Decision Date: November 22, 2019
Panel: Jeff Hand
Keywords: Administrative Tribunals Act – s. 50(1); Water Sustainability Act – s. 105(6); Interest on Overdue Accounts Payable Regulation – ss. 1, 4, 6, order; water rental fees; interest
Harrison Hydro Project Inc., Fire Creek Project Limited Partnership, Lamont Creek Project Limited Partnership, Stokke Creek Project Limited Partnership, Tipella Creek Project Limited Partnership, and Upper Stave Project Limited Partnership (collectively, the “Appellants”) appealed two orders (the “2017 Orders”) issued to Harrison Hydro Project Inc. (“Harrison”). Harrison is the general partner of each of the limited partnerships. The 2017 Orders were issued by the Comptroller of Water Rights (the “Comptroller”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”).
The 2017 Orders adjusted the water rental rates for the five hydropower projects for the 2011 and 2012 calendar years, by aggregating the power produced at the five projects. The 2017 Orders resulted in significantly higher water rental rates than if the power projects were billed as separate projects. The adjusted water rental rates resulted in additional water rental fees of $3,180,949.94, which Harrison paid under protest.
The Appellants appealed the 2017 Orders on several grounds. The Appellants asked the Board to reverse the 2017 Orders, and refund the additional rental fees.
The Board reviewed the relevant provisions in the Water Sustainability Act and its regulations, and found no authority for the Comptroller to make retroactive orders with respect to water rental fees. The water licence amendments occurred in 2013. Therefore, any adjustment to the water rental fees for those licences could only take effect as of 2013. The Comptroller had no authority to retroactively adjust the fees paid for 2011 and 2012. Accordingly, the Board ordered the fees collected for those years to be returned to the Appellants, and the appeals were allowed.
The Appellants then applied to the Board for an order that the returned fees should accrue interest from the date paid until they were refunded.
The Board found that water rental fees improperly collected by the Comptroller constitute an “overpayment” under the Interest on Overdue Accounts Payable Regulation (the “Regulation”) such that those fees accrue interest. The Comptroller has the authority to apply the Regulation to overpayments received by government. The Board has the same powers as the Comptroller, pursuant to section 105(6)(c) of the Water Sustainability Act. Therefore, the Board ordered that the sum being returned to the Appellants would accrue interest from the 61st day after the government received the overpayment, in accordance with the Regulation, until it is refunded to the Appellants. The Appellants’ application was granted.
