The City of Richmond's legal battle with FortisBC for liability over sewer and water main upgrades has ended in defeat.
The city and FortisBC were at odds over contract terms for moving natural gas distribution pipes that were in the way of the city’s new sewers and manholes in Burkeville.
After taking the matter to the B.C. Utilities Commission (BCUC) in 2021, the commission ordered FortisBC to start moving the pipes.
But BCUC added a clause into the contract – between the city and FortisBC - which would limit FortisBC's liability in case anything went wrong — unless it was caused by FortisBC's negligence.
The City of Richmond later asked BCUC to reconsider this decision.
This was, however, dismissed by BCUC, claiming it had jurisdiction to add the limited liability clause.
The city then appealed the decision to the B.C. Court of Appeal in 2022, arguing BCUC had acted beyond its jurisdiction.
FortisBC contested the appeal attempt at the time, calling the issue a "dead duck" and arguing BCUC had the power to decide on liability because it was "intimately tied to the establishment of rates."
The appeal was ultimately allowed to proceed because the city's questions about BCUC's jurisdiction were considered to have sufficient substance, importance and merit.
In a decision issued on Jan. 17, however, B.C. Court of Appeal justices dismissed the city’s appeal.
Justice Peter Voith pointed out the city's oral submissions were "significantly inconsistent" with its written submissions.
In its written argument, the city argued BCUC "misapplied" a legal doctrine in regards to the limited liability clause. But, in its oral arguments, the city said BCUC made an error in law by "failing to apply" the doctrine.
Voith found the BCUC properly analyzed its jurisdiction when imposing the limited liability clause.
He also found BCUC is allowed to specify such terms under the Utilities Commission Act (UCA), which allows the commission to order the use of a street and specify the terms and manner of the use should a public utility and municipality fail to reach an agreement, as long as they're consistent with the Act and the purpose of the UCA and within BCUC's core mandate.
Got an opinion on this story or any others in Richmond? Send us a letter or email your thoughts or story tips to [email protected].
