British Columbia Certificate of Public Convenience and Necessity (8-BC-c)
British Columbia Utilities Commission regulates the construction or operation of a public utility plant or system pursuant to the British Columbia – Utilities Commission Act, R.S.B.C. 1996, c. 473.
A “public utility” includes any person who owns or operates equipment or facilities for the “production, generation, storage, transmission, sale, delivery or provision of electricity . . . for the public or a corporation for compensation.” Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 1. BCUC may impose conditions on a developer through the CPCN. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 45 (8, 9).
Certificate of Public Convenience and Necessity Process
8-BC-c.1 – Is the Project Subject to an Exemption?
Several statutes exempt certain projects from the requirement to obtain a CPCN. For example, BC Hydro, the predominant transmission provider in British Columbia, creates long-term resource plans subject to the approval of BCUC. In approving a long-term resource plan, BCUC may exempt proposed projects in the plan from CPCN requirements. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 44.1 (9). See the Utilities Commission Act and Clean Energy Act for a full listing of exemptions.
8-BC-c.2 – Application for a Certificate of Public Convenience and Necessity
A developer should submit an Application for a CPCN (“Application”) to the BCUC Secretary in accordance with BCUC’s filing protocols, which include the following:
- Deliver the Application to the BCUC Secretary at least 30 days before its desired effective date. Provide an explanation if the application is filed under this minimum;
- If the Application includes a regulatory schedule, then the regulatory schedule must allow sufficient time for all stakeholders to review the Application;
- Ensure the Application is complete, self-explanatory, and follows any other filing guidelines that may be published;
- Figures contained in the body of the text should reference back to the relevant financial schedule, if any. Financial schedules should be cross‐referenced (both source and destination). Reconciliations should be provided where appropriate to enable greater transparency. Totals and subtotals should be used in the financial schedules to aid in understanding; and
- Applicants should discuss filing schedules periodically with BCUC staff. In addition, where specific filings will contain unusual complexity or innovation, prospective applicants should pre‐file some or all of the material, or request a pre‐filing conference with BCUC staff in order to plan for an efficient regulatory review.
A complete Application must also include, at minimum, information on the following: (1) Applicant; (2) Project Need, Justification, and Alternatives; (3) Consultation; (4) Project Description; (5) Project Cost Estimate; (6) Provincial Government Energy Objectives and Policy Considerations; and, (7) New Service Areas. BCUC Order G-20-15, Appendix A, pages 4 – 9 (2015). For more detailed information on filing requirements, see BCUC Order G-20-15, Appendix A, page 3 (2015).
8-BC-c.3 to 8-BC-c.4 – Is the Application Complete?
BCUC undertakes a preliminary review of the Application to ensure it meets the criteria of the CPCN guidelines. BCUC returns incomplete Applications to the applicant (developer). BCUC Order G-20-15, Appendix A, page 3 (2015).
8-BC-c.5 to 8-BC-c.6 Request Additional Information or Conduct a Hearing (Optional)
BCUC may request additional information or conduct a hearing. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 82. If BCUC determines it is in the public interest for the hearing to be public, then it must issue a notice and open the hearing to the public. In addition, BCUC decides whether the hearing is to be oral or written. In making the decision BCUC considers the nature of the interest involved, the number of parties involved, and the nature of the issue. Generally, oral hearings are better for situations that: (1) warrant evidence and testimony from witnesses and experts; (2) have significant effects on a broad range of interests; (3) involve complicated issues; and (4) have significant policy implications. A Participant’s Guide to the BCUC, Chapter 3, pp. 18 - 19 (2002). Hearings for a CPCN usually take less than three weeks. A Participant’s Guide to the BCUC, Chapter 3, pp. 18 - 19 (2002). For more details on hearing procedures see: A Participant’s Guide to the BCUC, Chapter 4, pp. 29 – 33 (2002).
8-BC-c.7 to 8-BC-c.8 – Review Application Materials for Approval
If BCUC determines that public convenience or necessity warrant a project, then it may grant a CPCN. In determining whether a project is in the public interest, BCUC considers the:
- British Columbian energy objectives;
- Utility’s resource plan, if any; and
- Extent to which the energy supply contract is consistent with the applicable requirements under sections 6 (electricity self-sufficiency goals) and 19 (renewable energy targets) of the Clean Energy Act.
8-BC-c.9 – Certificate of Public Convenience and Necessity
An order granting a CPCN may include terms and conditions that BCUC believes the public convenience or necessity require. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 45(9).
8-BC-c.10 – Appeal Decision (Optional)
BCUC, on application or on its own motion may reconsider any of its actions and confirm, vary, or rescind them. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 99. A developer may submit an application for reconsideration to appeal from a BCUC decision. BCUC will perform an initial screening of the application and ask:
- Should there be a reconsideration by BCUC?
- If there is to be a reconsideration, should BCUC hear new evidence and should new parties be given the opportunity to present evidence?
- If there is to be a reconsideration, should it focus on the items from the application for reconsideration, a subset of these items or additional items?
Then, BCUC issues an order that invites registered intervenors and interested parties to comment on the application for reconsideration. Thereafter, BCUC determines if there is a reasonable basis for reconsideration by asking whether:
- BCUC has made an error in fact or law;
- There has been a fundamental change in circumstances or facts since the Decision;
- A basic principle had not been raised in the original proceedings;
- A new principle has arisen as a result of the Decision;
- There is just cause warranting reconsideration, as determined in the sole discretion of BCUC.
Where an error is alleged to have been made, in order to advance to the second phase of the reconsideration process, the application must meet the following criteria:
- The claim of error is substantiated on a prima facie basis; and
- The error has significant material implications.
If necessary, the reconsideration proceeds to the second phase where BCUC hears full arguments on the merits of the application. The applicant (developer) and the intervenors may appear before BCUC to argue why the original decision should or should not be varied or overturned. Finally, after considering these arguments, BCUC renders its decision on the reconsideration application. A Participant’s Guide to the BCUC, Chapter 4, pp. 36 -37 (2002).
A court will generally only hear an appeal if other remedies have been exhausted, such as an application for reconsideration with BCUC. A Participant’s Guide to the BCUC, Chapter 4, p. 35 (2002). A developer may petition for judicial review by the Supreme Court of British Columbia within 60 days of a decision by BCUC. Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 57. However, the Appeal Court of British Columbia generally handles appeals from BCUC decisions.
A developer may petition for judicial review by the Appeal Court of British Columbia within 30 days of a BCUC decision for any matter besides contraventions or administrative penalties imposed by BCUC. A Participant’s Guide to the BCUC, Chapter 4, p. 35 (2002) Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 101. If a developer appeals to the Appeal Court, then it must explain its grounds for appeal in notifications to BCUC, the Attorney General, and any party adverse in interest. Similarly, if the Court grants leave, then a developer must notify BCUC, the Attorney General, and any party adverse in interest within 15 days. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 101.
The Court has discretion to review the petition or not. If the Court finds procedural unfairness, abuses of authority, or unreasonable findings, then it may invalidate the decision and/or remand the matter to BCUC with instructions for a rehearing. Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 5, 7]. BCUC may or may not reach a different decision upon rehearing the matter.
The Court has limited ability to review administrative decisions. It cannot set aside a finding of fact “unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.” Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59. The Court cannot set aside discretionary decisions unless they are “patently unreasonable.” For example, it could not overturn a decision because it did not prefer the outcome, but it could overrule a decision “exercised arbitrarily or in bad faith.” Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59.
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