside’s position is the former; Maritime Electric’s is that it is the latter. And much of the case will turn on the Commission’s resolution of that issue.1

The Company has suggested that, from a reading of the initial application and complaint, one could not reasonably have assumed that Summerside would be advancing the proposition that cost of service regulation now applies. The Company argued that Summerside would not be prejudiced by a filing extension and hearing delay as the Company understood that the Commission had authority to refund any overpaid amounts. In addition the Company has given an undertaking to compensate the City for any overpaid amounts.

Summerside opposed the application for several reasons. Among them, Summerside suggested that the Company should have known that the City would be advocating cost of service principles. According to Counsel for Summerside:

The affidavit of Don Forbes at section 14 says that the rate classifications and terms and conditions are unfair, unjust, unreasonable and improper. These are considerations - these are words and these words fair, just, reasonable, appear in the Act. They’re meaningful. We’re not posturing, they appear in the Act at section 2 - and at section 6 of the Act. And whether or not the rate/rate classification, terms, conditions, - whether they are fair, just and reasonable, certainly have a bearing on whether or not the terms and rate classifications are proper or appropriate.2

Counsel for Summerside, Mr. Taylor, also submitted that a delay would prejudice the City:

Delay costs justice, it costs certainty, impedes planning, impedes predictability, even if it can be said that there’s a - will be reckoning at the end of the road.3

The Commission is of the view that an extension in the filing deadline is reasonable. The Commission believes that Maritime Electric could not have reasonably anticipated the position taken by Summerside’s witnesses. The general words "unfair, unjust, unreasonable and improper" found in Mr. Forbes’ affidavit are much more vague than the cost of service arguments found in the City’s evidence. The case it had to meet would thus only be known by the Company upon receiving the City’s evidence. Procedural fairness requires that the Company be given a reasonable amount of time to prepare its submission.

While the Commission recognizes that there is value to the City in having these matters resolved quickly, all of the interests concerned must be weighed. An issue that affects all ratepayers in P.E.I. has been raised by the City. This issue goes to the heart of the Maritime Electric Company Limited Regulation Act, questioning the fundamental basis upon which it is to be interpreted.

The Act is new legislation and no decisions have ever been reached on matters falling within the Commission’s jurisdiction under the Act. As such, the Commission must be cognizant of the significance of the suggestion put forward by the City and the need to ensure that the issues are fully canvassed before the Commission makes a decision. The Commission believes that the evidence Maritime Electric seeks time to prepare may be of assistance in the determination of these important matters. Moreover, should Summerside succeed in its complaint, the Commission believes that any delays that may occur as a result of this extension can be reasonably remedied by way of a refund of any overpayment found to have been made.

IT IS THEREFORE ORDERED THAT

1. The deadline for receipt of the written evidence of Maritime Electric’s witnesses is extended to Thursday, August 31, 1995; and

2. The hearing of the application and complaint will now commence on October 3, 1995 and will continue on October 4, 5, 6, 10, 11, 12, and 13 as previously scheduled and such other dates as may be later determined by the Commission.

DATED at Charlottetown, Prince Edward Island, this 15th day of August, 1995.

BY THE COMMISSION:

Linda Webber, Chair

Deborah MacLellan, Commissioner

Anne McPhee, Commissioner

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act 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.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide 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.

1 July 13, 1995 written submission of William G. Lea, Q.C.

2 Oral argument of Benjamin B. Taylor, Q.C. (partial transcript, July 26, 1995).

3 Ibid.