Bill 61 - An Act Respecting a Public Intervener for the Energy Sector

BILL 61

An Act Respecting a Public Intervener for the Energy Sector

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“Attorney General” includes any person designated by the Attorney General to act on the Attorney General’s behalf. (procureur général)

“Board” means the New Brunswick Energy and Utilities Board continued under the Energy and Utilities Board Act. (Commission)

“direct expenses” means the expenses incurred by the Public Intervener in relation to a Board proceeding, including all costs and disbursements incurred with respect to consultants, witnesses and the appeal or review of a Board decision. (dépenses directes)

“fiscal year” means fiscal year as defined in the Financial Administration Act. (exercice financier)

“operating expenses” means the expenses incurred by the Public Intervener that are not direct expenses, and includes the following items: (dépenses communes)

(a) the cost of the Public Intervener’s salary, benefits and expenses; and

(b) that portion of the cost of salaries, benefits and expenses of any other employee under the Civil Service Act that is attributable to work performed on behalf of or in furtherance of the duties and obligations of the Public Intervener.

“Public Intervener” means the person appointed under subsection 2(1) as the Public Intervener for the Energy Sector and includes the following: (intervenant public)

(a) a person designated by the Public Intervener to act on the Public Intervener’s behalf; and

(b) a law officer to whom the Attorney General has delegated a power or duty under section 3.

Appointment of Public Intervener

2( 1) The Lieutenant-Governor in Council shall appoint a barrister and solicitor who is a member in good standing of the Law Society of New Brunswick as the Public Intervener for the Energy Sector.

2( 2) The Civil Service Act applies to the Public Intervener.

Delegation

3( 1) In the case of the temporary absence, illness or inability of the Public Intervener to act, the Attorney General may delegate in writing to a law officer within the Office of the Attorney General any power conferred on or duty imposed on the Public Intervener under this or any other Act or a regulation under this or any other Act.

3( 2) The Attorney General may impose on a delegation those terms and conditions that he or she considers appropriate.

3( 3) Anything done by a person under a delegation shall have the same effect as if it had been done by the Public Intervener.

3( 4) In the case of the temporary absence, illness or inability of the Public Intervener to act, the Public Intervener may designate in writing an employee in the Office of the Attorney General to act on his or her behalf.

Oath or affirmation

4( 1) Before taking office, the Public Intervener shall take the oath or make the affirmation set out in section 22 of the Civil Service Act before a person who is authorized to administer it.

4( 2) An oath taken or affirmation made under subsection (1) shall be filed with the Attorney General.

Contracting for services

5 The Public Intervener may contract for the services that the Public Intervener considers necessary to carry out his or her duties or exercise his or her powers.

Powers and duties

6( 1) The Public Intervener has the powers conferred on and the duties imposed on the Public Intervener under this or any other Act or the regulations under this or any other Act.

6( 2) The Public Intervener shall intervene in a proceeding of the Board initiated under any of the following Acts and, when intervening, shall make those representations that the Public Intervener considers to be in the public interest:

(a) the Electricity Act;

(b) the Gas Distribution Act, 1999;

(d) the Pipeline Act, 2005.

6( 3) The Public Intervener may intervene in a proceeding of the Board initiated under an Act not listed in subsection (2), and, when intervening, shall make those representations that the Public Intervener considers to be in the public interest.

6( 4) The Public Intervener shall intervene in any proceeding of the Board that the Lieutenant-Governor in Council requires.

6( 5) During a proceeding of the Board, the Public Intervener shall advocate in the public interest and does not represent the interests of nor advocate on behalf of a party to the proceeding, a customer, a class of customers, a government department or agency or other interested group.

6( 6) During a proceeding of the Board, the Public Intervener may present evidence, call witnesses, cross-examine witnesses and make submissions and representations to the Board.

6( 7) The Public Intervener shall not agree to the settlement of a matter that is within the exclusive jurisdiction of the Board to determine, but may agree to the resolution of a procedural or evidentiary matter that he or she considers reasonable and consistent with the duties of the Public Intervener.

Initial budget

7( 1) Within 45 days after the appointment of the first Public Intervener, the Public Intervener shall submit to the Attorney General for approval an initial budget setting out the operating expenses for the balance of the fiscal year in which the Public Intervener is appointed.

7( 2) Subject to subsection (3), within 30 days after receiving the initial budget, the Attorney General shall approve that budget and forward a copy of it to the Board.

7( 3) When approving the initial budget, the Attorney General may make those changes to the budget that he or she considers appropriate.

Budget

8( 1) Not later than January 15 of each year, the Public Intervener shall submit to the Attorney General for approval a budget setting out the operating expenses for the next fiscal year.

8( 2) Subject to subsection (3), not later than February 15 of each year, the Attorney General shall approve the budget and forward a copy of it to the Board.

8( 3) When approving the budget, the Attorney General may make those changes to the budget that he or she considers appropriate.

Accounting of operating expenses

9 Not later than May 31 of each year, the Public Intervener shall submit to the Board and to the Attorney General an accounting of the operating expenses for the previous fiscal year.

Assessment of operating expenses

10( 1) An amount equal to the budgeted operating expenses for the next fiscal year

(a) shall be included in the annual expenses for the Board for the purposes of assessment under section 50 of the Energy and Utilities Board Act,

(b) shall be assessed under that section as common expenses, and

10( 2) If the amount remitted to the Minister of Finance for a fiscal year is more or less than the actual operating expenses for that fiscal year, the surplus or deficit, as the case may be, shall be deducted from or added to, respectively, the amount included in the annual expenses for the Board for the next assessment.

10( 3) This section applies with the necessary modifications to an initial budget forwarded to the Board under section 7.

Assessment of direct expenses

11( 1) The following definitions apply in this section.

“attributable expenses” means direct expenses, other than non-attributable expenses, regardless of whether the proceeding was commenced by a person, a public utility or the Board. (dépenses imputables)

“non-attributable expenses” means direct expenses incurred as a result of a review conducted by the Board under subsection 14(1) of the Petroleum Products Pricing Act. (dépenses non imputables)

“public utility” means a public utility as defined in section 53 of the Energy and Utilities Board Act. (entreprise de service public)

11( 2) The Public Intervener shall submit to the Board and to the Attorney General an accounting of all direct expenses incurred in relation to a Board proceeding at the following times:

(a) within 30 days after the end of each fiscal quarter; and

(b) within 60 days after the conclusion of the proceeding.

11( 3) An amount equal to the attributable expenses incurred in a fiscal year

(a) shall be included in the annual expenses for the Board for the purposes of assessment under section 50 of the Energy and Utilities Board Act,

(b) shall be assessed as direct expenses, and

11( 4) Within 30 days after receiving under subsection (2) an accounting of non-attributable expenses incurred by the Public Intervener, the Board shall remit to the Minister of Finance an amount equal to the non-attributable expenses set out in the accounting, and the amount shall be paid out of the levy collected under section 26 of the Petroleum Products Pricing Act.

Information for assessments

12 The Public Intervener shall provide the Board with any additional information that it requires for the purpose of an assessment under section 50 of the Energy and Utilities Board Act.

Annual Report

13( 1) Annually, the Public Intervener shall file a report with the Attorney General with respect to the activities of the Public Intervener, and the report shall include the information that the Attorney General requires.

13( 2) The Attorney General shall lay the report before the Legislative Assembly if it is sitting or, if not sitting, when it next sits.

Administration

14 The Attorney General is responsible for the administration of this Act.

Regulations

15 The Lieutenant-Governor in Council may make regulations

(a) conferring powers or imposing duties on the Public Intervener;

(b) prescribing proceedings of the Board in which the Public Intervener is required to intervene.

Transitional provisions

16( 1) The Public Intervener is not required to intervene in a proceeding of the Board that was initiated before the commencement of this section.

16( 2) On the commencement of this section, if the Attorney General or his or her agent is intervening in a proceeding of the Board, he or she may continue to do so until the proceeding is finally concluded.

16( 3) Despite subsection 17(5), section 51 of the Energy and Utilities Board Act continues to apply with respect to costs incurred by the Attorney General until any proceeding in which the Attorney General is intervening or has intervened is finally concluded.

Energy and Utilities Board Act

17( 1) Section 1 of the Energy and Utilities Board Act, chapter E-9.18 of the Acts of New Brunswick, 2006, is amended by adding the following definition in alphabetical order:

“Public Intervener” means the Public Intervener for the Energy Sector appointed under An Act Respecting a Public Intervener for the Energy Sector. (intervenant public)

17( 2) The heading “Notification to Attorney General” preceding section 49 of the Act is repealed and the following is substituted:

Notification to Public Intervener

17( 3) Section 49 of the Act is repealed and the following is substituted:

Notification to Public Intervener

49( 1) When a proceeding is initiated before the Board, the Board shall notify the Public Intervener.

49( 2) On request, the Board shall forward to the Public Intervener a copy of all materials filed with the Board with respect to the proceeding.

49( 3) With respect to those matters within the responsibility of the Public Intervener under An Act Respecting a Public Intervener for the Energy Sector, the Public Intervener shall be deemed to be a party to all proceedings before the Board, regardless of whether the Public Intervener has notified the Board of his or her intention to intervene.

17( 4) The heading “Deemed expenses” preceding section 51 of the Act is repealed.

17( 5) Section 51 of the Act is repealed.

Petroleum Products Pricing Act

18 Section 26 of the Petroleum Products Pricing Act, chapter P-8.05 of the Acts of New Brunswick, 2006, is amended

(a) by repealing subsection (1) and substituting the following:

26( 1) A wholesaler as defined in the Gasoline and Motive Fuel Tax Act shall pay annually to the Board the levy prescribed by regulation for the following purposes:

(a) defraying the expenses incurred by the Board under this Act; and

(b) defraying the expenses incurred by the Public Intervener for the Energy Sector as a result of a review conducted by the Board under subsection 14(1).

(b) by adding after subsection (2) the following:

26( 3) Annually, a committee composed of the following persons shall review the amount of the levy and may recommend to the Minister that the amount be adjusted:

(a) the Chairperson of the Board;

(b) the Vice-Chairperson of the Board;

(d) the Deputy Minister of Energy and Mines.

26( 4) The committee shall consider the following information and criteria when determining whether an adjustment to the amount of the levy is appropriate:

(a) trends in the annual volumes of gasoline and motive fuel sold in the Province;

(b) the potential for and complexity of future reviews conducted by the Board under section 14;

(c) the estimated expenses that will be incurred by the Board under this Act and by the Public Intervener for the Energy Sector as a result of a review conducted by the Board under subsection 14(1);

(d) the requirement to maintain a contingency reserve of the levies paid; and

(e) any other information or criteria that the committee considers appropriate.

26( 5) The Minister may recommend to the Lieutenant-Governor in Council that the amount of the levy be adjusted in accordance with the recommendation of the committee.

Regulation under the Petroleum Products Pricing Act

19 Subsection 14(1) of New Brunswick Regulation 2006-41 under the Petroleum Products Pricing Act is amended by striking out “0.025” and substituting “0.0375”.

Commencement

20 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.