Background
The City of Surrey planned to expand 72nd Avenue, requiring substantial modifications to BC Hydro’s existing high-voltage transmission facilities. After negotiations failed, Surrey sued BC Hydro in trespass, while BC Hydro asked the British Columbia Utilities Commission to set the terms on which it could continue using the highway dedication. The Commission concluded that BC Hydro’s deemed certificate of public convenience and necessity under s. 45(2) of the Utilities Commission Act satisfied the prerequisite in s. 32(1)(a) that the utility have a right to enter the municipality and place its equipment.
The Commission imposed terms requiring Surrey to bear the multimillion-dollar cost of relocating the facilities, estimated by Surrey at approximately $41 million. A Court of Appeal chambers judge denied Surrey leave to appeal, finding none of its three proposed grounds arguable. Surrey then applied under s. 29 of the Court of Appeal Act to vary that order and narrowed its proposed appeal to whether a deemed certificate under s. 45(2) provides the right required by s. 32(1)(a).
The Court’s Holding
The Court granted Surrey’s application to vary and allowed an appeal on that single statutory-interpretation issue. It held that the chambers judge erred by treating the issue as having no merit and summarily deciding it himself. Neither Coquitlam (City) v British Columbia (Utilities Commission) nor City of Richmond v British Columbia (Utilities Commission) had directly decided whether a deemed certificate under s. 45(2) gives a utility the right to enter municipal land and place equipment for purposes of s. 32(1)(a).
The Court described Surrey’s proposed argument as weak but nevertheless arguable because it concerns the interaction of two provisions within a complex statutory scheme that had not been directly judicially considered. After reassessing the statutory-leave factors, the Court found that the potential general importance of the narrow legal issue and the substantial financial stakes for Surrey justified leave. It refused leave on Surrey’s other grounds and declined to entertain its newly raised argument that transmission facilities are not “distribution equipment” under s. 32(1).
Key Takeaways
- A chambers judge considering statutory leave should not finally resolve an arguable appeal; merits are one factor in the broader leave analysis.
- An appeal may warrant leave even when its prospects appear weak if it raises an unresolved legal question of potential general importance and carries substantial consequences for the applicant.
- Surrey may appeal only whether BC Hydro’s deemed certificate under s. 45(2) supplies the right required by s. 32(1)(a); the Court did not decide that question on its merits.
Why It Matters
The eventual appeal may clarify how deemed certificates of public convenience and necessity interact with the Utilities Commission Act’s provisions governing utility access to municipal streets and other public places. That interpretation could affect responsibility for major infrastructure-relocation costs when municipal projects conflict with pre-existing utility facilities.