COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Collins v. British Columbia Utilities Commission,

 

2012 BCCA 455

Date: 20121113

Docket: CA039834

Between:

Andrea Collins and The Citizens For Safe Technology Society

Appellants
(Applicants)

And

British Columbia Utilities Commission and British Columbia Hydro and Power Authority

Respondents

Before:

The Honourable Mr. Justice Chiasson

(In Chambers)

On appeal from:  British Columbia Utilities Commission,
March 5, 2012 (L-13-12) and June 22, 2012 (G-87-12)

Counsel for the Appellant:

D.M. Aaron

Counsel for the Respondent,
B.C. Utilities Commission:

G.A. Fulton, Q.C.

Counsel for the Respondent,
B.C. Hydro and Power Authority

M.S. Jones

Place and Date of Hearing:

Vancouver, British Columbia

October 18, 2012

Place and Date of Judgment:

Vancouver, British Columbia

November 13, 2012


 

Reasons for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]             Andrea Collins and the Citizens for Safe Technology Society (the “applicants”) apply for leave to appeal from two decisions of the respondent British Columbia Utilities Commission (“BCUC”).  The BCUC dismissed the applicants’ complaint under s. 47 of the Utilities Commission Act, R.S.B.C. 1996, c. 473 [the UCA] against the respondent British Columbia Hydro and Power Authority (“BC Hydro”).  The applicants alleged that BC Hydro was installing smart meters without a proper Certificate of Public Convenience and Necessity (“Certificate”) as required by the UCA.

Background

[2]             Smart meters are devices that are installed on or near facilities serviced with electrical power by a utility that collect and transmit data directly to the utility.  The data can be transmitted by cable or can be transmitted wirelessly using a micro-chip.  BC Hydro’s smart meters are wireless.  The appellants contend that this poses a health risk and is not authorized by an exemption contained in the Clean Energy Act, S.B.C. 2010, c. 22 [the CEA].

[3]             BC Hydro is an agent of the government that, inter alia, supplies electrical power to its customers’ premises.  The BCUC “has general supervision of all public utilities” including BC Hydro (s. 23 of the UCA).  Pursuant to s. 45 of the UCA, the construction or operation of a public utility plant or system requires a Certificate.  Smart meters are covered by the section.

[4]             Section 7(1)(j) of the CEA exempts BC Hydro from the need to obtain a Certificate under s. 45 of the UCA.  It states:

7  (1) The authority is exempt from sections 45 to 47 and 71 of the Utilities Commission Act to the extent applicable, and from any other sections of that Act that the minister may specify by regulation, with respect to the following projects, programs, contracts and expenditures of the authority, as they may be further described by regulation:

...

(j) the actions taken to comply with section 17 (2) and (3);

...

(2) The persons and their successors and assigns who enter into an energy supply contract with the authority related to anything referred to in subsection (1) are exempt from section 71 of the Utilities Commission Act with respect to the energy supply contract.

(3) The commission must not exercise a power under the Utilities Commission Act in a way that would directly or indirectly prevent the authority from doing anything referred to in subsection (1).

Sections 17(2) and (3) provide for the installation by BC Hydro of smart meters.  I reproduce s. 17(2):

Subject to subsection (3), the authority must install and put into operation smart meters and related equipment in accordance with and to the extent required by the regulations.

“Smart meter” is defined in s. 17(1) of the CEA, which states:

“smart meter” means a meter that meets the prescribed requirements, and includes related components, equipment and metering and communication infrastructure that meet the prescribed requirements.

[5]             The Smart Meters and Smart Grid Regulation describe the requirements for the smart meter program. Relevant provisions include the following:

2          For the purposes of the definition of "smart meter" in section 17 (1) of the Act, the prescribed requirements for a meter are that it is capable of doing all of the following:

...

(b) transmitting and receiving information in digital form;

...

3 (1)  Subject to subsection (3), by the end of the 2012 calendar year, the authority must install and put into operation

...

(b) all of the following related equipment:

(i)  communications infrastructure for transmitting information among smart meters and the computer hardware and software systems described in subparagraph (ii);

(ii)  secure computer hardware and software systems that enable the authority to do all of the following:

(A)  monitor, control and configure smart meters and the communications infrastructure referred to in subparagraph (i);

(B)  store, validate, analyze and use the information measured by and received from smart meters;

(C)  provide, through the internet, to a person who receives electricity from the authority secure access to information about the person's electricity consumption and generation, if any, measured by a smart meter;

(D)  establish a secure telecommunications link between in-home feedback devices and smart meters that are compatible with each other;

(E)  bill customers in accordance with rates that encourage the shift of the use of electricity from periods of higher demand to periods of lower demand;

(F)  integrate the systems with the authority's other business systems.

(2)  The communications infrastructure referred to in subsection (1) (b) (i) must include a telecommunications network that is capable of delivering two-way, digital, and secure communication.

[6]             The BCUC rejected the applicants’ contention that the smart meters being installed by BC Hydro were not covered by the exemption in s. 7 of the CEA.  The BCUC dismissed their application for a reconsideration of that decision.

[7]             Although the applicants seek leave to appeal from both decisions, at the hearing of the application, they agreed to pursue leave concerning the reconsideration decision only.

The BCUC reconsideration decision

[8]             Section 99 of the UCA provides for reconsiderations as follows:

The commission, on application or on its own motion, may reconsider a decision, an order, a rule or a regulation of the commission and may confirm, vary or rescind the decision, order, rule or regulation.

[9]             In its reconsideration decision, the BCUC described the process:

1.1 The Reconsideration Process

An application for reconsideration with the Commission proceeds in two phases. In the interest of regulatory efficiency and fairness, the application undergoes an initial screening phase. In this first phase, the Applicant must establish a prima facie case sufficient to warrant full reconsideration by the Commission. The Commission invites submissions from the other participants in the original proceeding, or it may consider that comments from the parties are not required. The Commission applies the following criteria to determine whether or not a reasonable basis exists for allowing reconsideration:

•           the Commission has made an error in fact or law;

•           there has been a fundamental change in circumstances or facts since the decision;

•           a basic principle had not been raised in the original proceedings; or

•           a new principle has arisen as a result of the decision.

Where an error is alleged to have been made the application must meet the following criteria to advance to the second phase of reconsideration:

•           the claim of error is substantiated on a prima facie basis; and

•           the error has significant material implications.

If the Commission determines that a full reconsideration is warranted, the second phase begins where the Commission hears arguments on the merits of the application.

[10]         The BCUC described the original decision, stating:

In making the decision to dismiss the Complaint, the Commission framed the question to be answered as:

“Do the wireless and domestic interface capabilities of the SMI fall outside the scope of the exemptions granted to BC Hydro under section 7 of the CEA, and therefore require a CPCN?”

This question raises two issues. The first issue relates to whether the wireless capabilities are outside the scope of the exemption and the second issue relates to whether the domestic interface capabilities are outside the scope of the exemption.

In the Decision, the Commission addressed the first issue as follows:

“In the absence of a specific stated requirement that the meters used to fulfill section 17 of the CEA be wired or wireless, the Commission concludes the legislature entrusted BC Hydro, as the technical expert, to determine the equipment needed to meet the requirements under the CEA and the Regulation.

The Commission finds that there is insufficient evidence to substantiate the Complainants’ argument that the legislature intended BC Hydro to use a specific type of equipment, wired or wireless to fulfill its obligations under section 17 of the CEA and to meet the prescribed requirements under section 2 of the Regulation.” (Decision, p. 4)

The Applicants do not request reconsideration of the Commission’s decision on the second issue and for that reason it is not discussed further in these reasons.

[11]         The BCUC restated the position of the applicants, which was, in essence, premised on:

... the assertion that the Legislature carved out a discrete and limited exemption to the requirement for a CPCN.  The scope of that exemption is delineated by the Regulation’s description of the exempt system by reference to its functionalities.  The Applicant’s submit that the wireless communication functionalities are not referenced in the Regulations and are therefore not within the scope of the exemption.

It continued:

The Applicants refine their argument further by presuming that all equipment and infrastructure necessary to achieve the prescribed functionalities are mandated by the CEA and exempted from the requirement for a CPCN. However, the Applicants submit that the wireless system is not necessary to achieve the functionalities prescribed by the Regulation and, as such, the wireless system is not within the scope of the exemption: it is an addon and therefore requires a CPCN.

The BCUC discussed further the positions of the parties before it turned to its own analysis.

[12]         After recapitulating the requirements for a reconsideration, the BCUC stated the points of agreement between the parties:

1.         The Commission correctly framed the question it had to answer;

2.         The question to be answered is a question of law;

3.         Evidence of legislative intent can be used to resolve statutory interpretation questions;

4.         The CEA exemption was meant to capture the smart meter system; and

5.         The Legislature and Cabinet knew, at all material times, that both hardwired and wireless options existed for the smart meter system.

I reproduce the reasoning of the BCUC on the substance of the issue:

The Commission agrees with BC Hydro that section 7 of the CEA was not intended to make exemptions on a functionality by functionality basis. The Commission also agrees that the wording of both the CEA and the Regulation plainly focus the exemption on the smart metering system, not the smart meters’ functionalities.

Section 7 of the CEA uses broad wording to describe the matters exempt from the requirements for a CPCN. The exempt matters include “programs…as they may be further described by regulation.” Section 7(1)(j) refers to “the actions taken to comply with section 17(2) and (3).” Section 17(2) requires BC Hydro to “install and put into operation smart meters and related equipment in accordance with and to the extent required by the regulations.” Section 17(3) requires it to complete those obligations by the end of the 2012 calendar year.

Section 17(1) of the CEA broadly defines “smart meter.” The definition of “smart meter” explicitly encompasses “related components, equipment and metering and communication infrastructure” and for that reason it is the Commission’s view it did not err in its reference to equipment needed to meet the requirements of the CEA and the Regulation.

In addition, the reference to related equipment within section 17(2) further supports the Commission’s view on this point.

Section 2 of the Regulation provides the prescribed requirements for a “smart meter.” Section 3 of the Regulation, in part, requires BC Hydro, subject to certain exceptions, to install and put into operation smart meters for eligible premises as defined by the Regulation and all the related equipment. The related equipment includes the communications infrastructure for transmitting information among smart meters and the computer hardware and software systems described in section 3(1)(b)(ii) of the Regulation. The related equipment also includes the secure computer hardware and software systems which enable BC Hydro to perform the activities in paragraph 3(1)(b)(ii)(A) to (F) of the Regulation. The Regulation does not refer to either wired or wireless communication.

The Commission concludes that the Legislature through the use of broad wording in sections 7 and 17 of the CEA did not intend to restrict the

exemption to the prescribed functionalities of the meter. Rather the exemption was intended to cover the overall smart metering system, including its installation and operation, provided it is capable of fulfilling certain functions.

The Commission shares BC Hydro’s view that neither the CEA nor the Regulation support the Applicants’ de minimus approach as neither wired nor wireless functionalities are stated in the CEA or the Regulation and because the definition of “smart meter” includes related components, equipment and metering and communications infrastructure.

The Commission does not accept the Applicants’ submission that the hardwired system applies by default because historically all of BC Hydro’s meter systems have been hardwired; neither the CEA nor the Regulation specify wireless or wired functionality, or equipment that meets the functionality of either. The parties to this matter expressly acknowledge that the Legislature was aware of both options at the time of enactment of the CEA. Due to the lack of specification either way, the Commission is of the view that the Legislature left the determination of the appropriate technology to be used in the implementation and operation of the smart meter program to BC Hydro.

The Commission agrees with BC Hydro that by defining “smart meter” as it did, the Legislature intended for the exemption to apply where the component, equipment and metering or communications infrastructure was (1) related to a meter that meets the prescribed requirements and (2) must be the prescribed requirement itself. In the Commission’s view such an interpretation is most consistent with the language used. The Commission also agrees with BC Hydro that wireless communication infrastructure is “related” to the proper functioning of a smart meter.

The Commission further agrees with BC Hydro that a smart meter system with wireless technology also meets the prescribed requirements under sections 2 and 3 of the Regulation, since it forms part of a communications infrastructure that transmits information among smart meters and the computer hardware and software systems and supports a secure software system that allows BC Hydro to undertake the activities listed in section 3(1)(b)(ii)(A) to (F) of the Regulation.

The Commission is also not persuaded that the absence of a specific provision in the CEA or Regulation for wireless capability, which the Applicants describe as an additional functionality not mandated by the Regulation, means the exemption in the CEA does not apply. In this regard, the Commission shares the view of BC Hydro concerning applications under section 45 of the UCA. Section 45 requires a CPCN for the construction or operation of a plant or system, or an extension of either. It does not require the Commission to address the specific functionalities of particular components of a plant or system. Rather, the whole of the proposed plant or system or extension of either is reviewed to determine if its operation or construction is in the public interest.

In their reply, the Applicants make submissions on certain of British Columbia’s energy objectives found in section 2 of the CEA. In particular they refer to those relating to the reduction of green house gas emissions and the use of clean and renewable resources for energy production. Section 46(3.3)(a) of the UCA requires the Commission to consider and be guided by British Columbia’s energy objectives, in deciding whether to issue a CPCN to BC Hydro. However the exemption of the smart meters program from sections 4547 of the UCA resulting from section 7 of the CEA precludes the Commission from considering and being guided by British Columbia’s energy objectives as they may relate to the smart meters program. The Commission’s conclusion that “the legislature entrusted BC Hydro, as the technical expert, to determine the equipment needed to meet the requirements under the CEA and the Regulation” means the Commission is without jurisdiction to consider any of British Columbia’s energy objectives in relation to that program.

Discussion

[13]         In United Steelworkers, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, Local 2009 v. Auyeung, 2011 BCCA 527, 345 D.L.R. (4th) 630, this Court held that where the Labour Board refuses leave to reconsider an original decision of the Board, judicial review should be limited to the reconsideration decision.  This conclusion was based on the specialized nature of the Board’s jurisdiction, the system for reconsideration mandated by the Legislature and the fact that reconsideration was a wholly satisfactory internal review process.

[14]         The BCUC is a specialized tribunal.  Its governing legislation provides for reconsiderations.  It does not require leave and does not provide criteria as does the Labour Relations Code, R.S.B.C. 1996, c. 244.  As noted, the BCUC has introduced a system akin to a requirement for leave in the Labour Code and has identified criteria.  As a matter of policy, it is difficult to see why this Court should approach BCUC decisions different from those of the Labour Board, but the matter has not been addressed substantively by the parties in this case.

[15]         As noted, the applicants were content to seek leave to appeal concerning the reconsideration decision only and the hearing proceeded on that basis.  In the circumstances of this case, it would make little sense to undertake a detailed review of the original decision.  The matter at issue is a question of law and was examined carefully by the BCUC on reconsideration.

[16]         Pursuant to s. 101 of the UCA, an appeal lies to this Court with leave of a Justice.  I turn to the requirements for leave to appeal from a statutory tribunal. In Queens Plate Development Ltd. v. Vancouver Assessor, Area 09 - Vancouver (1987), 16 B.C.L.R. (2d) 104 at 109-110, 22 C.P.C. (2d) 265, Mr. Justice Taggart (in Chambers) summarized the factors to be considered in deciding whether leave should be granted:

(a) whether the proposed appeal raises a question of general importance as to the extent of jurisdiction of the tribunal appealed from;

(b) whether the appeal is limited to questions of law involving:

(i) the application of statutory provisions ...;

(ii) statutory interpretation that was particularly important to the litigant ...; or

(iii) interpretation of standard wording which appears in many statutes …;

(c) whether there was a marked difference of opinion in the decisions below and sufficient merit in the issue put forward ...;

(d) whether there is some prospect of the appeal succeeding on its merits ... although there is no need for a justice before whom leave is argued to be convinced of the merits of the appeal, as long as there are substantial questions to be argued;

(e) whether there is any clear benefit to be derived from the appeal ... ;and

(f) whether the issue on appeal has been considered by a number of appellate bodies ....

[Case citations omitted.]

[17]         The Court may grant leave to appeal more readily if the hearing before the Court of Appeal is the “first and likely last review of the original decision”: British Columbia (Minister of Transportation and Highways) v. Reon Management Services Inc., 2000 BCCA 522, per Saunders J.A. (in Chambers) at para. 14.

[18]         The granting of leave is not automatic or based only on a determination that the appeal is not frivolous: Shaw v. British Columbia Hydro and Power Authority (1984), 57 B.C.L.R. 368 at 370-371, 46 C.P.C. 69, per Lambert J.A. (in Chambers). In that case, Mr. Justice Lambert stated at 370-371:

… the court, in granting leave ought surely to consider the reason why leave is required and should not make the granting of leave automatic, or confine the refusal of leave only to those cases where the appeal appears to be frivolous.

[19]         I begin by considering criteria (b), (c), (e) and (f) from Queens Plate.

[20]         In my view, the appeal is limited to questions of law involving “the application of statutory provisions” that are “particularly important to the” applicants and to BC Hydro.  It does not involve “standard wording which appears in many statutes”.  In terms of the question of law, personal subjective factors favour granting leave; general objective considerations do not.  The same can be said concerning any benefit to an appeal.  As submitted by the applicants, they will “benefit from a public hearing into the health and environmental impacts of the impugned devices”.  There is no marked difference in opinions in the decisions below.  The issues on appeal have not been considered by a number of appellate bodies.  These factors are neutral in this case.

[21]         The remaining Queens Plate factors in this case are interrelated. I shall accordingly consider them together.

[22]         The applicants submit that the standard of review on the appeal would be correctness because the issue involves the jurisdiction of the BCUC.  The BCUC interpreted the CEA, which is not its home statute, the provisions of which deal with the extent of the powers of the BCUC.  The respondents do not agree and assert that the standard of review is reasonableness.  The applicants contend that the fact there is disagreement on the applicable standard itself supports granting leave. 

[23]         In Telecommunications Workers Union v. Telus Communications Inc., 2010 BCCA 522, 295 B.C.A.C. 256, I stated at para. 27:

As to the second ground of appeal – the judge erred by failing to apply a standard of review of correctness to the question dealing with weighting seniority – I agree with the judge’s comment that courts must be cautious in categorizing issues as jurisdictional. She stated in para. 39:

In this case, the arbitrator was interpreting what the provisions of the Collective Agreement required Telus to take into consideration in its job posting procedures. In my view, he did not interpret the agreement in a way that amended its terms, and it is incorrect to characterize the alleged errors as jurisdictional. Such questions will be narrow. The Supreme Court of Canada has cautioned numerous times that reviewing judges “must not brand as jurisdictional issues that are doubtfully so”: per Dickson J. in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. This was reiterated in Dunsmuir at para. 59:

Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter…

[24]         I do not agree with the applicants’ characterization of the issue as jurisdictional.  The question is whether BC Hydro is exempt. This is a question of interpretation.  The BCUC is not in any way constrained from making that inquiry. 

[25]         The proposition that no deference should be afforded to the BCUC because it was interpreting the CEA, rather than the UCA, also is not tenable.  The Supreme Court of Canada addressed this point in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. After expressing some doubt as to the existence of “questions of true jurisdiction”, a majority of the Court stated at para. 34:

...the interpretation by a tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review.

(See also: Friends of Davie Bay v. Province of British Columbia, 2012 BCCA 293, 32 B.C.L.R. (5th) 278 at paras. 27-30.)

[26]         In my view, the CEA is a statute closely connected to the function of the BCUC. This becomes apparent through an examination of some of the provisions of the CEA. Section 7(1) deals specifically with exempting BC Hydro from certain provisions of the UCA in connection with listed projects, programs and contracts as described in regulations.  Section 7(3) states that the BCUC must not exercise a power under the UCA that would directly or indirectly prevent BC Hydro from doing anything referred to in s. 7(1).  Smart meters are dealt with in the regulations.  There are other provisions in the CEA directed specifically to the BCUC and the exercise of its mandate under the UCA.

[27]         It is clear that none of the other categories of questions that typically invite a correctness standard are present. This is not a constitutional question. It is not a question of law of central importance to the legal system as a whole outside of the BCUC’s expertise. There are no competing specialized tribunals and, as stated above, no “true questions of jurisdiction” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 57-62; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160 at para. 26).

[28]         In my view, it is clear that the standard of review applicable to the proposed appeal will be reasonableness.  The fact that the applicants advocate a different standard does not support granting leave to appeal.

[29]         This conclusion also disposes of the jurisdictional aspect of the first Queens Plate criterion, although the applicants assert that the BCUC erred in the last sentence of its decision, which I quoted above and I repeat for convenience:

The Commission’s conclusion that “the legislature entrusted BC Hydro, as the technical expert, to determine the equipment needed to meet the requirements under the CEA and the Regulation” means the Commission is without jurisdiction to consider any of British Columbia’s energy objectives in relation to that program.

I agree with the applicants that the statement is wrong, but I do not think it raises an issue of jurisdiction in the context of the standard of review.  I shall address it in the context of the merits of the proposed appeal.

[30]         In Queens Plate, this Court used the words “some prospect of the appeal succeeding on its merits” and “substantial questions to be argued”.  This aspect of the test for leave has been discussed in several cases.  The applicants rely on comments of Madam Justice Southin in Omineca Enterprises Ltd. v. British Columbia (Minister of Forests), 2000 BCCA 591, 91 B.C.L.R. (3d) 74 at para. 16:

To my mind, if a proposition is not wholly devoid of merit, it raises a substantial question to be argued.

[31]         In Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2008 BCCA 208, at para. 14, Madam Justice Levine (in Chambers) used the phrase “some prospect of success”.  Mr. Justice Frankel discussed the issue in Teck Cominco Metals Ltd. v. British Columbia, 2009 BCCA 3, 264 B.C.A.C. 164, (in Chambers) at paras. 20, 27:

[20]      In the present case the critical factor is whether the proposed appeal raises “substantial questions to be argued”.  In Omineca Enterprises, Madam Justice Southin opined that those words require that the grounds on which leave is being sought are “not wholly devoid of merit”:  para. 16.  More recently, in Joint Industry Electric Steering Committee v. British Columbia (Utilities Commission), 2005 BCCA 330, 42 B.C.L.R. (4th) 245, both Mr. Justice Hall (at para. 93), and Madam Justice Levine (at para. 99), opined that there is no substantial difference between “a substantial question to be argued” and “some prospect of the appeal succeeding on its merits”.  Appeals are taken against orders, not reasons for judgment:  Jiwan v. Davis & Co., 2008 BCCA 494 at para. 38.  Therefore, the question I must answer is whether there is some prospect that the Crown will be able to persuade a division of this Court to set aside the order of the chambers judge that allowed Teck Cominco’s appeal from the Minister’s decision.

...

[27]      A judge hearing a leave application serves a gatekeeper function; his or her task is to ensure that judicial resources are not expended on matters that do not merit the attention of a division of the Court.  One situation in which leave is not warranted is when there is no prospect that the order being challenged will be reversed on appeal.  This is such a case.

[32]         It is apparent to me that this Court equates “some prospect of success” with “a substantial question to be argued”.  I would not apply a test that limits the consideration to whether a proposed appeal is “not wholly devoid of merit”.  In my mind, that is not consistent with the gatekeeper function described by Frankel J.A.  It also is not consistent with the development of the reasonableness standard in the law of judicial review and the deference owed by courts to tribunals where the issue does not concern true jurisdiction, and particularly, where the issue involves the construction of a tribunal’s home statute or one closely related to its function.

[33]         With this background, I turn to the interpretative issue at the core of the proposed appeal. 

[34]         The position to be advanced by the applicants on the appeal is the same as was advanced before the BCUC:  smart meters are defined by functionality; data can be transmitted by cable.  Wireless transmission is not required and it is controversial, in that the applicants assert it creates or has the potential to create health and environmental hazards.

[35]         In my view, the BCUC’s interpretation of the CEA clearly was reasonable.  In fact, I consider it to be correct.  There is no language in the CEA or the regulation that differentiates wireless from cable transmission of data.  All that is required is the ability to transmit.  The respondents note that the legislators were aware that both methods of transmission were available.  Had they intended to limit the exemption to cable transmission, they could have done so.  The BCUC reviewed carefully the language of the legislation and the factual matrix surrounding it.  In my view, a division of this Court would be unlikely to interfere with the interpretation of the BCUC. 

[36]         I turn to the erroneous statement of the BCUC that it did “not have the jurisdiction to consider any of British Columbia’s energy objectives...”.  Clearly, the BCUC had the jurisdiction to do so, but I read the statement as stating nothing more than it was of no significance to consider the objectives; the plain language of the legislation did not require BC Hydro to apply for a Certificate because its smart meters were wireless.

[37]         In any event, had the BCUC considered the energy objectives of the province as stated in the CEA, as the applicants assert should have been done, little support for the position of the applicants would have been found.   While the legislation mainly is concerned with forms of energy, it is replete with statements illustrating government policy in support of smart meters.  An example is s. 17(6), which requires the BCUC to “consider the government’s goal of having smart meters ... with respect to customers other than those of [BC Hydro]” when considering applications by other authorities.

[38]         In my view, the applicants do not have “some prospect of success” and have not raised “a substantial question to be argued”.

Conclusion

[39]         I conclude that the applicants have not met the test for obtaining leave to appeal the reconsidered decision of the BCUC.  The application for leave to appeal is dismissed.

“The Honourable Mr. Justice Chiasson”