Wong v. B.C. Hydro Date:, 2013 BCPC 244

Citation: Wong v. B.C. Hydro Date: 20130829 2013 BCPC 0244 File No: 3983 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DAVID H. WONG CLAIMANT AND: BRITISH COLUMBIA HYDRO AND POWER AUTHORITY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on their own behalf: David H. Wong Counsel for the Defendant: A. Alani Place of Hearing: Duncan , B.C. Date of Hearing: August 29, 2013 Date of Judgment: August 29, 2013

[ 1 ] THE COURT (Orally): David H. Wong has commenced an action against BC Hydro and Power Authority. In Mr. Wong's Notice of Claim, he claims as follows: (

a) January 2008 overcharge $185.71; (

b) March 2008 overcharge $125.74, (

c) less January 2011 back-billing, minus $106.13, total $205.32. In addition to that, Mr. Wong makes a claim for his filing and service fees. [ 2 ] In submissions I have heard, Mr. Wong indicates that in fact, the credit amount shown as item (c), being the January 2011 back-billing, was an amount for which he did not receive the appropriate credit. Accordingly, that amount should not be deducted from items (

a) and (

b) above; hence the amount at issue, according to the agreed calculations between the parties, is $311.45. [ 3 ] This matter has been before this court on at least two separate occasions. Both were settlement conferences. The settlement conferences arose as a result of the Reply filed by BC Hydro and Power Authority, as defendant.

The defence raised in the Reply may be summarized in the following fashion. [ 4 ] First of all, pursuant to s. 105 of the Utilities Commission Act , that the Utilities Commission Act "has exclusive jurisdiction in all cases and for all matters in which jurisdiction is conferred on it by this or any other Act." Subsection (2) provides: Unless otherwise provided in this Act, an order, decision or proceeding of the commission must not be questioned, reviewed or restrained by or on an application for judicial review or other process or proceeding in any court.

The reference to "Act" in subsection 2 is to the British Columbia Utilities Commission Act . [ 5 ] The Reply goes on to state that the allegations raised in the Notice of Claim have been considered by the British Columbia Utilities Commission pursuant to its jurisdiction to "inquire into, hear and determine" complaints against BC Hydro under s. 72 of the Utilities Commission Act . [ 6 ] The argument raised by BC Hydro is that the matters have been dealt with by the British Columbia Utilities Commission by way of their letters dated October 26 and November 8 of 2010 and, in addition to that, subsequently by way of their letter dated December 19, 2012. [ 7 ] Accordingly, the argument submitted by BC Hydro is that this court lacks the jurisdiction to deal with the matters subject of the claim, and also, there is a further argument that the matter is res judicata , having been properly considered by and dealt with by the Utilities Commission. [ 8 ] The claimant, Mr.

Wong, had a number of significant complaints about billing and the operation of his electrical meter which was, I think, commonly agreed to be the property of BC Hydro. Those complaints were raised with the Utilities Commission following what Mr. Wong considered to be an unsatisfactory response by BC Hydro. The materials before me indicate complaints going back to the Utilities Commission about BC Hydro's handling of the billing issues as early as the 5th of July 2010. In his letters to the BC Utilities Commission, Mr.

Wong sets out in significant detail and in concise terms his concerns about a malfunctioning meter and about the procedures utilized by BC Hydro in reviewing his billings and also in dealing with estimated billings when the meter eventually malfunctioned to the extent that it was not recording any hydro usage. [ 9 ] The materials before me indicate that as part of their procedure in dealing with the matter, the BC Utilities Commission engaged in a correspondence exchange with BC Hydro and Power Authority. There are a number of letters exchanged between BC Hydro and Power Authority and the Utilities Commission.

There are letters also exchanged by the Utilities Commission with Mr. Wong. [ 10 ] Many of the issues were, in one fashion or another, resolved. It is fair to say that the correspondence exchanged by Mr. Wong with the Utilities Commission and BC Hydro can safely lead a reader to conclude that the manner in which BC Hydro dealt with this matter was below what they would consider to be appropriate standards. There have been what I will describe as conditional apologies offered with respect to oversight by BC Hydro in their dealings with this matter.

What appears to have been the remaining and important issue which came back before the Utilities Commission was prompted by a letter sent by Mr. Wong raising additional concerns. That letter, as I understand it, was prompted by matters that came before this court in a settlement conference before the Honourable Judge Wood. [ 11 ] As a result of matters proceeding before this court at that time, I am given to understand that the Honourable Judge Wood suggested that the matter be again referred back to the British Columbia Utilities Commission in order to deal with the remaining issues. Accordingly, Mr.

Wong wrote to the Utilities Commission on the 14th of August 2012. In that letter, he provided again lengthy details of the timeline and the various complaints that he had against BC Hydro and their handling of issues relating both to his defective meter as well as their billing practices. [ 12 ] The Utilities Commission again engaged in correspondence with BC Hydro and with Mr. Wong, resulting in a letter dated December 19, 2012.

It is BC Hydro's position that the letter of December 19, 2012, amounts to a decision by the British Columbia Utilities Commission with respect to the issues which are the subject matter of the claim before me, being the claim for the overcharge for hydro in January 2008 and March 2008. [ 13 ] In their letter of response to Mr. Wong, the British Columbia Utilities Commission says, in part, as follows: Commission staff reviewed the meter reading information and recognize that the January 2008 and March 2008 meter readings were higher than in previous years; however, under

section 63 of the Utilities Commission Act , BC Hydro is required to charge its customers for the consumption that has registered to the meter.

BC Hydro may request the Commission's consent to waive charges for registered energy consumption if there is sufficient reason to do so. On August 29, 2012, Commission staff sent a request to BC Hydro to review your account and determine if it would be appropriate to revise the initial billings and apply an estimate of consumption to the period between the November 2007 and March 2008 meter readings. BC Hydro responded to this matter in its September 26, 2012, letter, stating it did not believe that revising the billings was an appropriate resolution.

In its responses, BC Hydro provided the following information regarding the accuracy of the meter between November 2007 and March 2008: • The consumption recorded between September 2007 and January 2008 was similar to or lower than consumption in previous years. • The consumption recorded between November 2007 and March 2008 was similar to consumption in previous years. • The November 2007 meter reading was considerably lower than in previous years, indicating the meter may have been misread. Unfortunately, errors can occur in reading meters and reporting the information as the process is manual.

However, meters continue to register consumption and any error is corrected with the next actual reading. As a result, the January 2008 meter reading would have been higher than expected to incorporate the additional consumption from the previous billing period. • When meters fail they typically slow down or stop completely. Commission staff are of the view that BC Hydro's statements regarding the November, January and March meter readings are reasonable.

While we understand that the meter began to slow down following the July 2008 meter reading, eventually registering zero consumption for a period of time, the billing issues associated with that time period were previously addressed in the Commission's responses dated November 8, 2010 and November 25, 2010.

At that time, Commission staff expressed satisfaction that BC Hydro's billing calculation for the back-billing period was fair and reasonable and stated that further requests for additional compensation would be better suited for litigation, as the Commission is unable to assist customers seeking compensation for damages from a utility. [ 14 ] The letter goes on to deal with concerns that were raised by Mr. Wong with respect to customer service complaints and the method by which BC Hydro had responded to those complaints.

The letter makes reference to an apology offered by BC Hydro for the breakdown in its internal complaints and handling process. The letter goes on to make the following statement: Although the Commission is not directly involved in BC Hydro's internal business practices, such as its internal complaints process and communication strategies, we do regularly pass along feedback and suggestions from customers to the appropriate departments within the company. In light of your feedback, Commission staff will continue to work with BC Hydro to help the company improve its processes and its online services for customers.

After reviewing the information, Commission staff are satisfied that BC Hydro reasonably addressed the concerns you outlined and followed its Electric Tariff and the Utilities Commission Act . [ 15 ] I will now deal with the applications that are before me are, firstly, that made by Mr. Wong, the claimant. What Mr. Wong seeks is that this matter be dealt with by way of an order that the matter be set down for a settlement conference or a date be set for the trial of the issues. [ 16 ] The application brought by BC Hydro in essence opposes the application being brought by Mr. Wong.

Specifically, it is BC Hydro's application that pursuant to Rules 16(6)(

o) and 7(14)(ii) and (iii), that the claimant's claim should be dismissed on the basis that it discloses no triable issue and/or is an abuse of the court's process. [ 17 ] It is the further contention in the application brought by BC Hydro that the court lacks jurisdiction and, further, that the matter

is res judicata and, finally, that there is no triable issue within the court's jurisdiction. [ 18 ] In support of those arguments, reference is made to the Utilities Commission Act . First to s. 72 which provides as follows: Jurisdiction of commission to deal with applications 72

(1) The commission has jurisdiction to inquire into, hear and determine an application by or on behalf of any party interested, complaining that a person constructing, maintaining, operating or controlling a public utility service or charged with a duty or power relating to that service, has done, is doing or has failed to do anything required by this Act or another general or special Act, or by a regulation, order, bylaw or direction made under any of them.

(2) The commission has jurisdiction to inquire into, hear and determine an application by or on behalf of any party interested, requesting the commission to (

a) give a direction or approval which by law it may give, or (

b) approve, prohibit or require anything to which by any general or special Act, the commission's jurisdiction extends.

Section 79 provides: Findings of fact conclusive 79 The determination of the commission on a question of fact in its jurisdiction, or whether a person is or is not a party interested within the meaning of this Act, is binding and conclusive on all persons and all courts.

Section 83 provides: Action on complaints 83 If a complaint is made to the commission, the commission has powers to determine whether a hearing or inquiry is to be had, and generally whether any action on its

part is or is not to be taken.

Section 101 provides: Appeal to Court of Appeal 101

(1) An appeal lies from a decision or order of the commission to the Court of Appeal with leave of a justice of that court.

(2) The party appealing must give notice of the application for leave to appeal, stating the grounds of appeal, to the commission, to the Attorney General and to any party adverse in interest, at least 2 clear days before the hearing of the application.

(3) If leave is granted, within 15 days from the granting, the appellant must give notice of appeal to the commission, to the Attorney General, and to any party adverse in interest.

(4) The commission and the Attorney General may be heard by counsel on the appeal.

(5) On the determination of the questions involved in the appeal, the Court of Appeal must certify its opinion to the commission, and an order of the commission must conform to that opinion.

Section 105 provides: Jurisdiction of commission exclusive

(1) The commission has exclusive jurisdiction in all cases and for all matters in which jurisdiction is conferred on it by this or any other Act.

(2) Unless otherwise provided in this Act, an order, decision or proceeding of the commission must not be questioned, reviewed or restrained by or on an application for judicial review or other process or proceeding in any court. [ 19 ] The argument raised by BC Hydro is that the complaint has been dealt with in an appropriate fashion by the Utilities Commission, that the decision of the Utilities Commission is as outlined in the letter of December 19, 2012.

The finding can be summarized as the satisfaction of the Commission that the November, January, and March 2008 meter readings were reasonable. [ 20 ] So far as I am aware, and I think it is common ground, that no appeal has been made by Mr. Wong with respect to that particular decision. What Mr. Wong argues is that the claim that he has made before this court arises out of the failure of BC Hydro to provide a proper billing for the January and March 2008 bills. In that regard, he says that BC Hydro failed to follow their own internal process.

Once they became aware that the meter on his property had failed to properly record consumption and, in fact, failed to apparently record any consumption for a period of time, then that should have made the meter the subject matter of testing; from that testing would have been produced a certificate which could be utilized by him in any process that he may have either against BC Hydro for overbilling or for his application before the BC Utilities Commission. [ 21 ] In essence, I am being invited by Mr.

Wong to accept that there was an obligation, that is, a legal obligation, on the part of BC Hydro to provide him with that certificate. [ 22 ] Unfortunately, Mr. Wong was unable to point me to any particular provision either in any applicable legislation or any tariff requirement obliging BC Hydro to follow that particular policy. In submissions, I heard from Mr. Alani, counsel for BC Hydro, that he was not aware of any legal obligation for that particular certificate to be provided by BC Hydro. Mr.

Alani was candid when he indicated that he assumed that it was a policy, but he was unable to confirm that there was anything in the nature of a legal obligation for such a certificate to be provided. [ 23 ] In the further submissions I heard from BC Hydro, there is an indication that they disagree with Mr.

Wong's contention that there has been an indication by the BC Utilities Commission that they have declined jurisdiction or have declined to make a ruling that relates to the absence of a certificate, thereby leaving that to fall within what was described in the Commission's letter as a matter relating to "requests for additional compensation", that the Commission opined may be better suited for litigation. [ 24 ] The important issue, first of all, is for me to determine whether or not this court has jurisdiction in order to hear this matter. In that regard, I have been referred to two specific authorities.

The first authority referred to me is the decision of Mr. Justice Macaulay in Strata Plan LMS 1816 v. British Columbia Hydro and Power Authority , [2002] B.C.J. No. 673, 2002 BCSC 485 . That particular authority is presented to me for the proposition that the complaint under s. 72 of the Utilities Commission Act brought by Mr. Wong brings it within the Commission's jurisdiction in order to deal with that complaint and that jurisdiction is a matter of exclusive jurisdiction and therefore ousts the court's jurisdiction. [ 25 ] The second authority that I have been referred to is a decision of Judge M.P.

Church of the Provincial Court of British Columbia in the decision of Anthony Ayoub, claimant, and BC Hydro and Power Authority, defendant, Court File 14702, Quesnel Registry, rendered June 18, 2012. In that decision, the learned judge concluded at paragraph 7 of reasons for judgment as follows: [7] Unfortunately, by virtue of the provisions of the Utilities Commission Act , I do not find that the Provincial Small Claims Court has jurisdiction to hear this claim by Mr. Ayoub. Accordingly, the application of the defendant must succeed. [8] I am therefore, dismissing the application of Mr.

Ayoub on the basis that it discloses no triable issue and this court does not have jurisdiction. [ 26 ] The second issue that I may be required to deal with is the question of res judicata ; however, I will deal first of all with the jurisdiction issue. [ 27 ] As I read the claim, it has been framed not in damages but, rather, as a claim in debt. Claims in debt and in damages are pursuant to s. 3 of the Small Claims Act within the jurisdiction of this court. However, I am of the view that this matter does fall within the exclusive jurisdiction of the British Columbia Utilities Commission.

I am further of the view that the Utilities Commission has, in fact, assumed jurisdiction to deal with the matter as set out in their letter to Mr. Wong dated December 19, 2012. I am satisfied that the Utilities Commission did take into account all the materials that were before them at that time and rendered a decision with respect to the subject matter which is now still before this court. [ 28 ] Having regard to all of the circumstances and the authorities cited above, I am of the view that this court does not have jurisdiction to hear the matters that are contained within the Notice of Claim filed by Mr.

Wong to initiate this action. Accordingly, I will dismiss his claim and thereby accede to the application of the BC Hydro to dismiss that claim on the basis of lack of court jurisdiction in this particular matter. [ 29 ] That concludes my reasons for judgment. (REASONS CONCLUDED)