How much responsibility should FortisBC bear if something goes wrong while moving its gas pipes as the city upgrades its Burkeville sewage system?
The answer to this question is what the City of Richmond is challenging in court.
Earlier the B.C. Utilities Commission (BCUC) added a clause to a contract between Fortis and the city that would limit costs and losses Fortis must bear as it works on Burkeville’s pipes in anticipation of the city upgrading its water and drainage system.
But the city is arguing the utilities commission doesn’t have the authority to make that change in the contract.
The issue came to light when the city found three locations where Fortis’ natural gas distribution pipes would be in the way of new sewers and manholes, and Fortis was asked to shift the pipes.
When the two failed to agree on the terms of the contract and Fortis refused to start the projects, the city asked the BCUC to order Fortis to take on the work.
BCUC did order Fortis to complete the projects using Fortis’ proposed terms, but added a liability clause.
This clause states Fortis and related parties shouldn’t have to pay if anything goes wrong while moving the pipes unless the damage was caused by Fortis’ negligence.
This could translate into costs falling on the city and taxpayers.
The city, however, claimed BCUC doesn’t have jurisdiction to change the legal relationship between it and Fortis nor does it have the power to allocate risks between parties.
When BCUC dismissed the city’s application to reconsider its decision, the city went to the Court of Appeal for permission to appeal it.
Fortis contested Richmond’s appeal, telling the court the appeal was a “dead duck.”
BCUC has the power to decide on liability because it is “intimately tied to the establishment of rates,” argued Fortis.
Hon. Justice Mary Saunders ultimately allowed the city’s appeal since its questions about BCUC’s jurisdiction “have substance, are important, and have the degree of merit required for the granting of leave to appeal.”
