In its decision in North Vancouver (City) v British Columbia (Utilities Commission) ("Utilities Commission")1, the British Columbia Court of Appeal (the "BCCA") made clear it will not entertain—and will quash—an appeal outside its statutory jurisdiction even though leave to appeal was granted.
Background
Utilities Commission concerns appeals challenging a finding of the British Columbia Utilities Commission (the "Commission").2 The Commission regulates utilities under the Utilities Commission Act (the "UCA").3 Under the UCA, "public utility" excludes "a municipality or regional district in respect of services provided by the municipality or regional district within its own boundaries"(the "Municipal Exclusion").4
In 2019, an inquiry by the Commission considered the scope of the Municipal Exclusion.5 The Commission found the exclusion "does not apply to Corporations wholly owned and operated by local municipalities that service only the local municipality" (the "Finding").6
The appellants sought leave to appeal the Finding to the BCCA under s. 101(1)(b) of the UCA, which provides an appeal to the BCCA from any "decision or order of the Commission to the Court of Appeal, with leave."7 In May 2023, Justice Marchand granted leave to appeal on the issue surrounding the Finding.8
BCCA Decision
The BCCA quashed the proposed appeal. It held it did not have jurisdiction to entertain the appeal or interfere with the Finding.9
The BCCA's decision turned on the interpretation of the UCA's appeal provision. At the start of the hearing, the BCCA questioned whether the Finding was a "decision or order" of the Commission such that it had jurisdiction.10 It did so even though no party had raised this issue during the leave application and all parties agreed the BCCA had jurisdiction to hear the appeal.11
To determine whether the Finding was a "decision or order", the BCCA considered the general scope of appellate courts.12 It concluded that appealable orders are decisions about procedural or substantive rights.13 However the Finding was merely an opinion about interpretation—not a determination affecting the appellants' operations.14 Thus it was not a "decision or order". If the Commission applies the Finding to make a "formal and binding decision", an affected party will then be able to seek leave to appeal.15
Key Takeaways
Utilities Commission is consistent with caselaw on the scope of appeal powers outside the UCA context and reiterates the limits of appellate courts. The BCCA may hear an appeal only where permitted by statute.16 Only the Commission's decisions or orders are appealable, not its findings or interpretations.
Utilities Commission is a reminder that even after leave is granted, an appellate court may still refuse to entertain an appeal and quash it. Where the court's jurisdiction to hear an appeal may be in doubt, it may be prudent in some cases for prospective appellants to raise that issue when seeking leave to avoid proceeding with a futile appeal.
Although the BCCA did not weigh in on the Finding, it is possible it someday will.17 The Commission's position is that the Municipal Exclusion does not apply to a Corporation that is entirely owned and operated by a local municipality and solely provides services to that municipality.
Case Information
North Vancouver (City) v British Columbia (Utilities Commission), 2024 BCCA 221
Docket: CA48731; CA48732; CA48739; CA48740
Date of Decision: June 11, 2024
Footnotes
1. 2024 BCCA 221 [Utilities Commission] .
2. Utilities Commission at para 1.
3. RSBC 1996, c 473 [UCA].
4. UCA, s 1; British Columbia Utilities Commission, Inquiry into the Regulation of Municipal Energy Utilities: Final Report, Stage 1 (10 November 2022) at i [Final Report].
5. Final Report at i.
6. Utilities Commission at para 9; Final Report at 45.
7. UCA, s 101(1)(b).
8. North Vancouver (City) v British Columbia (Utilities Commission), 2023 BCCA 203 at paras 47-48.
9. Utilities Commission at paras 20-21.
10. Utilities Commission at para 3.
11. Utilities Commission at paras 4-5.
12. Utilities Commission at paras 13-14.
13. Utilities Commission at para 14, citing, inter alia, Badela v Donald, 2024 BCCA 215 at paras 14-17.
14. Utilities Commission at para 16.
15. Utilities Commission at para 20.
16. Utilities Commission at para 3.
17. Utilities Commission at paras 16-20.
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