The BCUC “has the power to control its own processes”, pursuant to section 11 of the Administrative Tribunals Act. This means the BCUC can decide such matters as who must be notified about a proceeding, which interveners (if any) to allow to participate, whether (and which) evidence may be introduced, and whether oral or written examination of evidence is allowed.

However, this power over its process is not unbounded. The BCUC, as an administrative tribunal, must conduct itself and make its decisions according to principles of procedural fairness (also sometimes referred to as natural justice). The BCUC acknowledges this in rule 2 of its rules of practice and procedure, where it states that its decisions must be “consistent in all cases with the requirements of procedural fairness.”

Procedural fairness is concerned with how administrative bodies such as the BCUC make their decisions, not with the fairness of the decisions themselves. A decision can be unfair in any number of ways, but still have been made in a manner that was procedurally fair.

There appears to be no formal definition of what is meant by procedural fairness. However, the following appear to be generally accepted:

Prior notice

Prior notice is an important aspect of proceedings at the BCUC. Most obviously, this principle applies at the beginning of a BCUC proceeding, but in fact is important throughout.

When a proceeding starts, the BCUC must ensure that parties who may be affected are notified, for example customers whose rates might increase as a result of a utility’s application. Generally the BCUC directs the utility to do this, but it may also publicize the matter itself, for example on its web site.

Who should be notified? This depends on the decision to be made. Utility rates applications affect customers, so notifying them is clearly important. But there are organizations who represent certain classes of customer, such a low-income or industrial customers, who could be notified as well. Applications for new utility facilities, such as an upgraded gas pipeline, might require notifying municipalities, indigenous groups, and local residents whether or not they are utility customers.

There are no rules as to the specific manner of notification, but it must generally be reasonable and proportionate in the circumstances. The BCUC must strike an appropriate balance between attempting to notify as many affected people as possible, without taking too long (which might unfairly harm another party, such as an applicant) or incurring excessive cost (which usually falls on ratepayers).

The BCUC has guidelines to use when deciding what notice is reasonable, but it is the responsibility of each BCUC panel to decide what is appropriate for its proceeding. For example, a utility might satisfactorily notify a municipality or an indigenous group by writing to them individually, whereas that might be excessive when contacting millions of residential customers, who could be reached with newspaper advertising and social media.

During a proceeding the BCUC must continue to provide adequate notification to potentially affected parties. If the BCUC changes its process, for example it may decide to add an oral hearing to gather more evidence, it must notify all those involved in the proceeding so that they may participate.

If the scope of a proceeding changes as it progresses, adequate additional notice may be required. Clearly, if an application was made to increase a utility’s residential rates, the BCUC would be wrong to increase commercial rates in its final decision without having provided appropriate notice. Some changes of scope are considerably more subtle, however, and the BCUC could inadvertently put its decisions at risk of a legal challenge by not paying sufficient attention to notice during the proceeding.

A party who feels that it was not given adequate notice of a proceeding or other matter may complain to the BCUC, usually as a request for reconsideration. This applies even before the BCUC has reached a final decision, as procedural challenges should be raised as soon as possible in a proceeding.

Disclosure of evidence

The BCUC must ensure that the evidence used to make its decisions is disclosed to all the parties in a proceeding. This includes the application, in any, for example from a utility to change its rates. It also includes the answers to any questions posed to an applicant or to interveners during the proceeding.

Without this right, parties would not know the full case that they have to respond to when making their submissions, and would not have the opportunity to “test” the evidence, asking questions for clarification or to undercover inconsistencies or misrepresentations.

The BCUC has rules on handling confidential evidence in its rules of practice and procedure. The onus is on the submitter of evidence to justify why it should remain confidential, and the BCUC decides whether or not to agree. Other parties in the proceeding may still have access to confidential evidence on terms set by the BCUC, for example by signing a non-disclosure agreement.

Right to be heard

The BCUC must ensure that parties affected by their decisions have the right to express their views before a decision is made. This presupposes that people affected by the decision have been notified; the right to be heard is meaningless if you don’t know that your rights are about to be affected.

BCUC proceedings are often initiated by a public utility, for example requesting a change in rates or the addition of new facilities. The utility is clearly affected by the BCUC’s decision, for example if the request were to be partially or entirely denied, so the BCUC must ensure the utility has the right to argue its case, and to provide the necessary evidence to support it.

Many others are affected by BCUC decisions in addition to utilities. The BCUC offers several ways for other parties to express their views – they could submit a letter of comment, apply to be an intervener, or join with an existing party who is participating. In different ways, these other parties are able to make their own case and to provide the supporting evidence. Part 2 of the BCUC’s rules of practice and procedure has rules governing who may participate in its proceedings and how they must behave.

Most BCUC interveners are organizations who have a direct interest in the outcome of a proceeding, such as a utility, municipality, or a public interest group representing a category of ratepayers, such as low-income individuals.

The right to be heard includes the right to submit evidence, to test the evidence of others, to make one’s argument and to reply to the arguments of others.

If someone considers that their rights are at risk and their views are not being adequately represented in a BCUC proceeding, they may complain to the BCUC or to a court. If the BCUC has already made a decision and did not adequately consider the views of someone whose rights were affected, the decision may be challenged.

Right of reply

The BCUC must ensure that parties affected by their decisions have the right to reply to the positions taken by others before a decision is made. This could be considered an aspect of the right to be heard.

The right of reply applies whenever the BCUC receives submissions on a matter. This could be a procedural matter during a proceeding, or a final decision. Whenever parties have the opportunity to make a submission, the other parties must be given the opportunity to reply to that submission.

In proceedings to hear an application from a utility, it is common that the utility makes its submission first. This is especially true of final argument, but may also apply to other matters during the proceeding. Interveners then have the opportunity to make their submissions, which consist of their reply to the utility’s submission (right to reply), and any matters they wish to raise (right to be heard). The utility then has the right to reply to the matters raised by the interveners.

An alternative arrangement is that all parties in a proceeding make the submissions simultaneously (right to be heard), then make their reply to all the others’ submissions simultaneously (right of reply). This arrangement is more common in proceedings where there is no applicant, such as an inquiry. However, it is also sometimes used in proceedings when deciding matters initiated by the BCUC, as it reduces the number of submissions from three to two and can shorten the process.

It is considered a procedural error for a party to introduce new argument in their reply, because this does not give the other parties an opportunity to reply to the new argument (i.e. they are denied their right of reply). The remedy in these cases is for the BCUC to disregard the new argument, or if it thinks the argument is useful to its decision-making, the BCUC would need to add more process to allow other parties to reply to the new argument.

Unbiased decision

People whose rights are affected by the BCUC quite reasonably have the expectation that the decision makers involved are unbiased.

The test that the courts in Canada have set out is generally summarized to be whether there is a “reasonable apprehension of bias.” Thus, to demonstrate that a decision is invalid because of bias, it is not necessary that the decision maker was actually biased, merely that a reasonable person would conclude that they were.

There might be a “reasonable apprehension of bias” if a decision maker or their family stood to gain financially from a decision, for example, or if a decision maker had made previous comments that demonstrated they had a fixed opinion on a subject and could not be relied upon to have an open mind in a proceeding.

The right to an unbiased decision maker applies to the decision-maker’s institution as well as to the decision maker themselves. If the institution does not offer sufficient security of tenure for its decision makers or does not operate independently, this could constitute a reasonable apprehension of bias.

Section 11 of the Utilities Commission Act states that BCUC commissioners may not have a financial interest in a public utility regulated by the BCUC, but that there is no conflict of interest if commissioners are simply receiving “personal or domestic” service from a utility which they regulate. However, there is no other guidance in the act on what might constitute a “reasonable apprehension of bias” on the part of a commissioner.

Reasons

Parties, especially those whose rights have been curtailed, expect to understand why an administrative body made the decision it did. Reasons allow a party to understand the basis for the decision, and to challenge the decision if they disagree with that basis.

The BCUC must, pursuant to section 124 of the Utilities Commission Act, provide written reasons for any decision that is opposed, or where an applicant requests reasons for an unopposed decision. Understanding why an unopposed decision was approved gives parties guidance as to which future applications might also be approved for the same reasons.

The BCUC publishes many of its decisions on its web site.

Recourse

What happens if procedural fairness is not observed? If a decision by the BCUC is determined to have been made in a manner that was procedurally unfair, the decision can be overturned by the court of appeal, and the decision sent back to be made again, presumably in a manner that addresses the initial procedural problem.

Prior to a court of appeal challenge, the BCUC has its own reconsideration process, whereby someone can request that the BCUC review part or all of a decision it has made. The process for this is set out in section 5 of the BCUC’s rules of practice and procedure, and requires the applicant to justify their reason for seeking a reconsideration. If a party fails in its application for a reconsideration, they can then apply to the court of appeal.

It’s likely that some parties use reconsideration applications to the BCUC, whether on procedural or other grounds, to have another “spin of the regulatory roulette wheel” when they disagree with a decision. The BCUC’s reconsideration rules try to avoid this by limiting the grounds for reconsideration, and allow for the summary dismissal of reconsideration applications that are of no merit.