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Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
An Act to Amend the Public Utilities Act
 
Legislature :
54
Session :
4
Bill No. :
53
Member :
Hon. Volpé
First Reading :
2002-5-23
Second Reading :
2002-5-24
Committee of the Whole :
2002-5-29
Amended :
Third Reading :
2002-5-30
Royal Assent :
2002-6-7
        
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Text of Bill :
                                                                  
   Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1                   Section 1 of the Public Utilities Act, chapter P-27 of the Revised Statutes, 1973, is amended

   (a)       by adding the following definitions in alphabetical order:

   “alternative form of regulation” means a method of establishing just and reasonable charges, rates, tolls and tariffs by performance based regulation, including earnings
sharing, price caps, price indexing formulas, ranges of authorized rates of return, and the reduction or suspension of regulatory requirements, without regard to methods based
strictly upon cost of service, rate base and rate of return;
   
   “ancillary service” means a service that is necessary to support the transmission of capacity and energy from resources to loads while maintaining reliable operation of the
transmission service;
   
   “electronic hearing” means a hearing held by telephone conference or some other form of electronic technology allowing persons to hear one another;
   
   “oral hearing” means a hearing at which the parties or their counsel or agents attend before the Board in person;
   
   “tariff” means a schedule of all charges, rates and tolls, terms and conditions, and classifications, including rules for calculation of tolls, established for the provision of either
or both of the following:
   
   (a)       a transmission service by a public utility;
   
   (b)       an ancillary service by a public utility;
   
   “transmission service” means the movement or transfer of electric energy over an interconnected group of lines and associated equipment between points of supply and
points at which it is transformed for delivery to a consumer or is delivered to another electric system;
   
   “written hearing” means a hearing held by exchanging documents, whether in written form or electronically.

   (b)       in the definition “public utility”

      (i) by striking out “city or town” and substituting “municipality”;

      (ii)                      by striking out the period at the end of the definition and substituting a semicolon;

   (c)       in the French version of the definition “Ministre” by striking out the period at the end of the definition and substituting a semicolon.

2                   Section 2 of the Act is amended

   (a)       by adding after subsection (1.01) the following:

2(1.02)   The Board may enter into leases, licenses, agreements and contracts for provision to the Board of services, accommodations and other matters necessary for the
functioning of the Board as an administrative tribunal.

2(1.03)   The Board may sue and be sued solely with respect to the enforcement of the leases, licenses, agreements and contracts referred to in subsection (1.02).

2(1.04)   Nothing in this section shall be construed as authorizing any action, suit or other legal proceeding against the Board for or arising out of any decision, order or direction
given or made by the Board exercising the power or jurisdiction of the Board under this Act or any other Act.

   (b)       by repealing subsection (4) and substituting the following:

2(4)            The Board may appoint a secretary and an assistant secretary of the Board who shall be employees of the Board.

3                   Subsection 6(4) of the Act is amended by striking out “public hearing” and substituting “hearing”.

4                   The Act is amended by adding after section 8.2 the following:

8.3(1)      For the purposes of this Act, the Board has full jurisdiction to hear and determine all matters, whether of law or of fact.

8.3(2)      Any order of the Board made under this Act is subject to such terms and conditions as the Board considers necessary in the public interest.

8.3(3)      The Board may, if not satisfied that charges, rates, tolls or tariffs applied for are just and reasonable, fix such other rates and tariffs as it finds to be just and reasonable.

8.3(4)      In approving or fixing reasonable and just charges, rates, tolls and tariffs, the Board may adopt any method or technique that it considers appropriate, including an
alternative form of regulation.

8.3(5)      In an application regarding charges, rates, tolls and tariffs the burden of proof is on the applicant.

8.4(1)      The Board may inquire into, hear and determine any matter

   (a)       where it appears to the Board that any person has failed to do any act, matter or thing required to be done by this Act or by any regulation or rule or any order or
   direction made by the Board, or that any person has done or is doing any act, matter or thing contrary to or in contravention of this Act or any regulation or rule or order or
   direction; or
   
   (b)       where it appears to the Board that the circumstances may require it, in the public interest, to make any order or give any direction, leave or approval that by law it is
   authorized to make or give, or concerning any matter, act or thing that by this Act or any regulation or rule or order or direction is prohibited or required to be done.

8.4(2)      The Board may

   (a)       order and require any person to do, forthwith, or within or at any specified time and in any manner it may determine, any act, matter or thing that the person is or may be
   required to do under this Act or any regulation or rule or any order or direction made or given under this Act; and
   
   (b)       forbid the doing or continuing of any act, matter or thing that is contrary to this Act or any regulation or rule or order or direction.

8.4(3)      The Board may inquire into, hear or determine any application, matter or thing that under this Act it may inquire into, hear or determine, and in doing so the Board

   (a)       is, subject to a regulation made under section 8, the master of its own procedure and regarding any matter may give directions about process and procedure that it
   considers appropriate in the circumstances, including a direction for an electronic hearing, a written hearing, an oral hearing or a pre-hearing conference;
   
   (b)       may request from anyone, and require anyone to prepare, evidence or studies relevant and incidental to the matters over which it has jurisdiction under this Act;
   
   (c)         is not required to hold an oral hearing unless it considers it necessary to do so in order to act in a procedurally fair manner;
   
   (d)       shall ensure procedural fairness to all affected persons;
   
   (e)         is not bound by any common law rule of evidence except that the evidence it considers shall be relevant, material and trustworthy as it determines; or
   
   (f)         may make orders allowing evidence to be taken outside the Province and used in its proceedings.

8.5(1)      The Board may appoint counsel, experts, or inspectors to assist it in any matter within its jurisdiction under this Act or to institute or attend proceedings before any other
tribunal or authority, and the Board may order by whom the fees and expenses of the persons so appointed shall be paid.

8.5(2)      Where the Board appoints any counsel, expert or inspector under subsection (1) to perform any service under this Act, that person shall be paid by the Board, and shall
be reimbursed for expenses, at rates fixed by the Board.

8.6               Upon any application to it, the Board may make an order granting the whole or part only of the application, make a conditional order, or grant further or other relief
besides or instead of that applied for, as fully and in all respects as if the application had been for such partial, further or other relief.

8.7(1)      Substantial compliance with the requirements of this Act is sufficient to give effect to all orders, rules or decisions of the Board, and they are not invalid for any technical
or non-material defect.

8.7(2)      Subject to sections 40 and 46, every order of the Board comes into effect on the date it is made unless the order states otherwise and an appeal to the Court under this Act
does not stay its operation, unless a judge of the Court orders otherwise; but the Board itself may suspend the operation of the appealed order until the Court has rendered its
decision.

8.8(1)      A public utility to whom the Board makes a request for documents or information of any kind shall furnish the required information to the Board.

8.8(2)      Where a document purports to be a copy of any rule, order, direction, decision or report made or given by the Board or any of its officers, it shall be received in evidence
as prima facie proof of the original document.

8.8(3)      Any document purporting to be certified by the Board secretary as a copy of any document deposited with the Board, or of any extract of a Board document, shall be
received in evidence as prima facie proof that the original was so deposited, that it was received, signed, certified, attested or executed as it purports to be from the certified copy.

8.8(4)      A copy of an order, rule or other document on record with the Board, purporting to be certified by the secretary of the Board, shall be received in evidence as prima facie
proof of the document.

8.8(5)      The Minister defined in section 1 and any other minister, Service New Brunswick, a Crown corporation or other agency of the Province shall furnish the Board with such
certificates and certified copies of documents as it may in writing require, without charge, and the Board may at any time search in the public records of Service New Brunswick
without charge.

8.9(1)      The Board may forbear, in whole or in part and conditionally or unconditionally, from the exercise of any power or the performance of any duty of its own making, where
the Board finds as a question of fact that forbearance would be consistent with the purpose of this Act.

8.9(2)      Where the Board finds as a question of fact that a service offered by a public utility is or will be subject to effective competition sufficient to protect customers’ interests,
it shall make a determination to forbear, to the extent it considers appropriate, conditionally or unconditionally, from regulating the charges, rates, tolls or tariffs or other
contractual provisions of that service or class of service offered by a public utility.

8.9(3)      If the Board does forbear from regulation, it may later resume a greater degree of regulation if it considers that its level of forbearance is no longer warranted.

5                   Section 22 of the Act is amended by adding after subsection (1) the following:

22(1.1)   Where an application has been made and notice given, the Board shall hold a hearing in accordance with this Act.

6                   The Act is amended by adding immediately after the heading “APPLICATION” and before section 35 the following:

34.3          This Part applies to the New Brunswick Power Corporation in respect of services, except transmission services and ancillary services, provided by the New Brunswick
Power Corporation.

34.4          An application to the Board under this Part may be joined with an application to the Board under Part III.

7                   Subsection 35(1) of the Act is amended in the portion preceding paragraph (a) by striking out “8.2” and substituting “8.2 to 8.9”.

8                   Section 36 of the Act is repealed and the following is substituted:

36                Subject to sections 40.1, nothing in this Act shall be construed so as to authorize the Board to regulate the affairs of the New Brunswick Power Corporation, to
recommend or to approve its borrowing, its maintenance or reconstruction of existing facilities, or its contracts for the sale to or the purchase from entities outside the Province.

9                   Section 38 of the Act is repealed and the following is substituted:

38(1)       The New Brunswick Power Corporation may, except for transmission services and ancillary services, change the charges, rates and tolls charged by it for services
performed within the Province without making an application to the Board for approval of the change if the change does not exceed the amount authorized under section 38.1.

38(2)       If the change exceeds the amount authorized under section 38.1, the New Brunswick Power Corporation shall, not later than thirty days after the date upon which the
change in the charges, rates and tolls takes effect, make an application to the Board for approval of the change.

38(3)       The New Brunswick Power Corporation may under this section change the charges, rates and tolls more than once in any fiscal year but in no case shall the total increase
during a fiscal year exceed the amount authorized under section 38.1.

38(4)       The New Brunswick Power Corporation may, when making an application under this section, make an application for approval of a change in the charges, rates and tolls
to be charged by it at a future date.

38(5)       The Board shall, upon receipt of an application under this section, proceed under section 22.

38(6)       The Board at the conclusion of the hearing shall

   (a)       confirm, alter, reduce or modify the charges, rates or tolls charged by the New Brunswick Power Corporation, and
   
   (b)       where the Board alters, reduces or modifies the charges, rates or tolls charged by the New Brunswick Power Corporation or approves a change in the charges, rates or
   tolls in relation to an application made under this section, set the time at which any change in the charges, rates or tolls is to take effect except that a change in the charges,
   rates or tolls may not take effect until the expiration of thirty days after the filing of the order or decision of the Board with the President of the Executive Council under section
   45.

10                Subsection 38.1(1) of the Act is amended in the portion preceding paragraph (a) by striking out “services” and substituting “services, except transmission services
and ancillary services,”.

11                Section 39 of the Act is amended

   (a)       in subsection (1) by striking out “section 38” and substituting “this Part”;
   
   (b)       in subsection (2.1) by striking out “subsection 38(2.1)” and substituting “this Part”.

12                Section 41.1 of the Act is amended in the portion preceding paragraph (a) by striking out “section 38” and substituting “this Part”.

13                Subsection 46(1) of the Act is amended in the portion preceding paragraph (a) by striking out “Board” wherever it appears and substituting “Board under this Part”.

14                The Act is amended by adding after section 51 the following:

                                                                                     PART III
                                                                                 APPLICATION
52                This Part applies to

   (a)       all public utilities, including the New Brunswick Power Corporation, providing transmission services and ancillary services, and
   
   (b)       the tariffs pertaining to the provision of transmission services and ancillary services.

53(1)       For the purposes of greater clarity, the Board established and constituted under section 2 has and may exercise all of the powers given to it under sections 6.1, 8, 8.2 to
8.9. 21 and 24 in relation to

   (a)       any application or proceeding before the Board under this Part, and
   
   (b)       the provisions referred to in subsection (2) as those provisions by virtue of subsection (2) apply to the New Brunswick Power Corporation.

53(2)       Notwithstanding the definition of “public utility” in section 1, the New Brunswick Power Corporation is a public utility for the purposes of section 6, 7.1, 8.1, 9, 10, 17, 18,
20, 22, and 25.

53(3)       Subsection 2(1.01), and sections 5, 7, 11, 14, 15, 19, 26, 27, 28, 29, 30, 31, 32, 33 and 34 do not apply to the New Brunswick Power Corporation.

53(4)       Sections 14, 15 and 16 do not apply to a public utility, including the New Brunswick Power Corporation, in respect of an application made under this Part.

                                                          TRANSMISSION SERVICES AND ANCILLARY SERVICES
54                A tariff pertaining to the provision of transmission services shall provide for open access to transmission services.

55                Unless approval to do so has been obtained from the Board under this Part, no public utility shall charge or change any charge, rate or toll or any tariff in respect of
transmission services or ancillary services.

56                A public utility may make application to the Board for approval of the tariff pertaining to the provision of transmission services or ancillary services, or both, by the
public utility.

57(1)       The Board shall, upon receipt of an application for approval of a tariff pertaining to transmission services or ancillary services, or both, proceed under section 22.


57(2)       The Board at the conclusion of the hearing shall

   (a)       confirm, alter, reduce or modify the tariff, and
   
   (b)       where the Board alters, reduces or modifies the tariff or approves a change in the tariff, set the time at which any change in tariff is to take effect.

58                All tariffs shall be just and reasonable, and shall always, under substantially similar circumstances and conditions with respect to all traffic carried over the same route, be
charged equally to all persons at the same rate.

59                The Board may determine, as questions of fact, whether or not traffic is or has been carried under substantially similar circumstances and conditions referred to in section
58, whether in any case a person has or has not complied with the provisions of that section, and whether there has, in any case, been unjust discrimination within the meaning of
section 17.

                                                                        COLLECTION UNDER A TARIFF
60                A public utility shall not charge, demand, collect or receive a greater or less compensation for transmission services or ancillary services than is prescribed in the tariff
filed with the Board.

                                                                                     REVIEW
61(1)       The Lieutenant-Governor in Council may request the Board to review all or any portion of a tariff filed with the Board in respect of the provision of transmission services
or ancillary services.

61(2)       The Board shall, upon receipt of a request made under subsection (1),

   (a)       direct the public utility to file an application for confirmation of any or all of the tariff,
   
   (b)       give notice to the public utility of the date of the hearing of the application, and
   
   (c)         proceed under section 22.

61(3)       The Board at the conclusion of the hearing shall

   (a)       confirm, alter, reduce or modify the tariff, and
   
   (b)       set the time at which any change in the tariff is to take effect.

                                                                               CONSIDERATIONS
62(1)       The Board shall, when considering an application by a public utility in respect of an approval of a tariff pertaining to transmission services, base its order or decision
respecting the tariff on all of the projected revenues and all of the projected costs of the provision of transmission services.

62(2)       The Board shall, when considering an application by a public utility in respect of an approval of a tariff pertaining to ancillary services, base its order or decision
respecting the tariff on all of the projected revenues from the sale of ancillary services and all of the projected costs to be incurred by the public utility in the acquisition of
ancillary services.

                                                                        FILING OF ORDER OR DECISION
63                The Board shall file a copy of its order or decision respecting a tariff for transmission services and ancillary services with the President of the Executive Council.

Consequential amendment
15                Section 1 of the Gas Distribution Act, 1999, chapter G-2.11 of the Acts of New Brunswick, 1999, is amended by repealing the definition “alternative form of
regulation” and substituting the following:

   “alternative form of regulation” means a method of establishing just and reasonable charges, rates and tariffs by performance based regulation, including earnings sharing,
price caps, price indexing formulas, ranges of authorized rates of return, and the reduction or suspension of regulatory requirements, without regard to methods based strictly
upon cost of service, rate base and rate of return;

Transitional and savings provisions
16(1)       In this section

   “public utility” includes the New Brunswick Power Corporation.

16(2)       Where, on the commencement of this section, a public utility is providing transmission services or ancillary services, or both, that public utility shall

   (a)       continue to provide transmission services or ancillary service, or both, at the charge, rate, toll or tariff in effect immediately before the commencement of this section
   and that charge, rate, toll or tariff shall remain in effect until the Board approves a proposed tariff under this Part pertaining to the provision of transmission services or
   ancillary services, or both, and

   (b)       within sixty days of the commencement of this section,

      (i) file a proposed tariff pertaining to the provision of transmission services or ancillary services, or both, with the Board, and

      (ii)                      apply, at the same time, for approval of the proposed tariff pertaining to the provision of transmission services or ancillary services, or both.

16(3)       Subsection (2) does not apply to W.P.S. Canada Generation, Inc. in respect of the contract between W.P.S. Canada Generation, Inc. and the Perth-Andover Electric
Power Commission effective January 2, 1995, and W.P.S. Canada Generation, Inc. may continue to provide service in accordance with that contract until the contract
terminates on December 31, 2004.

16(4)       With respect to the provision of transmission services to parties other than the Perth-Andover Electric Light Commission, WPS Canada Generation, Inc., shall not be
required to have an approved tariff in place until December 31, 2004 but WPS Canada Generation, Inc., shall not be precluded from making an application or receiving
approval for a tariff in respect to transmission services with an effective date prior to December 31, 2004.

17                This Act or any provision of it comes into force on a day or days to be fixed by proclamation.



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Legend
* Private Bill
** Bill referred to Standing Committee on Law Amendments
+ Private Member's Public Bill
++ Motion for second reading defeated
+++ Debate at second reading adjourned
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