Case information

Administrative law — Boards and tribunals — Jurisdiction — Public Utility Board — Appeals — Standard of review — Board ordered Manitoba Hydro to create First Nations On Reserve Residential customer class — First Nations On Reserve Residential customer class to receive zero per cent rate increase — How and when appellate courts should apply the standard of palpable and overriding error in light of (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and in the context of a statutory right of appeal from the decision of a highly specialized administrative decision-maker — What constitutes just and reasonable rates and, by implication, classifications, in the context of providing an essential service, in light of the constitutional principle of reconciliation and the Charter value of equality — Whether the Court of Appeal erred in law by failing to apply the standard of palpable and overriding error when determining whether directive falls within the Board’s jurisdiction — Whether the Court of Appeal erred in interpreting the Board’s jurisdiction — How ss. 39(2.2) and 43(3) of the Manitoba Hydro Act, CCSM c. P190, inform the Board’s jurisdiction to fix just and reasonable rates, and, by implication, classifications.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Manitoba Hydro Electric Board sought a 7.9 percent increase to all components of the rates for all customer classes, effective April 1, 2018. A majority of the Board instead ordered a 3.6 percent average revenue increase. However, in Directive 6 of Order No. 59/18, the Board ordered Manitoba Hydro to create a First Nations On Reserve Residential customer class that was to receive a zero percent increase. Manitoba Hydro was granted leave to appeal to address whether it had jurisdiction to direct the creation of a First Nations On Reserve Residential customer class. Meanwhile, the Board approved the resulting Residential Rates Schedule in Order No. 86/16. Manitoba Hydro applied for review and to vary Orders No. 59/18 and 68/18, including the directive. In Order No. 90/18, the Board denied the application to vary the directive. As such, Orders No. 68/18 and 90/18 were also subject to the appeal to the extent that they reflected the directive contained in Order No. 59/18.

The Court of Appeal allowed the appeal, finding that Directive 6 constituted the creation and implementation of general social policy, which was outside the jurisdiction of the Board and encroached on the competence of the federal and provincial governments. It also breached the Manitoba Hydro Act, CCSM c. P190, s. 39(2.2), which says that customers are not to be classified solely based on the region of the province in which they live or the density of the population.

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