B.C.S.C. Stays Potential Class Action Against BC Hydro

On April 5, 2002, in Owners, Strata Plan LMS 1816 v. BC Hydro and Power Authority, 2002 BCSC 485, the British Columbia Supreme Court granted the application of BC Hydro that an intended multi-million dollar class action brought against the utility be stayed in the basis that the court either lacked, or ought to decline, jurisdiction to hear the action.

The plaintiff, a residential strata corporation, on behalf of itself and other residential strata corporations, had sued BC Hydro for breach of contract, breach of fiduciary duties, and breach of duties of good faith. The plaintiff alleged that BC Hydro had overcharged it and other residential condominiums for electricity used in the common use areas of their buildings by charging rates that did not comply with BC Hydro’s tariff under the Utilities Commission Act and by refusing to issue refunds of the alleged overcharges. The plaintiff sought in its Statement of Claim to recover overcharges from 1978 to the present.

The court declined to hear the plaintiff’s action on the basis that the matter was one that had previously been addressed by the BC Utilities Commission, the regulatory body that the legislature had determined was best qualified to hear it. The court found that the Utilities Commission had considered the essential issues raised in the plaintiff’s action in number of inquiries conducted and decisions rendered in the 1990s. These included the resolution by the Utilities Commission of a specific complaint in 1995 by another strata corporation, which had raised essentially the same issues as those raised by the plaintiff.

Mr. Justice Macaulay held that, “when the BCUC exercises its interpretive jurisdiction, as I find it has done here, that exercise ought to be viewed as exclusive with respect to the essential character of the matter in dispute.” On that basis, the court granted BC Hydro’s application and ordered that the intended class action be stayed.

The plaintiff filed an appeal from the judgment of Mr. Justice Macaulay, which has been subsequently abandoned.

Chris W. Sanderson, Q.C., Rodney L. Hayley, and Marko Vesely of Lawson Lundell in Vancouver represented BC Hydro. Kieran AG. Bridge and Brian M. Samuels, both in Vancouver, represented the plaintiff, the Owners of Strata Plan LMS 1816.