2022 NLCA 28, 2022 NLCA 28

Timothy Buckle (appellant) v. Newfoundland and Labrador Board of Commissioner of Public Utilities (first respondent), and 61839 Newfoundland and Labrador Limited (second respondent) (19/54) Indexed As: Buckle v. Newfoundland and Labrador Board of Commissioners of Public Utilities 2022 NLCA 28 7 C.A.N.L.R. 527 Court of Appeal of Newfoundland and Labrador Green, O’Brien and Knickle JJ.A. May 5, 2022

Summary: The appellant purchased a residence within the Humber Valley Resort where the company owned and controlled the source of water and means of its distribution to residential dwellings within the resort. The appellant wrote a letter to the Board to request a determination in respect of whether the company was a public utility and could therefore be regulated by the Board. The Board claimed that the services provided by the company were outside the Board’s jurisdiction. The appellant sought an order of mandamus requiring the company to submit to the Board for approval a

schedule of rates, tolls and charges for the water services it was supplying. His application was dismissed. The appellant then applied to the Board requesting it to state a case to this Court to determine whether the company was a public utility. The Board dismissed that application. The appellant seeks leave to appeal the Board’s order, submitting that it erred in the exercise of its discretion in deciding not to state the case as requested or alternatively in not deciding the question as to whether the company is a public utility. Held: Leave to appeal denied, matter remitted to the Board.

Green J.A. (O’Brien and Knickle JJ.A. concurring): The appellant’s request was to state a case with a view to having this Court decide the public utility question. If leave were granted, the question would be whether the Board made an error of law or jurisdiction in deciding not to state a case (paragraphs 29-34).

Section 99 of the Public Utilities Act limits appeals of Board orders to questions of jurisdiction or law. In addition, the appellant must establish that he has a reasonably arguable case for success on appeal (paragraphs 35-40). The Board gave reasons for refusing to state a case. In particular, a case should not be stated unless the requested opinion is essential to the Board’s ability to deal with the matter. Generally, that threshold will not be met if the Board is called upon to interpret its home statute on an issue within its expertise.

The decision to state a case is in the discretion of the Board, and may involve consideration of a variety of diverse factors depending on the circumstances (paragraphs 45-50). Whether a party is a public utility is central to the Board’s exercise of much of its regulatory power. Its decision would be subject to

appeal in accordance with

section 99 of the Public Utilities Act (paragraph 51). The Board did not err in refusing to state a case as requested by the appellant. However, the matter was remitted to the Board to considerthe issue of whether the second respondent is a public utility, and to make that determination in accordance with the principles offundamental justice (paragraphs 52-55). Cases cited: Waste Management of Canada Corp. (Re), [2015] OARBD No 271 Newfoundland and Labrador Hydro v. Newfoundland and Labrador (Board of Commissioners of Public Utilities), 2012 NLCA 38, 323Nfld. & P.E.I.R. 127 Consumer Advocate v.

Newfoundland Power Inc., 2006 NLCA 20, 255 Nfld. & P.E.I.R. 234 Labrador City (Town) v. Newfoundland and Labrador Hydro Inc. (2004), 2004 NLCA 61, 241 Nfld. & P.E.I.R. 81 Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (Nfld CA) Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 Bell Canada v. Canada (Attorney General), 2019 SCC 66 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 Statutes considered: Public Utilities Act, RSNL 1990, c. P-47, sections 101, 2(1)(h), 16, 70, 99 Counsel: Wayne White, for the appellant; Michael J. Collins, for the first respondent; Graham C.

Watton Q.C., for the second respondent. The appeal was heard on December 8, 2021 before Green, O’Brien and Knickle JJ.A. The following judgment was filed on May 5, 2022 by Green J.A. for the Court. ______________________________________________________________ Green J.A.: INTRODUCTION [1] The appellant seeks leave to appeal and, if leave is granted, appeals from a decision styled as an order of the Newfoundland andLabrador Board of Commissioners of Public Utilities. The Board refused to accede to the appellant’s request to state a case to this Courtunder

section 101 of the Public Utilities Act, RSNL 1990, c. P-47 (the “Act”), on the issue of whether the second respondent, 61839 NLLtd., which supplies water to residential dwellings in a development known as Humber Valley Resort, is a public utility within themeaning of section 2(1)(

h) of the Act. The appellant submits that the Board erred in the exercise of its discretion in deciding not to statethe case as requested or, alternatively, in not itself deciding the question as to whether the company is a public utility. [2] The consequence of a finding that the company is a public utility is that it would be subject to the regulatory provisions of theAct.

Those provisions include the general supervision of the utility by the Board together with the right to make inquiries into itsoperations (s. 16) and the setting of rates, tolls and charges for the water services delivered by the utility (s. 70). [3] I would deny leave to appeal. An appeal to this Court from an order of the Board is limited to appeals on questions ofjurisdiction or law.

The appellant has not satisfied me that the issues on appeal engage either of those matters. [4] A tribunal decision as to whether or not to state a case for the opinion of this Court is quintessentially a discretionary decision towhich considerable deference should be given unless there is an error of jurisdiction or law or a manifest injustice is disclosed. Adecision to state, or not state, a case can involve a variety of diverse considerations depending on the particular circumstances, rather than

a fixed set of principles. The appellant has not demonstrated an arguable case that the Board made a jurisdictional error, or an error in legal principle in reaching its decision, or that it took into account irrelevant factors or failed to consider relevant ones.

Further, it is not arguable, in the view I take of the case, that the Board’s decision not to state a case causes a manifest injustice resulting from any error of law or jurisdiction. [ 5 ] The result is that the issue of whether the company is a public utility must be remitted to the Board to be dealt with in response to any refreshed or new application made by the appellant or others that engages that issue. [ 6 ] My reasoning for the foregoing conclusions is set out in the reasons for judgment that follow.

BACKGROUND [ 7 ] It is not necessary, for the purposes of this appeal, to set out in any detail the lengthy and somewhat complex factual background of the Humber Valley Resort and the company’s and the appellant’s ultimate involvement in it. It is sufficient to note that the company purchased from the trustee in bankruptcy of a former owner the infrastructure, including water distribution system, and unsold dwelling units and land comprising the resort.

As the entity owning or controlling the source of water and means of its distribution to residential dwellings within the resort, the company sought to regularize the supply of water to the resort by entering into private contracts with each of the existing property owners which would provide for the payment of certain fees. Those fees were, by the terms of the contracts, subject to unilateral revision by the company. [ 8 ] The appellant, who had purchased a residence within the resort from a prior owner, refused to enter into the contracts proposed by the company.

He took the position that the company was a public utility and was subject to regulation by the Board which should set fees that were fair and reasonable. He contacted certain politicians about the issue, including the Minister of Justice, who referred his correspondence to the Board. [ 9 ] On April 2016, the appellant wrote the chair of the Board (the “Initiating Letter”) which in

part contained the following language: In light of this referral to the Public Utilities Board [by the Minister of Justice], I am inquiring whether the PUB is of the view that it does have a legislated obligation to set fees for the provision of water services by [the company].

By definition, [the company] is a “public utility” in that it is a corporation that owns, operates, manages, and controls equipment and facilities for the collection, storage, transmission, delivery and provides water through mains to the public for compensation. … 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 [the company] without any legislative or regulatory control to prevent a monopoly water supply service in the area known as Humber Valley Resort. ( Appellant ’s Appeal Book, Tab 4(a)) [ 10 ] In his letter, the appellant also referred to government processes under other legislation providing for issuance of water licences and noted that the position of government appeared to be that a licence should be given to the company to take water from the designated water source without there being any governing legislation, presumably because the resort was not an incorporated municipality.

He emphasized that allowing a company to hold a monopoly over water service in the Humber Valley Resort without any regulation would set “a dangerous precedent”. He ended by stating that he was available at any time to “discuss” the matter further. [ 11 ] The chairman took six months to reply to the Initiating Letter.

On October 13, 2016 a letter under the hand of the secretary of the Board (the “Initial Reply Letter”) was sent to the appellant referenced as “Request for the Board to Consider its Legislative Responsibility regarding the Humber Valley Resort Water Distribution System – Board’s Reply.” ( Appellant ’s Appeal Book, Tab 4(b)).

The operative part of the letter simply stated: The Board has determined that the services provided by [the company] are not within the Board’s jurisdiction. [ 12 ] No reasons for this “determination” (it was not called an order and no decision number was assigned to it) were given, except to state later on in the Order under appeal that it was based upon “a review of the legislative provisions and the prior history of water utility regulation in the province.” (Order, at 1) [ 13 ] Notably, the determination did not say the Board had concluded that the company was not a “public utility”.

There may have been other unstated reasons why the Board felt it had no jurisdiction.

If this was meant to be a definitive order that the Board had no jurisdiction because the company was not a public utility, it is odd, given the way in which the inquiry was initiated, and the fact that the Board was a statutory delegate to which the rules of natural justice and administrative fairness applied, that the Board did not signal to the appellant: - that it was treating his “inquiry” as a formal application; - invite him to make formal submissions; - require notice on such an important issue to be given to others potentially affected (the company, other property owners and possibly even the Government of Newfoundland and Labrador); - hold a hearing either orally or in writing, where all points of view could be heard; and - provide some level of rationale for its final decision or at least enough information to understand its import.

[ 14 ] The legal characterization of the Initial Reply Letter – specifically, whether it constituted an “Order” under

section 99 of the Act and was thereby subject to appeal – became a focus of argument on appeal, affecting how the parties viewed the events that subsequently occurred. [ 15 ] Following the Board’s determination, the appellant applied to the General Division of the Supreme Court for an order directing the Board to require the company to submit to the Board for approval a

schedule of rates, tolls and charges for the water services it was supplying. The Court treated the matter as an application for mandamus . Underpinning the application was the idea that the company was a public utility which the Board was required by statute to regulate. It also effectively put in issue the correctness of the determination by the Board that it had no jurisdiction to deal with the appellant’s initial request to the Board. [ 16 ] The Board challenged the jurisdiction of the General Division to entertain the appellant’s application. It argued that the appellant’s remedy was to appeal the Board’s determination under

section 99 of the Act which provides: 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. [ 17 ] This appeal route was not taken and the 15 day time limit had by then expired. This argument depended on the assumption that the Board’s “determination” constituted an “Order” under

section 99 of the Act . [ 18 ] Alternatively, the Board and the company submitted that even if this Court had jurisdiction, it should decline to exercise its jurisdiction to entertain the application because mandamus was a remedy of last resort and the appellant had other means of challenging the Board’s determination, such as by requesting the Board to state a case to this Court on a question of law pursuant to

section 101 of the Act : 101. The board may of its own motion or upon the application of a party … 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 … [ 19 ] Dymond J. of the General Division dismissed the application ( 2018 NLSC 70 ). He concluded that the “appropriate court to review this issue of jurisdiction of the Board would be the Court of Appeal of the Province” (2018 NLSC 70, at para. 67).

He did not, however, rule that the General Division had no jurisdiction to entertain a mandamus application, because he recognized that the appellant or any other members of the Humber Valley Resort community could in the future seek other decisions of the Board on the issue of regulation of water services which could be the subject of appeal or a stated case on the scope of the Board’s regulatory role. [ 20 ] Dymond J. nevertheless concluded that he should decline to exercise any jurisdiction he might have had, on the basis that: “There is alternative remedial action open to [the appellant] or any other property owner or owners collectively, to have the issue resolved” (para. 73). [ 21 ] I also note in passing that I do not read Dymond J.’s decision as deciding that the company was, or was not, a public utility under the Act .

To him, that was left as an open question, to be resolved in appropriate proceedings at some future time. THE REQUEST TO STATE A CASE [ 22 ] As a result of Dymond J.’s ruling, the appellant wrote the Board formally requesting that it state a case under

section 101 of the Act “to determine whether [the company] is a public utility as defined in the Public Utilities Act ” ( Appellant ’s Appeal Book, Tab 4(d), (the “Stated Case Request Letter”)). Amongst other things, he submitted that under the existing regime of no-fee-regulation, monopoly control over an essential service was effectively given to a private corporation. It was therefore appropriate, he submitted, for the Board to exercise regulatory control. [ 23 ] Unlike in the case of the Initial Reply Letter, the Board responded, accepting the letter as an “application” under the Act .

It posed a number of questions to the appellant, invited further submissions, and required notice of the application to be given to the company and the provincial government. The provincial government declined to intervene. [ 24 ] The company intervened and made extensive submissions in writing opposing the request to state a case. Its submissions included the argument that the Board ought to decline to exercise its discretion to state a case because the appellant had not appealed the original determination by the Board of lack of jurisdiction within the time period set out in the Act .

This submission on the absence of an appeal depended on characterizing the Board’s initial no-jurisdiction “determination” as an “order” that was subject to appeal under

section 99 of the Act . THE BOARD’S DECISION (NO. P.U. 20 (2019)) [ 25 ] In its decision (styled as an “order”), the Board noted that

section 101 of the Act was permissive, but did not set out the particulars as to when a stated case should be made. It wrote: “In determining whether a stated case should be made to the Court of Appeal … the Board considers all of the circumstances, bearing in mind that a reference should only be made when it is necessary and appropriate…” (Order, 3).

Referring to an Ontario Assessment Review Board decision ( Waste Management of Canada Corp. (Re), [2015] OARBD No 271), the Board asserted that “administrative tribunals should not avoid answering difficult questions by stating questions to the Court where these questions could be answered by the tribunals themselves.”. [ 26 ] The Board concluded that it was not necessary to make a reference to the Court. It reasoned: In determining whether [the company] is a public utility the Board must consider whether in the circumstances [the company] fits within the definition of utility in the Act .

This legislation is the Board’s own home statute and is the legislation pursuant to which the Board fulfills its ongoing public utility mandate. The Board believes that the determination as to whether [the company] is a public utility is a determination within the Board’s expertise and further that the opinion of the Court of Appeal is not necessary as it is a question that the

Board can answer itself. (Order, 4) [27] Notably, the Board did not ground its order in notions relating to estoppel or res judicata, namely, that it had already decided theissue of whether the company was a public utility by virtue of the statement in its Initial Reply Letter that “the services provided by [thecompany] are not within the Board’s jurisdiction.” Arguably, in fact, by asserting whether the company was a public utility was a matterwas within the Board’s expertise to answer, the Board was acknowledging that the matter was open for further determination. [28] It is this order declining to state a case to this Court that is the subject of the application for leave to appeal.

ISSUES [29] The initial issue is whether leave should be granted to appeal the Board’s order to decline to state a case to this Court as towhether the company is a public utility within the meaning of the Act. [30] If leave were to be granted, the issue would then be whether the Board erred in reaching its decision to decline to state a case. [31] The appellant argued on the appeal that, in fact, the Stated Case Request Letter contained two requests in the alternative: (

i) tostate a case; or (ii) to decide that the company was a public utility. On this basis, he argued that the current appeal involved not only aquestion of whether the Board erred in law in deciding not to state a case but also whether the Board erred in law in not deciding that thecompany was a public utility. I do not accept that this is a tenable reading of the letter.

In my view, it was a request to state a casesimpliciter with a view to having this Court decide the public utility question. [32] The appeal issue, if leave were to be granted, is therefore limited to whether the Board made an error of law or jurisdiction indeciding not to state a case. [33] Other issues were raised and argued on the appeal, including: whether additional evidence could be adduced; whether, assumingleave were to be granted, the Board committed an error of law or jurisdiction in declining to state a case to this Court; and whether theBoard made errors in not ruling that the company was a public utility.

However, in view of my conclusion that leave to appeal should notbe granted, it is not necessary to address any of these matters. [34] I note in passing, however, that the result of my conclusion not to grant leave is that the underlying issue of whether the companyis a public utility and is therefore subject to Board regulation remains unanswered.

Even if one could interpret the Board’s Initial ReplyLetter (which did not expressly ground its statement that it had no jurisdiction on the basis of the absence of the company’s status as apublic utility) as meaning that it was in fact definitively deciding that the company was not a public utility, there is nothing to prevent theappellant or any other resident of the Humber Valley Resort from raising the issue in a separate application before the Board relating to aclaim that water rates be regulated. These are ongoing issues that remain potentially within the purview of the Board’s regulatory reach.

ANALYSIS Leave to Appeal [35] The decision not to state a case is properly regarded as an “order” within

section 99 of the Act. It is styled as such and was arrivedat after fulfillment of normal procedural processes of giving notice to interested parties, receiving submissions, defining the issues andproviding a reasoned decision. [36]

Section 99 of the Act limits appeals of Board orders to questions of jurisdiction or law and additionally requires that the putativeappellant satisfy this Court that leave to appeal ought to be granted. [37] The leave requirement is a substantive hurdle. It screens out, not only those cases which do not involve questions of jurisdictionor law, but also those which do not present a reasonably arguable case for success (Newfoundland and Labrador Hydro v. Newfoundlandand Labrador (Board of Public Utilities et al.), 2012 NLCA 38, 323 Nfld & PEIR 127; Consumer Advocate v.

Newfoundland Power Inc.et al., 2006 NLCA 20, 255 Nfld & PEIR 234; and Labrador City (Town) et al v. Newfoundland and Labrador Hydro Inc., 2004 NLCA61, 241 Nfld & PEIR 81. [38] In the Labrador City case, Cameron J.A. emphasized that the threshold requirement for granting leave to appeal under

section 99of the Act (that there must be a question of law or jurisdiction at issue) is not met simply by the putative appellant asserting that aquestion of law or jurisdiction is involved. In her words: [5] … It is not enough, however, to merely characterize the issues raised as being questions of law or of jurisdiction. If that were thecase there would be no point in requiring leave. [39] There was, therefore an additional requirement that the putative appellant had to demonstrate a reasonably arguable case forsuccess on appeal.

That meant not only a reasonably arguable case for success on the merits of whatever issues were sought to be arguedon the appeal, but also a reasonably arguable case for the conclusion that an issue of law or jurisdiction was involved. [40] In deciding the latter question, Cameron J.A. also stressed that “… in determining whether there are serious arguable issuesconsideration should be given to the standard of review to be applied by the Court in respect of the particular issues raised” (para. 5).

Themore that the standard of review strays from a standard of correctness, the greater will be the difficulty of meeting the test for leave. Applicable Standard of Appellate Review [41] In the current case, the issue on appeal, assuming leave were to be granted, is whether the Board properly exercised its discretionin declining to state a case to this Court under

section 101 of the Act. In Langor v. Spurrell (1997), (NL CA), 157Nfld & PEIR 301 (Nfld CA), this Court expressed the standard of review in an appeal from a discretionary order (in that case, an order

setting aside a default judgment) as follows: [34] … this court ought not to interfere with the order that was made unless it can be said that the discretion was exercised beyond jurisdiction, contrary to principle, or on the basis of palpable error in appreciation of the facts, or would cause a manifest injustice… [ 42 ] Overlaid on the analysis mandated in Langor is the general standard of appellate review applicable to statutory tribunal appeals as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , and Bell Canada v. Canada (Attorney General) , 2019 SCC 66 .

Those cases established that in cases of statutory appeals the reviewing court is, in the absence of a contrary indication in the statute conferring the right of appeal, to apply ordinary appellate standards of review as laid out in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 . That case established that the standard of appellate review is to be determined according to the nature of the question at issue.

On questions of law there is a non-deferential standard of correctness, whereas on questions of fact or mixed fact and law (where there is no extricable question of law involved) there is a deferential standard of palpable and overriding error. [ 43 ] Applied in the context of appeals from discretionary orders, therefore, the standard of review under Langor would be correctness where the issue is one of jurisdiction or failure to follow legal principle but would be one of palpable and overriding error where the issue involves an alleged failure to appreciate factual matters.

The “manifest injustice” part of the Langor test does not fit easily into the Housen formula but it can be said that in the relatively rare case of the existence of a manifest injustice (such as a breach of natural justice or a completely irrational decision leading to an absurd result) such a situation would be regarded as a violation of legal principle, to which a standard of correctness would apply. [ 44 ] In the context of the current appeal, however, there is a further limiting consideration. Appeals are limited to issues of jurisdiction or law.

Consequently, the Langor approach must be modified to limit appellate review to questions of jurisdiction or alleged questions of application of proper legal principle (to which a standard of correctness would apply). It would exclude consideration of allegations of failure to appreciate factual matters (to which a standard of palpable and overriding error would apply), unless, considering the case as a whole, it could be said that a manifest injustice resulted.

Scope of the Appeal [ 45 ] If leave were to be granted, the issue on appeal would be whether the Board erred in jurisdiction or in identification or application of legal principle or otherwise created a manifest injustice in declining to state a case to this Court. As discussed earlier, I reject the appellant’s submission that the Board was being asked to determine either to state a case or to decide whether the company was a public utility and that failure to do either amounted in effect to a declining to exercise jurisdiction.

The issue before the Board was simply whether to state a case to this Court on the public utility question. [ 46 ] Applying the standard of appellate review discussed above, any questions involving jurisdiction or legal principle relative to the question the Board was being asked to decide would be measured against a standard of correctness.

It is incumbent on the appellant, however, to identify any such arguable issues. [ 47 ] In my view, the appellant has not done so. [ 48 ] Much of the appellant’s submissions on the appeal related to establishing that the company met the definition of “public utility” in the Act and that the Board therefore erred in law not so deciding. That, however, was not the issue before the Board. It had to decide whether or not to ask, by way of stated case, for this Court’s opinion on that matter.

As already indicated, the appellant did not ask the Board to seek a stated case on the public utility issue, or as an alternative , to decide that issue itself. It was simply a request that the Board state a case for the opinion of this Court. By declining to state the case, the Board was not declining to decide the “public utility” issue.

That matter remained to be decided in any hearing properly and subsequently conducted by the Board. [ 49 ] Accordingly, the sole issue before this Court on appeal, if leave were to be granted, is whether the Board made an error of jurisdiction or legal principle in its decision not to state a case to this Court. [ 50 ] In declining to state a case, the Board gave reasons for its decision. It pointed out that the Board should not state a case unless the opinion being sought is essential to the Board’s ability to deal with the matter before it ( Order , at 3).

Generally, that will not be necessary where the Board is being called upon to interpret its home statute on an issue that is within its expertise. The Board concluded that the question of whether the company was a public utility within the meaning of the Act was “a question that the Board can answer itself.” (Order, at 4). There is nothing in this analysis that appears to involve the application of a wrong principle or a wrongful exercise or refusal to exercise jurisdiction, and the appellant has not pointed to any.

The decision whether to state a case for the court can involve consideration of a variety of diverse factors that depend upon the circumstances of the individual case. The selection of applicable factors to consider is within the discretion of the Board. There is nothing on the record here to indicate that the Board failed to consider some relevant factor or considered a matter that it ought not to have considered. [ 51 ] There can be no doubt that the determination of whether a party is a public utility is central to the ability of the Board to exercise much of its regulatory power.

The regulation of public utilities is what the Board does. It is completely appropriate for the Board initially to make the determination of whether a body, in respect of which there is a claim that it should be regulated, is in fact a public utility. That can be made as part of any properly submitted application for the Board to exercise its regulatory power. Any decision made by the Board in that regard would then be subject to statutory appeal on a question of jurisdiction or law under

section 99 of the Act . At that point, this Court’s opinion on those issues would be engaged. Decision on Leave Issue [ 52 ] From the foregoing discussion, it can be seen that the appellant has not raised any apparent jurisdictional or legal issue with respect to the decision to decline to state a case. The appellant’s arguments were focused on other issues, the determination of which do not relate to the leave issue. [ 53 ] Consequently, there is no basis for granting leave to appeal the decision not to state a case. Far from there being an absence of

any reasonable arguable case for success on the appeal, no such basis was engaged at all. Further, there was nothing to suggest that any manifest injustice was created by the way in which the Board dealt with the matter. [ 54 ] In reaching this conclusion, I am aware of the respondent’s argument that the initial determination of the Board (that it did not have jurisdiction to regulate the company) constituted an order under

section 99 of the Act that was subject to appeal. If that were to prevail, it might be argued that there would be a manifest injustice to the appellant if he now would be deprived, by the passage of time, to argue the “public utility” issue in any forum without having had a full hearing on such an important matter. However, I do not see that as a credible argument preventing, on the basis of estoppel or res judicata , the appellant from subsequently raising the issue in the context of a proper application for a full hearing on the matter before the Board.

It is difficult to conceive that the Board’s initial determination could be regarded as a formal order of the Board, given that it was made without notice to all parties affected by the issue and without a full hearing within the Board’s normal processes.

CONCLUSION [ 55 ] For the foregoing reasons, I would deny leave to appeal and remit the matter to the Board to deal with any refreshed or new application made by the appellant or any other affected person that engages the issue of whether the company is a public utility for the purposes of regulation by the Board. [ 56 ] I would make no order for costs in this Court on this matter. Leave to appeal denied, matter remitted to the Board.