Timothy W. Buckle Applicant And: Board of Commissioners of Public Utilities Respondent And: 61839 Newfoundland v. Labrador Limited, 2018 NLSC 70

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Buckle v. Public Utilities , 2018 NLSC 70 Date : April 3, 2018 Docket : 201701G6714 Between: Timothy W. Buckle Applicant And: Board of Commissioners of Public Utilities Respondent And: 61839 Newfoundland and Labrador Limited Intervenor Before: Justice Wayne G. Dymond Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: December 19, 2017 Appearances: Timothy W. Buckle Appearing on his own behalf John Taylor-Hood Appearing on behalf of the Respondent Keir O'Flaherty Appearing on behalf of the Intervenor Authorities Cited:

CASES CONSIDERED: Newfoundland (Board of Commissioners of Public Utilities), Re (1998), (NL CA), 164Nfld. & P.E.I.R. 60, 507 A.P.R. 60 (Nfld. C.A.) STATUTES CONSIDERED: Public Utilities Act, R.S.N.L. 1990, c. P-47; Municipalities Act, S.N.L. 1999, c. M-24; Board ofCommissioners of Public Utilities Regulations, 1996, N.L.R. 39/96; Water Resources Act, S.N.L. 2002 c. W-4.01 REASONS FOR JUDGMENT Dymond, J.: INTRODUCTION [1] Timothy W.

Buckle (“Buckle”), the Applicant, is a self-represented litigant who owns Lot 5, Humber Valley Resort which isin an unincorporated area in the Province of Newfoundland and Labrador. [2] The Respondent, the Newfoundland and Labrador Board of Commissioners of Public Utilities (the “Board”) is anindependent, quasi-judicial regulatory body appointed by the Lieutenant Governor in Council, and operates primarily under the authorityof the Public Utilities Act, R.S.N.L. 1990, c.

P-47 (herein as amended, hereinafter referred to as the “Board of Public Utilities”. [3] 61839 Newfoundland and Labrador Limited is a corporation registered under the laws of the Province of Newfoundland andLabrador which amongst other things provides water service to the residents of Humber Valley Resort hereinafter referred to as “61839Inc.”. [4] 61839 Inc. in an earlier application to this Court was given intervenor status in this Court to intervene in the proceedingsinvolving Buckle and the Public Utilities Board. [5] In the earlier hearing this Court ruled that 61839 Inc. had an interest in the application before the Court between theApplicant Buckle and the Public Utilities Board, because any outcome could affect other property owners presently owning property atHumber Valley Resort. the present application [6] The Applicant Buckle without notice to 61839 Inc. sent a letter dated April 5, 2016 requesting the Public Utilities Board toset fees for the provision of water services by 61839 Inc. to the owners of property at Humber Valley Resorts. [7] Upon review the Public Utilities Board corresponded by written letter dated October 13, 2016 to the Applicant Buckleadvising that it had determined that the services provided by 61839 Inc. were outside the Public Utilities Board’s jurisdiction. [8] One year later on October 13, 2017 Buckle, the Applicant, filed an originating application naming the Board ofCommissioners of Public Utilities as respondent. [9] In the Application, Buckle takes the position that the written correspondence to him from the Board was in clearcontravention of the plain language, spirit and intent of the Public Utilities Act and fails to provide the necessary protection to theApplicant and the public from a private corporation 61839 Newfoundland and Labrador Ltd., which possesses a monopoly waterdistribution system. [10] The Applicant Buckle requests this Court to direct the Board to adhere to the Public Utilities Act and direct that 61839 Inc.submit for the approval of the Board a

schedule of rates, tolls and charges and obtain the approval of the Board and require that theschedule of rates, tolls and charges as approved be filed with the Board and shall be the only lawful rates, tolls and charges of the publicutility, until altered, reduced or modified as provided by the Public Utilities Act. [11] Because 61839 Newfoundland and Labrador Ltd. was not made a party to this Application, once it did become aware of theBuckle Application the company filed for intervenor status. At the intervenor status hearing on November 1, 2017 the Board raised theissue of jurisdiction.

The Board questioned the right of Buckle to take an application to the Supreme Court, Trial Division by way oforiginating application. [12] The Application’s Judge, Justice Paquette made the following order dated November 1, 2017 after hearing the Intervenor,61839 Inc. Mr. Buckle and the Board: (

i) That it has the right to file evidence by affidavit within the time limits set by the court. (ii) That it has the right to file a written brief within the time limits set by the court. (iii) That it has the right to attend and appear at the hearing of the Originating Application on December 19, 2017 at SupremeCourt of Newfoundland, Trial Division and make oral submissions. [13] A further order setting filing dates and a hearing date for each of the parties was also filed on November 1, 2017.

[ 14 ] The record of the Court made it clear that the December 19 hearing date would deal with the preliminary issue of venue or jurisdiction of the Court to determine whether the Supreme Court, Trial Division had jurisdiction to grant the application as filed by the Applicant Buckle. [ 15 ] All parties filed briefs and made argument at the December 19 hearing. It was agreed by all counsel and Mr.

Buckle, the Applicant, that the issue on the merits of the Application would be heard on a later date once it was determined whether the Supreme Court was the appropriate venue for the relief requested. background of the Originating application [ 16 ] The Originating Application of Buckle sets out at paragraphs 1 – 10 the context of the request by Buckle to this Court, which facts are not disputed by the Intervenor and are helpful in relation to how and why the Applicant Buckle ended up taking the present application. [ 17 ] The Application of Timothy W. Buckle the Applicant herein says: 1.

The Humber Valley Resort (HVRC) was a body corporate, duly organized and existed pursuant to the Laws of the Province of Newfoundland and Labrador. 2. Humber Valley Resort Corporation (HRVC) was the true, absolute and beneficial owner of property situate on the northwesterly side of the Lower Humber River and Deer Lake, commonly known as the Humber Valley Resort, in the Province of Newfoundland and Labrador. 3. The area was subsequently subdivided into individual lots and construction of vacation chalets commenced on the individual lots.

All subdivided properties sold in the area was on the condition that HVRC was the exclusive agent for each individual property related to property sales, leases, and rentals. 4. On the 2 nd day of April, 2003, HVRC was granted an amendment to a Water Use Licence (formerly Water Use Authorization), which allowed HVRC to withdraw water from Little North Pond, for the purpose of irrigation/commercial/municipal (ie: commercial domestic). A waterworks system of mains was developed for the purpose of distributing and supplying water to the public, at each individual vacation chalet, which was privately owned. 5.

In the Deed of Conveyance dated the 16 th day of April 2003, HVRC sold, assigned, and conveyed one (1) lot in Humber Valley Resort known as Lot 5, to John Michael Snell, Penelope Louise Clayton, and Rebecca Claire Snell. A condition of sale was that HVRC would be the exclusive agent in regard to all leases, mater leases and rentals related to property located at Lot 5. 6.

In correspondence dated the 5 th day of November 2008, Derrick White, President of Humber Valley Resort Corporation, advised all property owners in the area known as Humber Valley Resort, that they were released from all legal obligations to HVRC, including the owners of Lot 5, due to the impending foreclosure and bankruptcy of HVRC under the Companies’ Creditors Assignment Act. 7.

On the 11 th day of March, 2010, 61839 Newfoundland and Labrador purchased all of the real and personal property assets of Humber Valley Resort Corporation, including the water distribution system which supplied water to the public through a system of mains to or for the public, for compensation. 8. In a Deed of Conveyance dated on or about the 10 th day of October 2011, John Michael Snell, Penelope Louise Clayton, and Rebecca Claire Snell, sold, assigned and conveyed Lot 5, Humber Valley Resort to the Applicant. 9.

In correspondence dated the 28 th day of February, 2012, from 61839 Newfoundland and Labrador Limited, the Applicant was notified that the Applicant was required to pay $8.000.00 for an annual “Resort Services Fee”, $5,000 for a “Water Connection Fee”, and while the requisite fee was waived for an annual “Water Fee”, required to enter into mandatory agreements for all three (3) fees. Failure to pay the fees and enter into the three (3) mandatory agreements would result in discontinuation of water services. 10.

On or about the 31 st day of July, 2016, a Water Use Licence was issued to 61839 Newfoundland and Labrador Limited, authorizing the withdrawal and use of water from Little North Pond, the purpose of Commercial Irrigation and Private water system

which supplies water through a system of mains to private properties locate din (sic) the area known as Humber Valley Resort. [ 18 ] It is clear from the above statement of facts that the result of any decision of the Board for the requests and demands of the Applicant Buckle could have consequences for the remaining 220 owners of private property in the Humber Valley Resort area in an unincorporated community which is not regulated pursuant to the Municipalities Act , S.N.L. 1999, c. M-24 .

This is evident from the fact that since April 2, 2003 the company was operating under a water use licence allowing Humber Valley Resort Corporation to withdraw water from Little North Pond, for the purpose of irrigation/commercial/municipal (i.e. commercial domestic). That Humber Valley Resort Corporation had developed a waterworks system of mains for the purpose of distributing and supplying water to the public, at each individual vacation chalet, all of which are privately owned. [ 19 ] In an affidavit filed by the intervenor 61839 Newfoundland and Labrador Ltd. and attached as exhibit #9, Mr.

Gary Oake, Managing Director of Operations for 61839 Newfoundland and Labrador Limited outlined the connection between the companies’ water supply system and the Provincial Government regulation. Mr. Oake in a statement dated August 16, 2017 states: The water supply for Humber Valley Resort is drawn from Little North Pond. The water supply for users at Humber Valley Resort is regulated by the Province of Newfoundland and Labrador, Department of Environment and Conservation, Water Resources Management Division.

It has been operated by 61839 NL since its acquisition of the Humber Valley Resort assets including its infrastructure on March 11, 2010. [ 20 ] Further in the final paragraph of the statement Mr.

Oake states as follows: 61839 NL complies with the regulatory regime of the Province of Newfoundland and Labrador on water resources and cooperates with the Water Resources Management Division on a timely basis, as well as providing government with unimpeded access to all components of the water supply system for their inspection and monitoring activities as required within the overall context of their responsibilities under the regulatory regime 61839 NL operates within. [ 21 ] For the purpose of the present hearing it is unnecessary to make any comment on the facts as outlined in Mr.

Buckle’s Application at paragraphs 1 to 10 or in Mr. Oake’s statement set out above as these can be dealt with on any hearing on the merits of Mr. Buckle’s Application. [ 22 ] However, by setting out these facts it does allow the Court to understand the circumstances and how they relate to the issue before the Court. [ 23 ] The question for this Court is whether it has jurisdiction to grant Mr.

Buckle his request in asking this Court to order the Board to regulate 61839 Newfoundland and Labrador Ltd. as it relates to water distribution and the setting of rates for that distribution and if so, under what conditions. position of the board of commissioners of public utilities [ 24 ] As set out earlier in this decision the Board raised the issue as to whether this Court should hear the Application filed by the Applicant Buckle. [ 25 ] Simply put, the Board in its brief and in oral argument claims this Court does not have the jurisdiction and alternatively if it has inherent jurisdiction to hear the Application it should exercise its discretion and refuse to hear the Application because there is an alternate recourse under the Public Utilities Act which governs the Board.

The Board cites sections 99 – and 101 of the Public Utilities Act as the appropriate mechanism for the granting of any relief, to the Applicant Buckle. relevant legislation [ 26 ] The Board takes the position that any remedy requested by Buckle has to be taken in the Newfoundland Court of Appeal pursuant to the Public Utilities Act . They refer to several sections of the Public Utilities Act : 99.

(1) An appeal lies to the Court of Appeal from an order of the board upon a question as to its jurisdiction or upon a question of law, but the appeal can be taken only by leave of a judge of the court, given upon an application presented within 15 days after the making of the decision and upon the terms that the judge may determine.

(2) Notice of the application shall be given to the parties or their solicitor and to the board at least 2 clear days before the presentation of the application. [ 27 ] The Board also refers to sections 101 and 102 of the Public Utilities Act : 101. The board may of its own motion or upon the application of a party, and upon the security being given as the board directs state a case in writing for the opinion of the Court of Appeal upon a question which in the opinion of the board is a question of law and a similar reference may also be made at the request of the Lieutenant-Governor in Council. 102.

The Court of Appeal shall hear and determine the question of law arising in a case stated under

section 101 and remit the matter to the board with the opinion of the court attached. [ 28 ] The Board takes the position that jurisdictional issues or issues of law can only be taken to the Court of Appeal by an appeal within 15 days of the decision. In this case, Buckle waited one year and one day from the filing of the decision to make an application to the Trial Division by Originating Application. They take the position the 15 days are long past and Buckle does not come to the Court

with a remedy of last resort, just because he ignored the legislation set out in

section 99. [ 29 ] That the Board in declining jurisdiction did not see fit to file a stated case on a question of law or jurisdiction as would be its right to do so, and gave no reasons why the request of Mr. Buckle, the Applicant was outside the Board’s jurisdiction. [ 30 ] The Board requests the Application not being a remedy of last resort should be dismissed with costs against the Applicant. position of the intervenor [ 31 ] 61839 Inc. as Intervenor supports the position of the Board (Reference: paragraph. 27 of the Intervenor’s brief in i.e. reference to

section 99 and

section 101 ). [ 32 ] The Intervenor classifies the Originating Application as an Application for mandamus , asking this Court to order the board to do certain things for water distribution for all of the residents of Humber Valley Resort and the Applicant Buckle. 61839 Inc. say mandamus is an extraordinary remedy and is a remedy of last resort. Because the Board is a creature of statute, it is governed by the statute and as such is governed by the Public Utilities Act . [ 33 ] The Public Utilities Act allows for review and that review is

section 99 and

section 101 by way of appeal or stated case. Because there are alternate remedies available and mandamus is a remedy of last resort, this Court should exercise any discretion it has and defer to the Court of Appeal. The Intervenor states what Buckle is requesting of this Court is not reasonable, considering the framework of the legislation governing the Board and the availability of a remedy from the Court of Appeal. position of the applicant, Timothy buckle [ 34 ] Mr. Buckle takes the position that 61839 Inc. is a public utility.

He says this is the case because 618391 Inc. comes within the definition of a public utility. He refers to 2(1)(e): (e) "public utility" means a person, firm or corporation that owns, operates, manages or controls in this province equipment or facilities for; (iii) the collection, storage, transmission, delivery or providing of water through mains directly or indirectly to or for the public or a corporation for compensation, [ 35 ] He further refers to section70(1) of the Public Utilities Act : 70.

(1) A public utility shall not charge, demand, collect or receive compensation for a service performed by it whether for the public or under contract until the public utility has first submitted for the approval of the board a

schedule of rates, tolls and charges and has obtained the approval of the board and the

schedule of rates, tolls and charges of the public utility, until altered, reduced or modified as provided in this Act. [ 36 ] The Applicant Buckle takes the position that he and the other lot owners in Humber Valley Resort who avail of the delivery of water service as provided by 61839 Inc. require the protection of the Public Utilities Act to preserve and ensure the continuation of the service. [ 37 ] At paragraphs 13 and 14 Buckle outlines his concerns with 61839 Inc.

Paragraph 14 of the Application states: 14. 61839 Newfoundland and Labrador Limited is charging and demanding compensation for water services provided, without approval by the Public Utilities Board, as required by the Public Utilities Act . 61839 Newfoundland and Labrador Limited also threatens the disconnection of water services for non-payment of unrelated municipal type services described as “Resort Services Fees”. [ 38 ] Paragraph 15 of the Application states:

Section 38 of the Public Utilities Act prohibits the abandonment of works or discontinuation of a service without the written consent of the Public Utilities Board. [ 39 ] Paragraph 16 state: 16. The Applicant and the general public who avail of the delivery of water service as provided by 61839 Newfoundland and Labrador require the protection of the Public Utilities Act to preserve and ensure the continuation of the service. [ 40 ] It is not for this Court to make a determination as to whether 61839 Inc. is or is not a public utility for the purpose of the present application.

I have outlined the above reference as to why Buckle in his Application believes that this is to be the case. I do this because it shows the enormous implications of such a finding. The consequences of such a finding could have some implications for all unincorporated areas of the province of Newfoundland and Labrador where water is supplied to residents not covered under the Municipalities Act . The Board in its correspondence to Buckle’s request declined jurisdiction saying it is not within the scope of their mandate.

Buckle disagrees and comes to the Trial Division to have this Court mandate the Public Utilities Board to act and require the Public Utilities Board to set rates as I have outlined earlier. analysis [ 41 ] Does the Trial Division of the Supreme Court have jurisdiction to grant the relief requested by the Applicant Buckle? If it does have such jurisdiction, should the Court exercise such jurisdiction?

[42] The Public Utilities Act sets out how the Public Utilities Board is to govern itself. It is a creature of the Public Utilities Act. The Government has set out its powers and has created Regulations which direct the Public Utilities Board. It has set out a procedure tobe followed once a decision of the Board is made. This is especially relevant in a case where the Board decides it does not havejurisdiction to grant the relief requested or where the Board refuses to act on a particular request. In the first situation it is a purequestion of the jurisdiction of the Board to act. In the second situation, it is a question as to whether the Board erred in not acting upon arequest. [43] Under

section 101 the Board has a discretion to state a case in writing for the opinion of the Court of Appeal upon questionswhich in the opinion of the Board is a question of law. [44] In the present case, once the Board made the decision that it did not have jurisdiction to hear the case, Buckle had the right tomake application to the Court of Appeal for leave to appeal on the jurisdictional issue.

As well, Buckle could have requested the Boardto file a stated case on the question of law as to whether 61839 was a public utility under the Public Utilities Act and whether 61839 Inc.is bound by the Public Utilities Act before setting fees to its customers. [45] Section101 also allows the Board of its own motion to take a stated case to the Court of Appeal. If the Board refuses to state acase, a party may make application to state a case upon security being provided to the Board as directed. liberal

interpretation of Public Utilities act [46] Any

interpretation of the Public Utilities Act has to take into consideration the aim and objective of the legislation. One ofsuch objectives is the protection of the public from unreasonable fees charged by utilities. 37.

(1) A public utility shall provide service and facilities which are reasonably safe and adequate and just and reasonable. 82. Where the board believes that a rate or charge is unreasonable or unjustly discriminatory, or that a reasonable service is notsupplied, or that an investigation of a matter relating to a public utility should be made, it may, of its own motion, summarily investigatethe rate or charge or matter with or without notice. [47] Any

interpretation of the legislation should be given a liberal

interpretation of the plain meaning of the language used in thelegislation. [48] The regulations enacted under the legislation should also be liberally interpreted with the object of the protection of the publicfrom unreasonable fees and services as provided under the Public Utilities Act. I refer to Newfoundland (Board of Commissioners ofPublic Utilities), Re (1998), (NL CA), 164 Nfld. & P.E.I.R. 60, 507 A.P.R. 60 (Nfld. C.A.), at paragraph 16: 16.

It is necessary to examine the specific legislative provisions in the larger regulatory context and against the background of the purposes of the legislation and the general principles which have been developed as part of regulatory practice9. This approach followsfrom s. 118 of the Act which provides: 118.

(1) This Act shall be interpreted and construed liberally in order to accomplish its purposes, and where a specific power orauthority is given the board by this Act, the enumeration of it shall not be held to exclude or impair a power or authority otherwise in thisAct conferred on the board.

(2) The Board created has, in addition to the power specified in this Act, all additional implied and incidental powers which may beappropriate or necessary to carry out the powers specified in this Act.

(3) A substantial compliance with the requirements of this Act is sufficient to give effect to all the rules, orders, acts and regulationsof the Board, and they shall not be declared inoperative, illegal or void for an omission of a technical nature. [49] Green, J.A. goes on to state that a literal and technocratic

interpretation and application of the provisions of the Public UtilitiesAct should be avoided (Reference: Paragraph 18 of the Newfoundland (Board of Commissioners of Public Utilities), Re). 18. It follows from these provisions that a literal and technocratic

interpretation and application of the provisions of the Act is to be avoided, in favour of an

interpretation which will advance the underlying purpose of the legislation11 as well as the power policy of theprovince and be consistent with generally accepted sound public utility practice. [50] The Applicant Buckle argues that

section 101 is not available to him in relation to stated case because it does not apply to anindividual. He refers to s. 84 of the Public Utilities Act: 84.

(1) Upon a complaint made to the board against a public utility by an incorporated municipal body or the Newfoundland andLabrador Federation of Municipalities or by 5 persons, firms or corporations, that the rates, tolls, charges or schedules are unreasonableor unjustly discriminatory or that a regulation, measurement, practice or act affecting or relating to the operation of a public utility isunreasonable, insufficient or unjustly discriminatory or that the service is inadequate or unobtainable, the board shall proceed, with orwithout notice, to make the investigation that it considers necessary or expedient.

[ 51 ] Buckle argues he as an individual of an unincorporated community is prohibited from taking a stated case to the Appeal court as an individual. He further argues

section 99 was not available because the Board did not make an order which he could appeal. He claims that he received notification from the Board by correspondence that the Board did not have jurisdiction to act on his request in relation to 61839 Inc. He claims there was no Board order filed in the usual manner with a date and number which is posted on its website. [ 52 ] This Court is of the view that a liberal

interpretation of the Public Utilities Act and the regulations when read together allows Buckle as an individual to be considered as a person pursuant to the Public Utilities Act for the purposes of taking a request in writing to the Board. [ 53 ] Under the Board of Commissioners of Public Utilities Regulations, 1996 , N.L.R. 39/96 enacted under the Public Utilities Act , O.C. 96-476 sets out the definition of an applicant under the

section 2 Definition

section as follows: (a) "applicant" means a person who makes an application to the board to hear or determine any matter; (emphasis added)’ [ 54 ] “Person” and “Party” are defined under subsections (

d) and (e): (d) "person" includes a corporation, unincorporated groups of individuals, partnership and a government department or agency; and (emphasis added) (e) "party" means applicant or intervenor [ 55 ] Mr. Buckle is clearly a person and he as well is an applicant in the broad sense. [ 56 ] In this particular case, Buckle made a request to the Board in writing. Buckle also received a reply from the Secretary of the Board, Ms. Cheryl Blundon confirming receipt of Buckle’s letter to the Chairman of the Board dated April 5, 2016 and addressed to the Chairman of the Board Mr. Andy Wells.

In that correspondence Mr. Buckle sets out reasons why he is asking the Board to determine whether it had jurisdiction to determine whether it had a legislated obligation to set fees for a private company in 61839 Inc. who provides water services to the public occupying residences in the Humber Valley Resort area. [ 57 ] The letter to the Chairman of the Board, is set out at Tab 1 of the respondent’s List of Documents.

At paragraph 4 of that letter it clearly sets out why he is making the request: I require a determination from the Public Utilities Board as the Department of Environment are in the process of issuing a Water Use Licence to 61839 without any legislative or regulatory control to prevent a monopoly water supply service in the area known as Humber Valley Resort. [ 58 ] He goes on to state that he had requested the Minister of Environment to intervene as he had objected pursuant to section 86(4) of the Water Resources Act , S.N.L. 2002 c.

W-4.01. [ 59 ] Buckle requested the Board to set rates for the company and set out in the last paragraph the reasons for his request. Buckle in his letter to the Board states: … A for-profit, commercial water service, operated by a corporation would hold a monopoly over water service in the area of Humber Valley Resort and also a dangerous precedent of unfettered right to set water connection fees, water rates, and even discontinue water services if a private property owner disputes such arbitrary fees. [ 60 ] The Board clearly has the right to deal with such requests.

Section 82 of the Public Utilities Act states 82. Where the board believes that a rate or charge is unreasonable or unjustly discriminatory, or that a reasonable service is not supplied, or that an investigation of a matter relating to a public utility should be made, it may, of its own motion, summarily investigate the rate or charge or matter with or without notice. [ 61 ] In this case, the Board took some six months to reply to Mr. Buckle. In that reply it determined that the Board did not have jurisdiction in that the services provided by 61839 NL were not within the Board’s jurisdiction.

This letter was signed by the Board Secretary. There were no reasons given by the Board as to why the Board had no jurisdiction. This is clearly a question of law and there certainly were avenues for Mr. Buckle to have taken this further. [ 62 ] The Board accepted his letter of request and a formal reply from the Board Secretary made it clear the Board reviewed the matter and made a decision on jurisdiction. Section 99(1) of the Public Utilities Act is clear: 99.

(1) An appeal lies to the Court of Appeal from an order of the board upon a question as to its jurisdiction or upon a question of law, but the appeal can be taken only by leave of a judge of the court, given upon an application presented within 15 days after the making of the decision and upon the terms that the judge may determine. [ 63 ] Subsection (2) sets out the procedure to be followed:

(2) Notice of the application shall be given to the parties or their solicitor and to the board at least 2 clear days before the presentation of the application. [ 64 ] The Court of Appeal by statute is the court of review as it relates to jurisdictional issues or issues of law from a board decision. There is a statutory review process in place.

[ 65 ] Mr. Buckle’s request to the Supreme Court, Trial Division is clearly asking this Court to order the Board to take action. It is in the nature of mandamus and even if this Court had a discretion to be exercised in favour of Mr. Buckle’s request I would not exercise such a discretion because the matters raised by Mr.

Buckle raise issues that potentially could be far reaching as it relates to the Board’s jurisdiction into the future. this application [ 66 ] The present application before this Court is not like the electric utility application’s that we often see before the Board for rate hikes by electric utility companies, whereby, the citizen’s representative becomes involved on behalf of the public interest.

Most of the incorporated towns and cities are regulated pursuant to the Municipalities Act , when it comes to the supply of water services. [ 67 ] It would appear to this Court that the appropriate court to review this issue of jurisdiction of the Board would be the Court of Appeal of the Province. [ 68 ]

Section 101 of the Public Utilities Act allows for a stated case to the Newfoundland and Labrador Court of Appeal on a question of law on the Board’s own motion to the Court or upon the application of a party. [ 69 ] Mr. Buckle did not appeal within the allotted time as set out in

section 99 of the Public Utilities Act . Buckle did not file an application to the Court of Appeal for leave to appeal on a point of law or request the Board to state a case to the Court of Appeal. [ 70 ] Buckle’s inaction does not give this Court jurisdiction to order the Board to a particular action. For the reasons stated above I decline to exercise any discretion to order the Board to do anything. [ 71 ] Because 61839 NL continues to provide these services to the owners of properties in the Humber Valley Estates there continues to be an ongoing issue. [ 72 ] Mr.

Buckle, as an owner of property, is a person with an interest in the issue he has raised and future requests to the Board by himself or other members of the community collectively could result in future orders or decisions of the Board so as to avail of

section 99 or

section 101 of the Public Utilities Act , for further review of the Board Decision. Buckle refers to this in his own Memorandum of Law. At paragraph 21 he states: Section 99(1) of the Public Utilities Act limits any appeal of an order of the Board to 15 days subsequent to the order being issued. 61839 continues on an ongoing daily basis to provide water services while demanding compensation for such services and is in breach of the Public Utilities Act.

Each day is a separate breach of the Act ad the Board fails to ensure that the Public Utilities Act is adhered to by 61839. [ 73 ] Under the present legislation there are alternative remedies, for any present or future alleged breaches of the legislation. I would decline the jurisdiction of this Court, to allow the application to proceed and dismiss the application of Mr. Buckle. There is alternative remedial action open to Mr. Buckle or any other property owner or owners collectively, to have this issue resolved. costs [ 74 ] It is appropriate to order costs in accordance with Column 3 of the Scale of Costs.

These costs should be accorded to the Respondent, the Public Utilities Board, and the Intervenor 61831 NL. The Intervenor who was not originally made a party to the application, had to seek intervenor status to be properly heard on the present application by Mr. Buckle, who represented himself throughout this application _____________________________ Wayne G. Dymond Justice