Section 99 of the Utilities Commission Act allows the BCUC to reconsider its own decisions and, if warranted, to vary or rescind them. Part 5 of the BCUC’s rules of practice and procedure describe how the reconsideration process works.

What can be reconsidered

The BCUC can reconsider any decision, an order, a rule or regulation of the BCUC (Rule 25.01). This includes procedural as well as final decisions, and decisions related to participant cost awards.

Who can apply

Reconsideration requests are typically filed by the applicant or an intervener in the proceeding that lead to the decision. However, another person may file a reconsideration request at the discretion of the BCUC, if it considers the applicant “is directly or sufficiently affected by the decision or how the person has experience, information, or expertise relevant to a matter arising from the decision.”

Reconsideration applications must generally be filed within 60 days of the issuance of the order or reasons for decision, whichever comes later (Rule 26.02), or 30 days for applications to reconsider decisions related to participant cost awards (Rule 26.03).

The BCUC may grant permission for reconsideration applications to be filed after their normal due date. Sometimes an applicant will seek permission within the 60-day period to file a “late” reconsideration application if they have some reason to delay, and want some assurance from the BCUC that their reconsideration application will still be accepted.

The BCUC may initiate a reconsideration proceeding “on its own motion” (Rule 25.02).

Process

The BCUC may “stay” or suspend the operation of a decision pending the outcome of a reconsideration proceeding (Rule 27). Generally an applicant should make the request to stay a decision as part of the reconsideration application; the BCUC does not stay decisions under reconsideration as a matter of course.

The BCUC may summarily dismiss a reconsideration application, in whole or in part, if it “fails to establish, on its face, any reasonable grounds for reconsideration of the decision” (Rule 28.01). This rule is in place, in part at least, to prevent the BCUC being tied up by procedural challenges during a proceeding.

If not summarily dismissed, the reconsideration application proceeds to a hearing (Rule 29.01).

Reconsideration proceedings are bound by the same rules of procedural fairness that apply to other BCUC proceedings. One specific addition is that all parties in the original proceeding being reconsidered will be notified (Rule 29.02).

The BCUC Chair appoints a panel to hear the reconsideration proceeding. The reconsideration panel is usually separate and distinct from the panel that made the original decision, even if it consists of the same commissioners, because the original panel ceases to exist once its final decision has been made (it is “functus officio”, in legal terms). An exception is for reconsiderations of procedural decisions, where the BCUC Chair might, but is not obligated to, assign the reconsideration request to the same panel that made the procedural decision.

Reconsideration criteria

The grounds for reconsidering a BCUC decision (Rule 26.05) are (see note 1):

(b) the BCUC has made an error of fact, law, or jurisdiction which has a material bearing on the decision;

(c) facts material to the decision that existed prior to the issuance of the decision were not placed in evidence in the original proceeding and could not have been discovered by reasonable diligence at the time of the original proceeding;

(d) new fact(s) have arisen since the issuance of the decision which have material bearing on the decision;

(e) a change in circumstances material to the decision has occurred since the issuance of the decision; or

(f) where there is otherwise just cause.

Applicants must be clear as to the criterion or criteria under which they are applying.

Second kicks at the can

As the BCUC noted in a 2021 decision, a reconsideration is not intended to be a “second ‘kick at the can’”.

The Supreme Court of Canada noted in a 2011 decision that:

“It is in the interests of the public and the parties that the finality of a decision can be relied on…

Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, re-litigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings” (emphasis added)

In other words, it is important for administrative tribunals such as the BCUC to make final decisions that people can rely on. A person who doesn’t agree with a BCUC decision does not get the opportunity to play “regulatory roulette” to see if a different panel of commissioners might rule more favorably.

Notes

Note 1: The Rules number these criteria (b) through (f), I can’t explain why.