Court of Appeal

CASE NO.                                     VOL. NO.                                            PAGE

MUNICIPALITY OF THE COUNTY                                                 TOWN OF ANTIGONISH

OF ANTIGONISH                                         - and -                                                                        

(Appellant)                                                                                                                  (Respondent)

 CA176023                                               Halifax, N.S.                                     HAMILTON, J.A.

                      [Cite as: Antigonish(County) v. Antigonish (Town), 2002 NSCA 92]

APPEAL HEARD:                                 May 22, 2002

JUDGMENT DELIVERED:                 June 26, 2002

SUBJECT:         Administrative Law - Public Utilities Act, s. 83(1) - Determination of Water Rates

SUMMARY:        Following a complaint by the appellant pursuant to s. 83(1) of the Public Utilities Act, the Nova Scotia Utility and Review Board determined that the fire protection charge applicable to the parties should be determined on the basis of the fire flows method, calculated at the ten connection points on the boundary between the water supply systems of the parties. It also determined that the total fire protection charge should be split between the parties in proportion to their maximum required fire flow, after discounting the appellant’s share to take into account the deficiency in the required fire flow at some of the ten connection points. The Board also found it had no jurisdiction to order that this allocation would apply from the date of complaint rather than the date of the order, and did not order a retroactive allocation.

ISSUES:              1.   Did the Board commit a reviewable error in allocating the fire protection charge?

2.      Did the Board commit a reviewable error in not ordering retroactive allocation?

RESULT:             1.   Appeal dismissed with costs. The Board’s decision on the allocation of the fire protection charge was a carefully well reasoned decision taking into account the significant expert evidence before it. It was clear the Board had considered the alternatives before it and had attempted to allocate the fire protection charge in a manner that was fairest to both parties on the facts in this case. The Board did not commit a reviewable error in allocating the fire protection charge as it did.

2.      It was not necessary to decide if the Board has the power to order that the new allocation apply prior to the date of the order. The Board’s decision did not grant a retroactive allocation and on the facts of this case it did not err in doing so.