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Application for Review of an AUC Decision Dated May 3, 2018, Dismissing an Appeal Pursuant to Section 43 of the Municipal Government Act (Decision 23579-D01-2018)

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Review Application – Rate Structure – Municipal Public Utilities – Application Dismissed


In this decision, the AUC considered Ian Murdoch’s application for a review of the AUC’s decision dismissing Mr. Murdoch’s appeal regarding the method used by the City of Calgary to estimate Mr. Murdoch’s wastewater charges (the “Original Decision”).

The AUC denied the review application for the reasons summarized below.

The Original Decision

The Original Decision addressed an appeal filed pursuant to section 43 of the Municipal Government Act (“MGA”). In that decision, the original hearing panel dismissed the appeal based on the following findings:

(a)     Calgary’s Bylaw 14M2012, which regulates wastewater and includes “Schedule D – Monthly Wastewater Charge,” was properly passed on March 12, 2012;

(b)     the AUC’s jurisdiction under section 43(2) of the MGA did not extend to consider challenges to Calgary’s rate structure for wastewater utility services; and

(c)     the wastewater charges to Mr. Murdoch were not discriminatory because Calgary had demonstrated a rationale for determining the wastewater charges.

The review application addressed the second and third findings in the Appeal Decision. Mr. Murdoch did not dispute that the relevant bylaw was properly passed.

Alleged Grounds for Review

Mr. Murdoch sought a review of the following findings from the Original Decision:

  • that the AUC’s jurisdiction under section 43(2) of the MGA does not extend to ordering the creation of new rate classes; and

  • that the wastewater charges to Mr. Murdoch were not discriminatory because Calgary demonstrated a rationale and logic for determining wastewater charges and for applying one wastewater return factor to the residential metered class.

Review Process

The review application was filed pursuant to section 10 of the Alberta Utilities Commission Act (“AUCA”) and AUC Rule 016: Review of Commission Decisions (“Rule 016”).

The review process under Rule 016 has two stages. At the first stage, a review panel must decide whether there are grounds to review the decision subject to review. If the review panel decides there are grounds to review the decision, it moves to the second stage of the review process where the AUC holds a hearing or other proceeding to decide whether to confirm, vary, or rescind the decision.

Section 6(3) of Rule 016 describes the circumstances in which the AUC may grant a review, namely:

(a)     when the applicant has demonstrated an error of fact, law or jurisdiction, or

(b)     when previously unavailable facts material to the decision became available, or when circumstances material to the decision changed.

Under section 6(3) of Rule 016, the AUC may grant a review if the reviewing panel determines there is an error of fact, law or jurisdiction that is either apparent on the face of the decision or otherwise exists on a balance of probabilities that could lead the AUC to materially vary or rescind the decision.

The AUC reiterated guidance it provided in previous decisions that the review process is not intended to provide a second opportunity for parties to reargue the issues in a proceeding.

Findings

The AUC review panel found that Mr. Murdoch’s assertion regarding insufficient classes constituted a challenge to the rate structure itself as the addition of one or more new rate classes would be a change to the rate structure.

The AUC review panel found no error of interpretation by the hearing panel findings regarding the AUC’s jurisdiction under section 43 of the MGA.

The AUC review panel found the hearing panel’s determination that the residential rate class did not result in discriminatory treatment of Mr. Murdoch to be reasonable. The AUC review panel also confirmed the hearing panel’s determination that the AUC’s jurisdiction does not extend to ordering the creation of new rate classes.

Summary

The AUC review panel denied Mr. Murdoch’s review application for review of the Appeal Decision and dismissed the review application.

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