GSXCCC files EPA appeal with Court of Appeal
Court of Appeal File No. __to be assigned__
COURT OF APPEAL
IN THE MATTER OF THE UTILIITIES COMMISSION ACT, RSBC 1996, c.473
AND IN THE MATTER OF JANUARY 27, 2005, AND FEBRUARY 17, 2005, ORDERS OF THE BRITISH COLUMBIA UTILITIES COMMISSION
BETWEEN:
GSX CONCERNED CITIZENS COALITION,
BRITISH COLUMBIA SUSTAINABLE ENERGY ASSOCIATION,
SOCIETY PROMOTING ENVIRONMENTAL CONSERVATION
Appellants
AND:
BRITISH COLUMBIA UTILITIES COMMISSION
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
DUKE POINT POWER LIMITED PARTNERSHIP
Respondents
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
TAKE NOTICE that pursuant to s.101 of the Utilities Commission Act, RSBC 1996, c.473, GSX Concerned Citizens Coalition, British Columbia Sustainable Energy Association, and Society Promoting Environmental Conservation hereby apply for leave to appeal to the Court of Appeal for British Columbia from the order of R.H. Hobbs, Chair, and L.A. Boychuk, Commissioner, of the British Columbia Utilities Commission (“Commission”) pronounced the 27th day of January 27, 2005, (“L-10-05”), and the 17th day of February, 2005, (“E-1-05”) at Vancouver, British Columbia.
1. The appeal is from an order of a statutory body.
2. The appeal is not from an appeal under Rule 49 or 53 (6) of the Supreme Court Rules.
3. The Appeal involves Constitutional/Administrative law.
AND FURTHER TAKE NOTICE that the Court of Appeal will be moved at the hearing of this application for an order granting the Appellants leave to appeal Orders E-1-05 and L-10-05 so that the Appellants may proceed with an appeal to have the Orders set aside, or, in the alternative, varied.
The grounds of appeal are:
1. The Commission erred by not disqualifying the Commission Panel on the grounds of a reasonable apprehension of bias.
2. The Commission erred by denying procedural fairness and natural justice to the Appellants, particulars of which include:
a. unduly restricting the scope of the hearing,
b. proceeding with undue haste,
c. unreasonably limiting the Appellants’ access to confidential documents and other information; and
d. improperly conducting itself during an in camera session.
3. The Commission erred in law on grounds to be further particularized once the Commission’s reasons for decision regarding Order E-1-05 have been provided to counsel.
4. Such other grounds as counsel may advise.
The hearing of this proceeding occupied 11 days.
Dated at North Vancouver, British Columbia, this 27 day of February, 2005.
_____________________________
William J. Andrews
Solicitor for the Appellants
GSX Concerned Citizens Coalition,
British Columbia Sustainable Energy Association, and
Society Promoting Environmental Conservation
To the respondent: British Columbia Utilities Commission
6th Floor, 900 Howe Street
Vancouver, BC
V6Z 2N3
And to its solicitor: Gordon Fulton,
Boughton Peterson Yang Anderson
1055 Dunsmuir Street
Vancouver, BC
V7X 1S8
To the respondent: British Columbia Hydro And Power Authority
17th Floor - 333 Dunsmuir Street
Vancouver, BC
V6B 5R3
And to its solicitor: Christopher Sanderson, Q.C.
Lawson Lundell
1600 – 925 West Georgia Street
Vancouver, BC
V6C 3L2
To the respondent: Duke Point Power Limited Partnership
3040 – 400 -4th Avenue SW
Calgary, AB
T2P 0J4
And to its solicitor: Loyola Keough
Bennett Jones
4500 -855 -2nd Street SW
Calgary, AB
T2P 4K7
This Notice of Application for Leave to Appeal is given by: William J. Andrews, Barrister & Solicitor, whose address for service is: 1958 Parkside Lane, North Vancouver, British Columbia, V7G 1X5, Telephone: (604) 924-0921, Fax: (604) 924-0918.
To the respondents:
IF YOU INTEND TO PARTICIPATE in this proceeding, YOU MUST GIVE NOTICE of your intention by filing a form entitled “Notice of Appearance” (Form 2 of the Court of Appeal Rules) in a Court of Appeal registry and serve the notice of appearance on the appellant WITHIN 10 DAYS of receiving this Notice of Application for Leave to Appeal.
IF YOU FAIL TO FILE A NOTICE OF APPEARANCE
(a) you are deemed to take no position on the application, and
(b) the parties are not obliged to serve you with any further documents related to the application.
The filing registries for the British Columbia Court of Appeal are as follows:
Central Registry:
B.C. Court of Appeal
The Law Courts
800 Smithe Street
Vancouver BC V6Z 2E1
Other Registries:
B.C. Court of Appeal
The Law Courts
P.O. Box 9248 STN PROV GOVT
850 Burdett Ave
Victoria BC V8W 1B4
B.C. Court of Appeal
223 – 455 Columbia Street
Kamloops BC V2C 6K4
Inquiries should be addressed to (604) 660-2468
Fax filings: (604) 660-1951
Court of Appeal File No. __to be assigned__
COURT OF APPEAL
IN THE MATTER OF THE UTILIITIES COMMISSION ACT, RSBC 1996, c.473
AND IN THE MATTER OF JANUARY 27, 2005, AND FEBRUARY 17, 2005, ORDERS OF THE BRITISH COLUMBIA UTILITIES COMMISSION
BETWEEN:
GSX CONCERNED CITIZENS COALITION,
BRITISH COLUMBIA SUSTAINABLE ENERGY ASSOCIATION, SOCIETY PROMOTING ENVIRONMENTAL CONSERVATION
Appellants
AND:
BRITISH COLUMBIA UTILITIES COMMISSION
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
DUKE POINT POWER LIMITED PARTNERSHIP
Respondents
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
William J. Andrews, Barrister & Solicitor
1958 Parkside Lane
North Vancouver, BC, V7G 1X5
Phone: (604) 924-0921, Fax: (604) 924-0918
Email: wjandrews@shaw.ca
Victoria – On Monday, Bill Andrews, counsel for the GSX Concerned Citizens Coalition; the BC Sustainable Energy Association; and the Society Promoting Environmental Conservation, filed a notice for leave to appeal with the Court of Appeal for British Columbia.
GSXCCC, et al are challenging a 17 February decision of the BC Utilities Commission, which approved the electricity purchase agreement signed between BC Hydro and Duke Point Power Limited Partnership. Under the agreement, Duke Point Power undertakes to sell BC Hydro the electricity output from a 252 megawatt gas-fired power plant that Duke Point Power intends to build at Duke Point, near Nanaimo.
“We have strong grounds for overturning the decision that allows the electricity purchase agreement,” said Tom Hackney, President of the GSXCCC. “On top of that, the Duke Point Power deal is not in the best interests of the public. Gas power is not the smart way to go in the post-Kyoto era.”
GSXCCC, et al contend that the decision of the Utilities Commission should be set aside because, during the hearing on the Duke Point Power electricity purchase agreement, the Commission Panel -- Robert Hobbs and Lori Boychuk -- acted in a manner to create a reasonable apprehension of bias. Specifically, the Commission Panel held discussions with BC Hydro witnesses that gave rise to the impression that the Panel had made up it mind about the outcome of the review before all the parties had brought their evidence and argued their cases.
GSXCCC, et al also contend that the Commission erred by denying procedural fairness and natural justice to the appellants by: unduly restricting the scope of issues considered in the hearing; limiting the time parties were allowed to cross-examine BC Hydro witnesses; unreasonably limiting access to confidential information; and improperly conducting itself during an in camera session.
The Utilities Commission review of the electricity purchase agreement took place between November 2004 and January 2005, with a decision published on 17 February. The agreement follows from a Call for Tenders for electricity on Vancouver Island that BC Hydro carried out between 2003 and November 2004.
Under the EPA, Duke Point Power LP would charge BC Hydro $35 million per year over twenty-five years. To run the plant, BC Hydro would have to pay for and supply the gas fuel and pay for operating costs.
For further information:
Tom Hackney (250) 381-4463
Download the complete Notice of Application for Leave to Appeal
Download the GSXCCC news release