Public Utilities Board v. Manitoba Public Date:, 2011 MBCA 88

Citation: Public Utilities Board v. Manitoba Public Date: 20111122 Insurance Corp. et al., 2011 MBCA 88 Docket: AI 10-30-07364 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Madam Justice Holly C. Beard Mr. Justice Alan D. MacInnes BETWEEN : THE PUBLIC UTILITIES BOARD ) W. S. Saranchuk, Q.C. and ) C. A. Everard Applicant ) for the Applicant ) - and - ) ) J. F. Rook, Q.C., MANITOBA PUBLIC INSURANCE ) R. K. Agarwal and CORPORATION ) K. L. Kalinowsky ) for the Respondent Respondent ) ) - and - ) J. B.

Williams ) for the Interveners THE CONSUMERS ASSOCIATION ) OF CANADA (MANITOBA), ) THE MANITOBA SOCIETY OF ) Appeal heard: SENIORS and THE MANITOBA ) January 10 and 11, 2011 MOTOR LEAGUE ) ) ) Judgment delivered: Interveners ) November 22, 2011 BEARD J.A. I. THE ISSUE 1 This matter has come before this court as the result of an impasse between the applicant, the Public Utilities Board (the PUB), and the respondent, the Manitoba Public Insurance Corporation (the MPIC), regarding the disclosure of information by the MPIC to the PUB.

To resolve this impasse, the PUB has filed this application, which comes by way of stated case, pursuant to s. 58.4(1) of The Public Utilities Board Act , C.C.S.M., c.

P280 ( The PUB Act ), asking for the opinion of this court on the following question: Does the [PUB] have the jurisdiction to require the Respondent [MPIC] to disclose to the [PUB]: (a) [MPIC’s] actual and projected financial information including, without limiting the generality of the foregoing, itemized revenues, itemized gross and net costs or expenses, earnings, overall retained earnings, reserves and provisions, cost allocations (including for such expenses as staffing costs), and investment income allocations; and (

b) information concerning [MPIC’s] policies, plans and decisions relating to [MPIC’s] divisions other than compulsory driver and vehicle insurance, also known as the Basic insurance program? 2 The MPIC argues that the following questions should be added and decided: (

c) whether the [PUB] can effectively expand its jurisdiction over MPIC to include non-basic by seeking disclosure of information about non-basic; and

(

d) whether the [PUB] requires information about non-basic to fulfill its narrow mandate. 3 There are three interveners in this matter, who take a joint position supporting the PUB’s position that the PUB has the jurisdiction to require the MPIC to provide the requested disclosure as it relates to the divisions other than basic insurance. They did qualify the PUB’s jurisdiction by stating that it is limited to requiring disclosure of only that information that it reasonably concludes may be relevant to its statutory role in determining just and reasonable rates for basic insurance. II.

STANDARD OF REVIEW 4 This matter has come before this court as a matter of first instance by way of a stated case, and not as an appeal or review of a decision from a lower tribunal. As a result, the principles of standard of review are not applicable. III. THE FACTS 5 What follows is a brief history of the MPIC and its relationship with the PUB. The MPIC was incorporated in 1971 and began operations in 1972, its purpose being to provide compulsory universal automobile insurance for all motor vehicles registered in Manitoba, to be delivered through a Crown monopoly.

Over time, the MPIC expanded its operation by developing other lines of business which were to be conducted on a competitive basis with private insurers. In 2004, the Government of Manitoba added the responsibility for administering driver and vehicle licensing to those operations.

At the present time, the operations of the MPIC are divided into two categories or lines of business for financial reporting purposes, referred to as “basic” and “non-basic,” the first, being the compulsory driver and vehicle insurance (basic insurance), and the second, being all other operations. 6 Other significant changes have occurred over the years that have affected the business operations of the MPIC, including: the replacement of the tort system of determining fault for an accident by a “total no-fault” system; transferring the complete administration of driver licensing and vehicle registration to the MPIC; having insurance brokers collect registration and driver licence fees; adopting on-line services allowing brokers to interact electronically with the MPIC; and instituting an anti-theft program involving the Winnipeg Police Service and Manitoba Justice, which included the installation of vehicle immobilizers, all at additional cost to the MPIC.

As is noted in several general rate application reports by the PUB, many of these significant changes have arisen through legislative amendments that were not discussed with the PUB prior to their disclosure at the MPIC annual general rate application that followed implementation. 7 In 1985/86, the MPIC incurred a large loss on the basic insurance operations. Following this, the government ordered a review of the operations of the MPIC by Judge Kopstein, who submitted his report to the government in 1988.

Based on that report, the government instituted a number of changes to the insurance scheme to implement his recommendations for better accountability, including passing The Crown Corporations Public Review and Accountability Act , C.C.S.M., c. C336 ( The CCAA ), in 1988 and, commencing that year, requiring the MPIC to obtain approval from the PUB for any changes in the rate bases and premiums charged for basic insurance.

Since 1988, the MPIC has had an annual hearing before the PUB to have its rates for basic insurance approved. 8 Since the inception of the annual rate reviews, the MPIC and the PUB have been of different minds regarding the MPIC’s disclosure obligations.

The PUB is of the view that it is entitled to receive information and documents regarding the non-basic lines of business as part of its responsibility to review and approve rates and premiums for basic insurance, while the MPIC is of the view that information that relates exclusively to the non-basic lines of business is irrelevant to the PUB’s mandate and it has refused to provide the information when requested to do so by the PUB. The PUB has never ordered the MPIC to produce the disputed information and, prior to this application, had never challenged the MPIC’s refusal to do so.

Over the years, it has commented on this issue in its orders, but has proceeded to hear and determine the annual rate applications without the information. IV. THE POSITIONS OF THE PARTIES The Applicant’s Position 9 The PUB takes the position that the issue to be determined is one of statutory

interpretation, being whether s. 26 of The CCAA (see Appendix

A) gives it the jurisdiction to require the MPIC to disclose a wide range of information and documents that relate to the non-basic lines of business. It argues that the overarching principle governing this determination is the “modern approach” to statutory

interpretation (see ATCO Gas and Pipelines Ltd. v . Alberta (Energy and Utilities Board) , 2006 SCC 4 at para. 37 , [2006] 1 S.C.R. 140 ), and that the provision is to be given a “fair, large and liberal

interpretation” in accordance with s. 6 of The

Interpretation Act , C.C.S.M., c. I80. 10 According to the PUB, it has express jurisdiction to compel this disclosure, based on the ordinary meaning of its enabling legislation and, in particular, s. 26(4)(a)(ix) of The CCAA , which, it argues, authorizes it, in its sole discretion, to determine which factors are relevant to its rate review function.

It argues that the information is relevant due to the interconnectedness of the operations of the basic and non-basic lines of business, such that it cannot carry out its mandate to review the rates for basic insurance without also reviewing the finances of the non-basic lines of business.

It also argues that information regarding the non-basic lines of business is a component of the MPIC’s overall financial situation, and that it has an obligation to take that overall situation into account when setting rates for basic insurance. 11 The PUB argues that it also has implied jurisdiction to compel the production of the information, which arises by “necessary implication” – that is, the principle that, if the Legislature gives an administrative body the power to do something, it also assumes that the ancillary powers that are required to perform the task have also been granted.

The scope of this implicit jurisdiction is determined by looking at the purpose and scheme of the legislation, the legislative intent and the relevant legal norms.

12 Finally, it takes the position that the MPIC has provided financial information regarding the non-basic lines of business in thepast, and that its refusal to continue to do so is not supported by the MPIC’s assertions that that information is not “germane” to thePUB’s review function. 13 In conclusion, the PUB argues that it needs the disputed information to discharge its function under s. 26 of The CCAA, beingto safeguard the public interest by holding the MPIC accountable for basic compulsory insurance rates and for ensuring the financialhealth of the MPIC.

It takes the position that it, and not the MPIC, has the legislative authority to decide what information is relevant tothe rate review. It argues that, having made that decision, the MPIC should comply. The Interveners’ Positions 14 The interveners essentially echo the position taken by the PUB, being that it has express jurisdiction or authority to compelthe production of information about the non-basic lines of business. They point out that, for example, in s. 26(4)(

a) of The CCAA, thePUB is permitted to consider a range of financial information about the “corporation,” which, in this case, is the MPIC. They argue thatthe reference is to the MPIC as a whole, not to any unnamed, unspecified division of the MPIC. 15 The interveners argue that the PUB’s purpose, as set out in s. 77(

a) of The PUB Act (see Appendix A), is to ensure just andreasonable rates. They also argue that, according to the decisions of this court (see Centra Gas Manitoba Inc. v. Manitoba (PublicUtilities Board), (MB CA), [1997] 6 W.W.R. 301 (in chambers), and Consumers’ Association of Canada (Manitoba)Inc. et al. v. Manitoba Hydro, 2005 MBCA 55, 195 Man.R. (2d) 12 (in chambers)), the underlying legislative purpose of the PUB is theprotection of the public, which is made up of the interests of the ratepayers and the financial health of the MPIC.

They argue that, tocarry out this mandate, the PUB must be able to ensure no cross-subsidization of the non-basic lines of business by basic insurance, toensure that the actual and projected costs incurred on a corporate-wide basis and attributed in whole or part to basic are necessary andprudent and to assess the reasonable revenue needs of basic insurance, giving due consideration to the overall health of the MPIC. 16 Finally, the interveners take the position that limiting the PUB’s authority to compel disclosure to that information that itreasonably concludes may be relevant to determining just and reasonable rates for basic insurance gives content to the “relevance”requirement in ss. 26(4)(a)(viii) and (ix) of The CCAA.

The Respondent’s Position 17 The MPIC agrees with the other parties regarding the principles of statutory

interpretation. It argues, however, that therelevant statutory scheme and a determination of the statutory intent are not limited to a consideration of The CCAA and The PUB Act,but must also take into account The Manitoba Public Insurance Corporation Act, C.C.S.M., c. P215 (The MPIC Act). It points out that,pursuant to The MPIC Act, the government has retained extensive control over the MPIC, including controlling the appointment of theMPIC’s senior management and its operations.

Much of this control is exercised by way of government regulation and decisions canonly be changed by way of further government regulation. This control includes the requirement that the MPIC must submit, to thegovernment, a report of its operations for the preceding year, together with a financial statement showing the assets and liabilities at theend of the year and the operations for that year in such form as may be required by the Minister of Finance.

These are reviewedannually, in public, by a standing committee of the Legislature. 18 The MPIC argues that the PUB’s perception of its jurisdiction suggests that the Manitoba Legislature has displaced the roleof the government in overseeing the MPIC with the PUB and, in so doing, provided it with an unchecked and unlimited scope of review.

It argues that this expanded jurisdiction is inconsistent with the checks and balances vested in other entities pursuant to The MPIC Actand The CCAA, both of which provide that the Government of Manitoba retains ultimate responsibility for the MPIC’s financial well-being and for the insurance plans and programs that the MPIC operates.

It argues that, within this scheme, it is the Manitobagovernment and not the PUB that is principally responsible for protecting the public interest, and that the PUB’s role is limited toreviewing and approving the MPIC’s rates for basic insurance only. 19 The MPIC argues that, consistent with the PUB’s limited role, the PUB does not have unlimited authority to determine itsown jurisdiction, but rather that the factors that it can consider under s. 26(4)(a)(ix) of The CCAA are limited to those factors that thePUB considers relevant to “the matter” – “the matter” being the approval of the rates and premiums for basic insurance that are proposedannually by the MPIC. 20 The MPIC has argued that the PUB cannot expand its jurisdiction by making declarations of relevance; rather, thejurisdiction provided by the legislation provides the “box” within which determinations of relevance must fit. 21 Looking at the wide and unlimited range of information being sought, the MPIC takes the position that what the PUB isseeking is a pre-emptive order determining, in advance of any hearing on the MPIC’s proposed rates, that a wide range of informationabout the non-basic lines of business and plans will be relevant to the assessment of basic rates, on the basis that the PUB protects thepublic interest.

The MPIC points out that there is no provision that either expressly or implicitly gives the PUB an unqualified right toinformation regarding non-basic lines of business, and argues that to grant this pre-emptive right would drastically expand the PUB’sjurisdiction and upset the distribution of responsibility within the statutory scheme, permitting the PUB to second-guess the governmenton the adequacy of the non-basic rates and its future plans for the MPIC. 22 The MPIC argues that the PUB’s concerns about the “links” between the basic and non-basic lines of business have all beenaddressed, in that: the MPIC’s board and management are all accountable to the Government of Manitoba; the MPIC discloses financialinformation about its overall operation in its annual reports; the MPIC’s investment funds are managed by the Department of Finance;the MPIC has adopted new allocation methodologies for shared and joint costs and for assets and liabilities which have, or will be,approved by the PUB; and the MPIC is no longer making transfers from non-basic lines of business to the rate stabilization reserve.

23 The MPIC argues that, when financial information regarding an aspect of the non-basic lines of business was relevant to aspecific issue, such as when it transferred excess retained earnings from the non-basic lines of business to the rate stabilization reserve inthe years 2005 and 2006, the required financial information about the non-basic lines of business was provided to support that decision. It takes the position that the PUB has not pointed to any specific purpose for requesting the information, and that to grant the declarationwithout any specific purpose is without jurisdiction and unnecessary. V.

PROCEEDINGS BY WAY OF STATED CASE 24 This matter having come before us by way of stated case, it is important to consider the nature of that procedure.

Section 58.4(1) of The PUB Act, which permits the PUB to state a case for the opinion of the Court of Appeal, states as follows: Reference to Court of Appeal 58.4(1) The board may, of its own motion or on the application of any party to proceedings before the board, state a case in writingfor the opinion of the Court of Appeal upon any question of law or jurisdiction. 25 This legislation was considered by this court in Public Utilities Board (Man.) v. Manitoba Hydro et al. (1989), (MB CA), 61 Man.R. (2d) 164.

In that case, the issue in the stated case had not been put to the PUB first for its decision, but thePUB agreed to seek a ruling by way of stated case. The PUB then heard and determined the rate application before it without referenceto the issues that were stated to this court. The majority found that the legislation did not give the PUB the jurisdiction that theinterveners contended it had.

Twaddle J.A., in a dissenting decision, considered the nature of a stated case, which he found to be asfollows (at paras. 19-20): In my opinion, the statutory power to state a case is limited to stating a case on an issue which actually arises before the Boardand which must be decided in order that a decision can be made. Otherwise, the Board may ask the Court’s opinion on a matter which isnot based on a real factual situation, but on assumptions or on speculation. Moreover, the question must be sufficiently specific that theone answer covers all possible factual situations that may arise.

Abstract questions, interesting as they may be, should not be answeredby a court. The Board, in the matter before us, has anticipated an issue as to its jurisdiction. Although in a general way, I am inclined to theview expressed by my Lord, I am not prepared to say whether the Board lacks jurisdiction, in every possible circumstance, to disapprovea future project of Hydro by disallowing a current expense item. Nor am I prepared to say, on the material before us, whether the Boardmay review Hydro’s plans for the future, but not indicate, in a rate adjustment, that it rejects a particular plan.

It would be speculation onmy part to foresee how that issue might arise and what I then might find the jurisdiction to be. 26 The nature of a stated case was also considered by the Saskatchewan Court of Appeal in Owners-Condominium Plan71R21528 et al. v. Regina (City) (1992), (SK CA), 100 Sask.R. 73. Cameron J.A., for the court, stated as follows (atpara. 7): There seems to be a failure here to understand what it means to state a case for the decision of the Court on a question of law orjurisdiction. To state a case means to set out (

i) the issues and how they arose; (ii) the facts as taken or found by the Board; (iii) the lawrelied upon [by] the Board; (iv) the rulings or decisions it made; and (

v) the questions of law or jurisdiction to which the decisions orrulings gave rise. In short it is the Board’s understanding of the law and its application of the law to the facts of the case that gives risein proceedings of this sort to questions of the kind we are empowered to pass upon, questions limited to those of law only, includingjurisdiction. 27 Steel J.A., of this court, also commented (in obiter remarks) on the nature of a stated case in Anderson et al. v. Manitoba etal., 2009 MBCA 129, 251 Man.R. (2d) 82 (in chambers) (at para. 27): ….

The stated case is to be presented by the arbitrator to the Court of Appeal based only on questions of law or jurisdiction andshe is entitled to determine those questions of law. It is her right to state the case, after hearing argument from all the parties. …. [emphasis added] 28 Courts have refused to render a decision on a stated case where the questions are speculative, hypothetical or where there isnot a sufficient factual foundation to do so. See, for example: R.H. v.

Family and Children’s Services of Lunenburg County, M.A.H.,G.B. and Nova Scotia (Minister of Social Services) (1982), (NS CA), 51 N.S.R. (2d) 447 (S.C. (A.D.)) at para. 11,and Manitoba et al. v. Cross Lake First Nation et al. (1999), (MB CA), 134 Man.R. (2d) 226 at para. 20 (C.A.). VI. ANALYSIS Basis of the Question in the Stated Case 29 This matter has proceeded as a stated case, but the parties have not followed the above-noted procedure for stating a case.

While facts and numerous documents have been put before this court by all parties, the PUB has not, itself, heard any argument on theissue of its jurisdiction to require the MPIC to produce the disputed material or made any findings of fact or rulings in that regard. ThePUB and the interveners have taken the position that, due to the nature of the annual rate hearings, it is not expedient to follow thatprocedure, so they have asked this court to hear and determine this matter as it has been presented. This ignores the fact that it is

preferable that factual findings and rulings of the tribunal form the basis of the stated case. 30 Further, the PUB has not asked this court to rule on its jurisdiction to require the production of specific documents or information; rather, it has asked for confirmation that it has the jurisdiction to demand a wide range of non-specified documents and information from the MPIC relating to the non-basic categories of business over which it has no jurisdiction to regulate rates. It says that it needs this information to carry out its function under s. 26 of The CCAA .

This, it says, includes safeguarding the public interest, which, it argues, has two components: the first, being to hold the MPIC accountable for its rates and to protect the consumers purchasing compulsory insurance from unreasonable rates; and the second, being to ensure the financial health of the MPIC. Jurisdiction of the PUB 31 The mandate of the PUB, in the context of this case, is set out in s. 26 of The CCAA , that being to review and approve the MPIC’s rate bases and premiums charged with respect to compulsory driver and vehicle insurance.

As can be seen from its annual orders, the PUB has expressed dissatisfaction with three aspects of its mandate: - from the beginning of its oversight of the MPIC, the PUB has expressed dissatisfaction with its limited jurisdiction and has been looking both to obtain information related to the non-basic lines of business and to expand its jurisdiction to include the review of rates for non-basic lines of business; - the PUB has taken the position that driver and vehicle licensing should have been included with the basic line of business, rather than the non-basic, and for many years has been recommending that it be moved so that it will be subject to review by the PUB; and - the PUB has expressed dissatisfaction with the fact that it has not been involved in the planning for significant changes to the MPIC’s operations affecting both the basic and non-basic lines of business, but rather has only received disclosure at the subsequent general rate application. 32 Notwithstanding the fact that the PUB has made its concerns known to the government on an annual basis since 1989, the government has not made any changes to the PUB’s legislated mandate to expand its jurisdiction.

Clearly, the government must be aware of the PUB’s concerns and, notwithstanding, is either satisfied with the PUB’s existing limited mandate or, at least to date, has chosen not to act on those concerns. 33 While all parties agree that its mandate, as set out in s. 26, must be interpreted in accordance with the scheme of the legislation, the PUB has looked at only two statutes, being The PUB Act and The CCAA .

In fact, that scheme also includes The MPIC Act , which legislates additional significant controls by the government over the activities of the MPIC. 34 Under the legislative scheme, the Crown Corporations Council has the mandate to review all long-term plans and to receive and review the annual financial statements for the MPIC’s entire business, which would include both basic insurance and the non-basic lines of business.

The government receives financial disclosure of the MPIC’s entire operation, including both basic and non-basic lines of business, which includes an annual report of its operations and the annual audited financial statements, all of which are subject to public review by a committee of the Legislature. The government has the ultimate authority to approve and enact all rates for both basic insurance and the non-basic lines of business, subject to the proviso that it cannot approve rates for basic insurance that have not been approved by the PUB.

It, therefore, has the ultimate responsibility for the financial health of the MPIC. It is within this legislative scheme that the PUB’s mandate to review the rates for only basic insurance must be interpreted. Cross-Subsidization 35 On the issue of protecting the consumers of basic insurance and holding the MPIC accountable for their insurance rates, the PUB and the interveners have expressed a concern about the possibility of cross-subsidization; that is, the improper allocation of costs, assets and liabilities between lines of business such that one line is used to subsidize another.

This is a valid concern in the case of the MPIC because there are services that are shared among the lines of business and some income and expenditures are incurred for the benefit of more than one line of business and must be allocated between them.

The interveners have argued that the PUB requires detailed financial information about the non-basic line of business to ensure that there is no cross-subsidization between basic insurance and the non-basic lines of business. 36 To address this concern, and in compliance with the PUB’s Order 150/07, the MPIC retained the accounting firm of Deloitte & Touche (Deloitte) to conduct a study to review the cost allocation methodology then being used to allocate costs between the lines of business and to provide recommendations to update it.

The Deloitte cost allocation methodology was reviewed and approved by the MPIC’s auditors, KPMG, and accepted by the MPIC’s board of directors for implementation in 2011. Implementation is subject to the acceptance of the report by the PUB, which is confirmed in the PUB’s report dated December 31, 2010. In Order 161/09, the PUB required the MPIC to obtain an asset and liability allocation methodology, which was also undertaken by Deloitte.

That report has been completed and is awaiting final confirmation by the PUB. 37 These methodologies, once completed and adopted, will ensure that costs, assets and liabilities are properly allocated between the various lines of business to prevent cross-subsidization both between lines of business and between basic insurance and the non-basic lines of business. 38 In preparing the cost, asset and liability allocation methodologies, the accountants had access to all of the MPIC’s financial information for both basic insurance and the non-basic lines of business.

Likewise, in reviewing the proposed allocation methodologies, the PUB had access to that same financial information, so that it could be satisfied that the methodologies were both appropriate and fair before accepting the reports. Ensuring the Financial Health of the MPIC 39 Another concern expressed by the PUB was the need for information about the non-basic lines of business to carry out its

role in ensuring the fiscal health of the MPIC. The PUB takes the position that, in order to ensure the financial health of the MPIC, it must be able to review the costs and revenues related to all lines of business, both basic and non-basic.

When considering the importance of the information that is being sought, one can look at the information that is currently available to the PUB and the significance of the non-basic lines of business to the MPIC’s overall operation. 40 At present, the PUB has access to the following information: - complete disclosure of all information related to basic insurance, whether it relates to items that are allocated exclusively to basic or are shared between basic and non-basic – the only information being withheld relates to items that have been allocated exclusively to non-basic and, therefore, have no effect on the basic line of business; - the MPIC’s annual report, which includes information related to both basic insurance and the non-basic lines of business and which shows the overall financial health of the MPIC, and the annual financial statements, once they have been made public and reviewed by the legislative committee; and - access to the transcripts of the public hearings before the standing committee on Crown Corporations, which is mandated to review all aspects of the MPIC’s operations, including both basic insurance and the non-basic lines of business, as well as all long-term plans and capital expenditures. 41 Further, the MPIC will provide the PUB with any information regarding the non-basic lines of business that has been made public. 42 While, in monetary terms, the non-basic lines of business are not insignificant, the evidence is that basic insurance accounts for approximately 85 per cent of the MPIC’s revenues, and the PUB has complete access to all financial information regarding that aspect of the business.

Based on the information that was provided to this court, the question must be asked whether the inability to access detailed information that affects only the non-basic lines of business, which account for only 15 per cent of the revenue, would result in the PUB being unable to assess the financial health of the corporation. 43 As regards the failure to advise the PUB of any plans, plans do not affect the rates that are subject to review in a particular year.

While plans, if implemented, may well affect the rates for basic insurance in future years, those rates will be subject to review by the PUB if and when the plans are realized and put into effect. Until then, the mandate to review and comment on long-term plans has been left to the Crown Corporations Council and the government, and the PUB has not demonstrated how they are relevant to, or affect, its ability to carry out its mandate in any particular year.

The fact is that the government has the right to change legislation and to require that the MPIC make changes to its business, and neither the government nor the MPIC are required to give the PUB any advance notice. This is an issue for the government and not the PUB. 44 It should be noted that the MPIC has, in the past, provided the PUB with information regarding the non-basic lines of business when it was relevant to a specific issue being decided by the PUB.

For example, in the years 2005 and 2006, the MPIC allocated money from the non-basic lines of business to the rate stabilization reserve for basic insurance and, to support that decision, it provided the PUB with financial projections and other information for the non-basic lines of business to confirm that the decision was financially solid. It also provided financial information regarding the non-basic lines of business to the PUB to support the new allocation methodologies developed by Deloitte and submitted to the PUB for its approval.

Conclusion 45 The question stated by the PUB in this case does not relate to specific documents or information in the context of a specific rate application, but rather asks this court to declare that it, effectively, has carte blanche to obtain any information from the MPIC related to the non-basic lines of business that it decides it needs.

For the reasons set out above, the case before us raises serious questions as to the need for the PUB to have unfettered access to documents and information that, on the face, appear to be irrelevant to its limited mandate. 46 The description of the documents and information is so wide and so general that it is impossible to determine exactly what types of documents and information could potentially be included.

It would be incorrect to answer the question on the stated case in the negative because there are clearly occasions when information and/or documents related exclusively to the non-basic lines of business should be disclosed, as has occurred in the past.

It would also be incorrect to answer the question in the positive, because it would be engaging in speculation on my part to attempt to foresee what information and/or documents might be requested in the future for what purpose and what this court might find the jurisdiction to be. 47 On the issue of the appropriate procedure for stating a case, the preferable course would be to have a question in the stated case that is based on an issue that actually arises before the PUB in a specific hearing, such that it raises a discrete question that is specific to a particular issue related to a real factual situation that has been presented or will be presented.

The court must be provided with the necessary context to permit it to provide the answer to the question put before it. The court will not entertain or answer a stated case where the question is abstract, hypothetical, speculative, or overly broad. 48 On the issue of disclosure, the PUB has, in the past, asked that the MPIC provide specific information and/or documentation regarding the non-basic lines of business for a specific rate hearing.

When the MPIC refused on the basis that the information was not relevant, the PUB did not take steps to require that disclosure; rather, it proceeded with each rate hearing without that information. In fact, the PUB has authority to require that the MPIC disclose specific information in relation to a specific rate application. I note, for example, the authority found in ss. 24(4) and 27(2)(

c) of The PUB Act and s. 12 of the Rules of Practice and Procedure of the PUB (see Appendix A). The PUB could exercise that authority to order the disclosure of specific information and/or documentation and then the MPIC would be obligated to respond. If there is no resolution and further proceedings are appropriate, there will be a factual background and an order or decision from the PUB upon which a court can make a decision. VII. DECISION

49 For these reasons, I have concluded that the question asked by the PUB in this stated case is too speculative to be answered, so I would decline to answer it. The questions asked by the MPIC are, likewise, speculative and involve abstract issues, and I would decline to answer them as well. 50 In the circumstances, there will be no order for costs. __________________________ J.A. I agree: _______________________ C.J.M. I agree: __________________________ J.A. APPENDIX A THE CROWN CORPORATIONS PUBLIC REVIEW AND ACCOUNTABILITY ACT, C.C.S.M., c. C336

PART IV PUBLIC UTILITIES BOARD REVIEW OF RATES Hydro and MPIC rates review 26(1) Notwithstanding any other Act or law, rates for services provided by Manitoba Hydro and the Manitoba Public Insurance Corporation shall be reviewed by The Public Utilities Board under The Public Utilities Board Act and no change in rates for services shall be made and no new rates for services shall be introduced without the approval of The Public Utilities Board. Definition, “rates for services” 26(2) For the purposes of this Part, “rates for services” means (

a) repealed, S.M. 1995, c. 33, s. 5 ; (

b) in the case of Manitoba Hydro , prices charged by that corporation with respect to the provision of power as defined in The Manitoba Hydro Act ; (

c) in the case of the Manitoba Public Insurance Corporation, rate bases and premiums charged with respect to compulsory driver and vehicle insurance provided by that corporation. Application of Public Utilities Board Act

26(3) The Public Utilities Board Act applies with any necessary changes to a review pursuant to this Part of rates for services. Factors to be considered, hearings 26(4) In reaching a decision pursuant to this Part, The Public Utilities Board may (

a) take into consideration (

i) the amount required to provide sufficient moneys to cover operating, maintenance and administration expenses of the corporation, (ii) interest and expenses on debt incurred for the purposes of the corporation by the government, (iii) interest on debt incurred by the corporation, (iv) reserves for replacement, renewal and obsolescence of works of the corporation, (

v) any other reserves that are necessary for the maintenance, operation, and replacement of works of the corporation, (vi) liabilities of the corporation for pension benefits and other employee benefit programs, (vii) any other payments that are required to be made out of the revenue of the corporation, (viii) any compelling policy considerations that the board considers relevant to the matter, (ix) any other factors that the board considers relevant to the matter; … . . . . .

MPIC 26(5) In the case of a review pursuant to this Part of rates for services of the Manitoba Public Insurance Corporation, The Public Utilities Board may take into consideration, in addition to factors described in subsection (4), all elements of insurance coverage affecting insurance rates. THE PUBLIC UTILITIES BOARD ACT , C.C.S.M., c.

P280 Board to have powers of Court of Queen’s Bench in certain matters 24(4) The board, except as herein otherwise provided, as respects the attendance and examination of witnesses, the amendment of proceedings, the production and inspection of documents, the enforcement of its orders, the payment of costs, and all other matters necessary or proper for the due exercise of its powers, or otherwise for carrying any of its powers into effect, has all such powers, rights,

and privileges as are vested in the Court of Queen’s Bench or a judge thereof. Power to inspect, examine witnesses, documents, etc. 27(2) The board, or any person authorized by the board to make inquiry or report, may, where it appears expedient, (

a) enter upon and inspect any place, building, works or other property; (

b) require the attendance of all such persons as it or he thinks fit to summon and examine and take the testimony of the persons; (

c) require the production of all books, plans, specifications, drawings and documents; (

d) administer oaths, affirmations, or declarations, and summon witnesses, enforce their attendance, and compel them to give evidence and produce the books, plans, specifications, drawings, and documents, which it or he may require them to produce. Orders as to utilities 77 The board may, by order in writing after notice to, and hearing of, the parties interested, (

a) fix just and reasonable individual rates, joint rates, tolls, charges, or schedules thereof, as well as commutation, mileage, and other special rates that shall be imposed, observed, and followed thereafter, by any owner of a public utility wherever the board determines that any existing individual rate, joint rate, [t]oll, charge or

schedule thereof or commutation, mileage, or other special rate is unjust, unreasonable, insufficient, or unjustly discriminatory or preferential; . . . . . THE PUBLIC UTILITIES BOARD RULES OF PRACTICE AND PROCEDURE Production of Documents 12.

(1) Where, in an application, intervention, motion or response to an information request, a party refers to a document which the party intends to rely on in the proceeding, that party shall attach a copy of that document to its evidence.

(2) The Board, on its own initiative or upon motion by any party may order any person or party in a proceeding to produce any document relating to the proceeding.

(3) Any party who fails to comply with an order pursuant to subsection (2) shall be deemed to be in breach of the said order.