Law Times

Law Times • November 9, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Public Utilities RATES Utilities Commission did not have obligation to conduct analysis using particular methodology ATCO Utilities applied to re- cover, in approved rates, certain pension costs related to an- nual cost of living adjustment. Alberta Utilities Commission denied approval for recovery of adjustment of 100 per cent of annual consumer price index, instead ruling that recovery of 50 per cent of annual con- sumer price index was reason- able. ATCO Utilities' appeals to Alberta Court of Appeal and Supreme Court dismissed. Elec- tric Utilities Act and Gas Utili- ties Act provide that regulated utility must have opportunity to recover costs and expenses so long as they are prudent. Com- mission tasked with determin- ing whether utility's costs are reasonable or prudent. Costs and expenses must be wise or sound to be considered reason- able or prudent. Public utilities bear burden of establishing that proposed tariffs are just and reasonable, which necessar- ily imposes on them burden of establishing that costs are pru- dent. Commission considers consumer interests by limiting utility's recovery to what it rea- sonably or prudently costs to ef- ficiently provide utility service. Consumers only pay for what is reasonably necessary. Com- mission does not have obliga- tion to conduct analysis using particular methodology; it has discretion to consider variety of analytical tools and evidence so long as ultimate rates it sets are just and reasonable to both consumers and utility. Com- mission's decision in applying its expertise to set rates and approve payment amounts is subject to standard of review of reasonableness. It was not unreasonable for Commission to decide, without applying no- hindsight analysis, that 50 per cent of consumer price index (up to maximum cost of living adjustment of three per cent) represented reasonable level for setting cost of living adjustment amount for purposes of deter- mining pension cost amounts. Use of word "prudent" does not impose on Commission a spe- cific no-hindsight methodol- ogy. Disallowed costs were fore- cast costs and it was therefore reasonable for Commission to direct ATCO Utilities to reduce pension costs incorporated into revenue requirements by re- stricting annual cost of living adjustment. ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission) (Sep. 25, 2015, S.C.C., McLach- lin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Gascon J., File No. 35624) Decision at 233 A.C.W.S. (3d) 491 was affirmed. 257 A.C.W.S. (3d) 728. FEDERAL COURT Administrative Law FREEDOM OF INFORMATION Dismissal of motion for pro- duction upheld on appeal Applicant, professor of sociol- ogy and criminology doing re- search on Correctional Service Canada Review Panel, submit- ted request under Access to In- formation Act for documents related to panel from respon- dent, Public Safety Canada. Among other things, he sought panel's work plan, budget, in- formation regarding appoint- ment of members and informa- tion regarding members' refusal to be interviewed by him. Pub- lic Safety Canada responded there were no relevant records. Applicant made complaint to Information Commissioner of Canada. Commissioner investi- gated and confirmed thorough search had been conducted and there were no relevant records. Commissioner suggested ap- plicant submit request for in- formation to Correctional Ser- vice Canada. Instead, applicant brought application for judicial review. Applicant then brought motion under R. 317 of Fed- eral Courts Rules for produc- tion of all documents related to creation, supervision and responsibility for work of panel. Motion denied as attempt to obtain same information re- quested in access to informa- tion request which respondent had already denied possessing. Applicant brought motion for reconsideration which was de- nied. Applicant brought appeal which was dismissed. Following cross-examination of respon- dent's representative, applicant brought motion for issuance of subpoena duces tecum to com- pel production of certain notes and respondent's entire access to information file. Motion denied on basis, among other things, issue had already been decided. Applicant brought mo- tion for leave to appeal. Motion denied. Decisions by prothono- taries not to be disturbed un- less they raised question vital to final issue in proceeding or order made clearly wrong in sense that exercise of discretion based upon wrong principle or misapprehension of facts. This court had already decided mat- ters of document production and discovery not vital to final outcome of case. Prothonotary had, however, erred in finding that documents for which pro- duction sought same as those sought earlier. While there was some overlap, they were not identical with result res judicata did not apply. Exercising discre- tion de novo, however, motion should still be denied on basis applicant really seeking con- tents of tribunal record which had already been produced or should be subject of motion under R. 317 and R. 318. Pro- thonotary had made no error in deciding applicant had failed to follow R. 91 with respect to di- rection to attend, that subpoena procedure under R. 41 was not available in context of judicial review or in adopting portion of respondent's representations, qualifying motion as fishing ex- pedition, as his own. Yeager v. Canada (Department of Public Safety and Emergency Preparedness) (Aug. 17, 2015, F.C., Denis Gascon J., File No. T-91-09) 257 A.C.W.S. (3d) 502. ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Human Rights Code did not apply to distribution schemes or settlements under Class Proceedings Act, 1992 Plaintiffs were representative plaintiffs in two actions in On- tario that were certified under Class Proceedings Act, 1992. There were parallel proceedings in British Columbia and Que- bec. Actions concerned allega- tions that defendants conspired to fix prices in dynamic random access memory devices. Claims were for breach of Competi- tion Act, civil conspiracy and tortious interference with eco- nomic interests. Actions had been ongoing for many years and progressive settlements had been reached. Actions had en- tered into administrative phase pursuant to distribution proto- col that was approved by courts in Ontario, British Columbia and Quebec. It was alleged that distribution protocol contra- vened Human Rights Code by discriminating against class members by providing adverse, differential treatment toward them based solely on personal characteristics of family status and marital status. Motion for directions was before court. Or- der accordingly. Code did not apply to distribution schemes or settlements under proceed- ings act. Distribution protocol had been held to be fair, reason- able and in best interests of class members. However, at time of fairness hearing distribution protocol was not considered through lens of Code. Code was quasi-constitutional legislation that should be given broad and purposive interpretation. Judg- ment proceeds were compensa- tion for civil wrong and injured class member did not receive service when they received money that was meant to re- store them to position they were in had civil wrong not occurred. Class members alleged that they had paid too much for products with DRAM because of alleged price-fixing of defendants. De- fendants did not admit liability but agreed to pay $80 million to class members. Distribution of those funds was not distribu- tion of service but was compen- sation for settling price-fixing complaint. Code did not ap- ply to distribution protocol in class action that was approved by courts of British Columbia, Ontario and Quebec. If Code had been applicable then distri- bution protocol did not contra- vene it. Administration of class action should continue. Eidoo v. Infineon Technologies AG (Sep. 2, 2015, Ont. 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