BILL 77
An Act to Amend the Electricity Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1 Section 1 of the Electricity Act, chapter 7 of the Acts of New Brunswick, 2013, is amended
aby repealing the definition “amalgamating corporations”;
bby repealing the definition “Chair” and substituting the following:
“Chair” means, (président)
asubject to paragraph (b), the Chair of the board of directors of the Corporation, or
bfor the purposes of Part 1.1, the Chair of the board of directors of the Holding Corporation.
cby repealing the definition “Corporation” and substituting the following:
“Corporation” means the corporation that was amalgamated and continued as a corporation with share capital under the name New Brunswick Power Corporation in English and Société d’énergie du Nouveau-Brunswick in French on October 1, 2013. (Société)
dby repealing the definition “President and Chief Executive Officer” and substituting the following:
“President and Chief Executive Officer” means, (président-directeur général)
asubject to paragraph (b), the President and Chief Executive Officer of the Corporation, or
bfor the purposes of Part 1.1, the President and Chief Executive Officer of the Holding Corporation.
eby repealing the definition “Vice-Chair” and substituting the following:
“Vice-Chair” means, (vice-président)
asubject to paragraph (b), the Vice-Chair of the board of directors of the Corporation, or
bfor the purposes of Part 1.1, the Vice-Chair of the board of directors of the Holding Corporation.
fin the definition « services accessoires » in the French version by striking out “puissance” and substituting “capacité”;
gby adding the following definitions in alphabetical order:
“Holding Corporation” means the corporation established under subsection 2.1(1). (Société de portefeuille)
“qualifying costs” means qualifying costs as defined in the regulations. (coûts admissibles)
2 The Act is amended by adding after section 2 the following:
PART 1.1
HOLDING CORPORATION
Division A
Establishment, board of directors, officers and employees
Establishment
2.1( 1) There is established a corporation with share capital under the name New Brunswick Power Holding Corporation consisting of those persons who compose the board of directors.
2.1( 2) The Holding Corporation is a Crown corporation and is, for all purposes, an agent of the Crown.
2.1( 3) Subject to this Act, the Holding Corporation has the capacity, rights, powers and privileges of a natural person.
2.1( 4) The Holding Corporation has the capacity to carry on its business, conduct its affairs and exercise its powers outside the Province.
2.1( 5) The Business Corporations Act does not apply to the Holding Corporation.
2.1( 6) The head office of the Holding Corporation is at The City of Fredericton
Shares and other securities
2.11( 1) The authorized capital of the Holding Corporation consists of an unlimited number of common shares without nominal or par value.
2.11( 2) On the commencement of section 2.1, one voting share of the Holding Corporation shall be issued to the Crown as represented by the Minister.
2.11( 3) Only the Crown as represented by the Minister may hold or acquire a voting share of the Holding Corporation.
2.11( 4) The Holding Corporation may, by by-law,
asubdivide its shares, or any of them, into one or more classes, fix the number of shares in each class and determine that, as between the holders of the shares resulting from the subdivision, one or more of the shares shall have some preference or special advantage as regards dividend, capital, voting or otherwise, over, or as compared with, the others or other, or
bconvert any part of its issued or unissued share capital into preferred shares redeemable or purchasable by the Holding Corporation.
2.11( 5) No person shall transfer any notes, bonds, debentures or other securities of the Holding Corporation, other than non-convertible debt securities, without the approval of the Lieutenant-Governor in Council.
2.11( 6) Subject to the rights, privileges, restrictions and conditions attaching to a class of shares and subject to subsection 2.7(5), the Holding Corporation may purchase or otherwise acquire shares issued by it.
2.11( 7) The Holding Corporation may issue certificates in any form approved by the board of directors of the Holding Corporation to evidence any shares or other securities issued by the Holding Corporation.
Board of directors
2.12( 1) The board of directors of the Holding Corporation shall administer the business and affairs of the Holding Corporation on a commercial basis, taking into consideration government policy.
2.12( 2) The board of directors of the Holding Corporation shall be composed of
athe President and Chief Executive Officer, who shall be a non-voting member, and
bnot more than 14 directors appointed by the Lieutenant-Governor in Council.
2.12( 3) The directors referred to in paragraph (2)(b) shall be appointed for a term not exceeding five years.
2.12( 4) Despite subsection (3), a director referred to in paragraph (2)(b) shall hold office at the pleasure of the Lieutenant-Governor in Council.
2.12( 5) A director referred to in paragraph (2)(b) shall be appointed from among those persons nominated by the board of directors of the Holding Corporation in accordance with subsection (7).
2.12( 6) Before making nominations under this section, the board of directors of the Holding Corporation shall advise the Lieutenant-Governor in Council of
athe skills and qualifications required of the board of directors as a whole in order for the board to carry out its functions, and
bthe skills and qualification requirements for nominees for the board of directors position or positions to be filled.
2.12( 7) In making nominations under this section, the board of directors of the Holding Corporation shall
ause a merit-based and objective approach,
bensure that the board of directors as a whole has the necessary skills and qualifications to carry out its functions,
cprovide to the Lieutenant-Governor in Council a description of the recruitment, assessment and selection processes used and the results of those processes, and
dcomply with any regulations made under paragraph 142(1)(b).
2.12( 8) A director referred to in paragraph (2)(b) may be reappointed for a second or subsequent term of office not exceeding five years, but subsection (5) does not apply to a director who is reappointed before or immediately after the expiry of their previous term.
2.12( 9) Despite subsections (3) and (8) and subject to subsection (4), a director referred to in paragraph (2)(b) shall remain in office until the director resigns or is reappointed or replaced.
2.12( 10) The resignation of a director becomes effective at the time a written resignation is received by the Holding Corporation, or at the time specified in the resignation, whichever is later.
2.12( 11) A vacancy on the board of directors of the Holding Corporation does not impair the capacity of the board to act as long as a quorum is maintained.
Chair and Vice-Chair
2.2( 1) The Lieutenant-Governor in Council shall appoint a Chair of the board of directors of the Holding Corporation and a Vice-Chair of its board of directors from among the directors referred to in paragraph 2.12(2)(b).
2.2( 2) A Chair or Vice-Chair shall hold office as such for a term fixed by the Lieutenant-Governor in Council and may be reappointed for a second or subsequent term of office.
2.2( 3) Subject to subsection (4), the Chair, or in the Chair’s absence, the Vice-Chair, shall preside at meetings of the board of directors of the Holding Corporation.
2.2( 4) If the Chair and Vice-Chair are absent from a meeting of the board of directors of the Holding Corporation, the directors present may elect from among themselves a person to preside at the meeting.
2.2( 5) In the case of a temporary absence or inability to act of the Chair or Vice-Chair, the Lieutenant-Governor in Council may appoint from among the directors referred to in paragraph 2.12(2)(b) a substitute for the Chair or Vice-Chair for the period of the temporary absence or inability to act.
2.2( 6) Despite subsection (2), if the Chair or Vice-Chair ceases to be a director of the Holding Corporation, they cease to be the Chair or the Vice-Chair, as the case may be.
2.2( 7) Despite subsection (2), but subject to subsection (6), the Chair or Vice-Chair shall remain in office until they resign or are reappointed or replaced.
2.2( 8) The resignation of the Chair or Vice-Chair becomes effective at the time a written resignation is received by the Holding Corporation, or at the time specified in the resignation, whichever is later.
First board of directors
2.21( 1) Despite section 2.12, the members of the board of directors of the Corporation are appointed to the first board of directors of the Holding Corporation.
2.21( 2) Despite section 2.2, the Chair and Vice-Chair of the Corporation are appointed to be the first Chair and Vice-Chair of the board of directors of the Holding Corporation.
2.21( 3) The members of the first board of directors of the Holding Corporation and the first Chair and Vice-Chair shall hold office at the pleasure of the Lieutenant-Governor in Council.
2.21( 4) Despite section 2.4, no remuneration shall be paid to the first members of the board of directors of the Holding Corporation or to the first Chair and Vice-Chair.
Quorum
2.22 A majority of the directors of the Holding Corporation constitutes a quorum.
Meetings of the board of directors
2.3( 1) The meetings of the board of directors of the Holding Corporation shall be held in the Province on the notice that is required by its by-laws.
2.3( 2) A director may in any manner waive notice of a meeting of the board of directors and attendance of a director at a meeting of the board of directors is a waiver of notice of the meeting, except if a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting was not lawfully called.
2.3( 3) A director may participate in a meeting of the board of directors or of a committee of the board of directors by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by those means shall be deemed for the purposes of this Act to be present at that meeting.
Resolution instead of meeting
2.31( 1) A resolution in writing signed by all directors of the Holding Corporation entitled to vote on that resolution at a meeting of its board of directors or a committee of its board of directors is as valid as if it had been passed at a meeting of the board or committee duly called, constituted and held.
2.31( 2) If counterparts of a resolution in writing have been signed by all the directors entitled to vote on that resolution at a meeting of the board of directors or committee of the board of directors, the resolution is as valid as if it had been passed at a meeting of the board or committee duly called, constituted and held.
2.31( 3) Every signed resolution or counterpart referred to in this section shall be kept with the minutes of the proceedings of the board of directors or committee of the board of directors.
Dissent by directors
2.32( 1) A director who is present at a meeting of the board of directors of the Holding Corporation or of a committee of the board of directors shall be deemed to have consented to any resolution passed or action taken at the meeting unless
athe director requests that their dissent be, or their dissent is, entered in the minutes of the meeting,
bthe director sends the director’s written dissent to the secretary of the meeting before the meeting is adjourned, or
cthe director sends the director’s dissent by registered mail or delivers it to the head office of the Holding Corporation immediately after the meeting is adjourned.
2.32( 2) A director who votes for or consents to a resolution is not entitled to dissent under subsection (1).
Remuneration
2.4 The Chair and the Vice-Chair and the other directors of the Holding Corporation shall be paid the remuneration that the Lieutenant-Governor in Council determines, and the payment shall be made out of the funds of the Holding Corporation.
By-laws
2.41( 1) In addition to any other by-laws authorized or required to be made under this Act and subject to this Act, the Holding Corporation may, with the approval of the Lieutenant-Governor in Council, make by-laws for the control and management of the Holding Corporation’s affairs, including, but not limited to, by-laws
arespecting the appointment of officers of the Holding Corporation and prescribing the powers and duties of the President and Chief Executive Officer, any other officers of the Holding Corporation or the Chair or Vice-Chair,
bauthorizing the board of directors of the Holding Corporation to establish committees of the board of directors, to determine the composition and operation of the committees and to delegate any powers or duties of the board of directors to the committees, and
crespecting the holding of meetings of the board of directors or of a committee referred to in paragraph (b) and the procedure at the meetings.
2.41( 2) The Regulations Act does not apply to by-laws made by the Holding Corporation.
President and Chief Executive Officer of the Holding Corporation
2.42( 1) The Lieutenant-Governor in Council shall appoint a President and Chief Executive Officer of the Holding Corporation for a term not exceeding five years.
2.42( 2) The President and Chief Executive Officer shall be appointed from among those persons nominated by the board of directors of the Holding Corporation in accordance with subsection (7).
2.42( 3) The President and Chief Executive Officer is, subject to the direction of the board of directors of the Holding Corporation, charged with the general direction, supervision and control of the business of the Holding Corporation and may exercise any other powers and duties conferred on them by the by-laws of the Holding Corporation or by this Act.
2.42( 4) The President and Chief Executive Officer shall be paid the remuneration that the Lieutenant-Governor in Council determines, and the payment shall be made out of the funds of the Holding Corporation.
2.42( 5) In determining the remuneration of the President and Chief Executive Officer, the Lieutenant-Governor in Council shall consider any recommendation made by the board of directors of the Holding Corporation.
2.42( 6) Before making nominations under this section, the board of directors of the Holding Corporation shall advise the Lieutenant-Governor in Council of the skills and qualification requirements for nominees for the position of President and Chief Executive Officer.
2.42( 7) In making nominations under this section, the board of directors of the Holding Corporation shall
ause a merit-based and objective approach,
bensure that nominees have the necessary skills and qualifications to hold the office of President and Chief Executive Officer,
cprovide to the Lieutenant-Governor in Council a description of the recruitment, assessment and selection processes used and the results of those processes, and
dcomply with any regulations made under paragraph 142(1)(b).
2.42( 8) A President and Chief Executive Officer may be reappointed for a second or subsequent term of office not exceeding five years, but subsection (2) does not apply to a President and Chief Executive Officer who is reappointed before or immediately after the expiry of their previous term.
2.42( 9) In the case of a temporary absence or inability to act of the President and Chief Executive Officer, the board of directors of the Holding Corporation may, despite anything else in this section, appoint a substitute for them for the period of the temporary absence or inability to act.
2.42( 10) On the recommendation of the board of directors of the Holding Corporation, the Lieutenant-Governor in Council may remove the President and Chief Executive Officer from office in accordance with a contract of employment between the Holding Corporation and the President and Chief Executive Officer or in accordance with applicable law.
2.42( 11) Despite subsection (10), the Lieutenant- Governor in Council may remove the President and Chief Executive Officer from office in the circumstances set out in the regulations.
2.42( 12) If the President and Chief Executive Officer is removed under subsection (10) or (11), the board of directors of the Holding Corporation may, despite anything else in this section, appoint a substitute to hold office until a new President and Chief Executive Officer is appointed under this section.
2.42( 13) Despite subsections (1) and (8) and subject to subsections (10) and (11), the President and Chief Executive Officer shall remain in office until they resign or are reappointed or replaced.
2.42( 14) The resignation of the President and Chief Executive Officer becomes effective at the time a written resignation is received by the Holding Corporation, or at the time specified in the resignation, whichever is later.
First President and Chief Executive Officer of the Holding Corporation
2.5( 1) Despite subsection 2.42(1), the President and Chief Executive Officer of the Corporation is appointed as the first President and Chief Executive Officer of the Holding Corporation.
2.5( 2) The first President and Chief Executive Officer of the Holding Corporation shall hold office at the pleasure of the Lieutenant-Governor in Council.
2.5( 3) Despite subsection 2.42(4), no remuneration shall be paid to the first President and Chief Executive Officer of the Holding Corporation.
Employees of the Holding Corporation
2.51 The Holding Corporation shall adopt a policy regarding staff requirements and the mode of appointment of its employees.
Duty of care of directors and officers
2.52( 1) Every director and officer of the Holding Corporation in exercising their powers and discharging their duties shall
aact honestly and in good faith in the best interests of the Holding Corporation, and
bexercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances in the best interests of the Holding Corporation.
2.52( 2) Every director and officer of the Holding Corporation shall comply with this Act, the regulations and the by-laws of the Holding Corporation.
2.52( 3) A director or officer of the Holding Corporation who exercises their powers or discharges their duties in accordance with this Act, the regulations or the by-laws of the Holding Corporation shall be deemed to act in the best interests of the Holding Corporation.
Immunity
2.6( 1) No action or other proceeding lies or shall be instituted against a director, officer or employee of the Holding Corporation or against a former director, officer or employee of the Holding Corporation for any act done in good faith in the exercise or performance or the intended exercise or performance of a power or duty under this Act or the regulations or for any neglect or default in the exercise or performance in good faith of such a power or duty.
2.6( 2) Subsection (1) does not relieve the Holding Corporation of any liability to which it would otherwise be subject in respect of a cause of action arising from any act, neglect or default referred to in subsection (1).
Indemnification
2.61( 1) The Holding Corporation may indemnify a director or officer of the Holding Corporation or of a subsidiary of the Holding Corporation against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the Holding Corporation or the subsidiary.
2.61( 2) The Holding Corporation may advance money to an individual referred to in subsection (1) for the costs, charges and expenses of a proceeding referred to in that subsection, and the individual shall repay the money if it is determined by a court or other competent authority that the individual does not fulfil the conditions of subsection (3).
2.61( 3) The Holding Corporation may not indemnify an individual under subsection (1) unless
athe individual acted honestly and in good faith with a view to the best interests of the Holding Corporation or of the subsidiary of the Holding Corporation, as the case may be, and
bin the case of a criminal or administrative action or proceeding that is enforced by a financial penalty, the individual had reasonable grounds for believing that the individual’s conduct was lawful.
2.61( 4) Despite subsection (1), an individual referred to in that subsection is entitled to indemnity from the Holding Corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s association with the Holding Corporation or a subsidiary of the Holding Corporation, if the individual seeking indemnity
awas not judged by a court or other competent authority to have committed any fault or to have omitted to do anything that the individual ought to have done, and
bfulfils the conditions set out in subsection (3).
2.61( 5) The Holding Corporation may purchase and maintain insurance for the benefit of an individual referred to in subsection (1) against any liability incurred by the individual as a director or officer of the Holding Corporation or of a subsidiary of the Holding Corporation.
Division B
Powers
Subsidiaries of the Holding Corporation
2.62( 1) With the approval of the Lieutenant-Governor in Council, the Holding Corporation may incorporate a subsidiary under the Business Corporations Act.
2.62( 2) The articles of incorporation of a subsidiary of the Holding Corporation referred to in subsection (1) shall be submitted to and approved by the Lieutenant-Governor in Council before submission to the Director.
2.62( 3) A subsidiary of the Holding Corporation referred to subsection (1) shall not be an agent of the Crown for any purpose.
Activities requiring approval of the Lieutenant-Governor in Council
2.7( 1) The Holding Corporation shall not, without the approval of the Lieutenant-Governor in Council, do any of the following:
aborrow sums of money;
bissue notes, bonds, debentures or other securities;
cincorporate a subsidiary;
denter into partnerships or other similar arrangements for the sharing of profits with any other person;
eacquire or hold shares or other ownership interests in another entity;
fenter into, terminate or amend a shareholders’ agreement in respect of a subsidiary of the Holding Corporation;
gmake, alter or revoke any by-laws of the Holding Corporation; or
hguarantee the obligations of any other person.
2.7( 2) Despite paragraph (1)(e), the Holding Corporation may acquire and hold for cash management purposes shares or other ownership interests issued by another entity as long as the Holding Corporation does not hold more than ten percent of the issued and outstanding voting shares or interests of that other entity.
2.7( 3) Paragraph (1)(e) does not apply to the holding by the Holding Corporation of shares in a subsidiary of the Holding Corporation.
2.7( 4) Paragraph (1)(h) does not apply to the guaranteeing of any obligation of a subsidiary of the Holding Corporation.
2.7( 5) Except in the ordinary course of business of the Holding Corporation, the Holding Corporation shall not, as part of a transaction or series of related transactions, purchase, lease or otherwise acquire, or sell, exchange, lease or otherwise dispose of, an asset or assets with a value greater than $50 million without the approval of the Lieutenant-Governor in Council.
Dividends
2.71( 1) The Holding Corporation may declare or pay a dividend unless there are reasonable grounds for believing that
athe Holding Corporation is, or would after the payment, be unable to pay its liabilities as they become due, or
bthe realizable value of the Holding Corporation’s assets would, in declaring or paying the dividend, be less than the aggregate of its liabilities.
2.71( 2) Any dividends payable to the Crown shall be paid to the Minister of Finance and Treasury Board.
Division C
Government Policy
Directives by the Executive Council
2.72 The Executive Council may at any time issue directives in writing to the Holding Corporation that must be taken into consideration by the board of directors of the Holding Corporation.
Division D
Financial Matters and Reporting
Fiscal year
2.8 The fiscal year of the Holding Corporation ends on March 31 in each year.
Appointment of auditor
2.81 The board of directors of the Holding Corporation shall appoint, with the approval of the Lieutenant-Governor in Council, a qualified auditor to audit annually the accounts and financial statements of the Holding Corporation.
Audited financial statements
2.82 The Holding Corporation shall, within three months after the end of its fiscal year, submit to the Minister its audited financial statements for that fiscal year, and the Minister shall, within 30 days after receiving them, table the financial statements in the Legislative Assembly if it is then sitting or, if it is not then sitting, with the Clerk of the Legislative Assembly.
Other reports
2.9 The Holding Corporation shall submit any other reports and information to the Minister that the Minister requests from time to time.
3 The heading “Amalgamation” preceding Division A of Part 2 of the Act is repealed and the following is substituted:
New Brunswick Power Corporation
4 The heading “Amalgamated corporation” preceding section 3 of the Act is repealed and the following is substituted:
The Corporation
5 Section 3 of the Act is amended
aby repealing subsection (1);
bby adding before subsection (2) the following:
3( 1.1) On the commencement of this subsection, the one common share held by the Crown, as represented by the Minister, in the Corporation is transferred to the Holding Corporation.
3( 1.2) For greater certainty, once the transfer referred to in subsection (1.1) occurs, the Corporation becomes a subsidiary of the Holding Corporation.
6 The heading “Effect of amalgamation” preceding section 4 of the Act is repealed.
7 Section 4 of the Act is repealed.
8 The heading “Real Property” preceding section 5 of the Act is repealed.
9 Section 5 of the Act is repealed.
10 The heading “Continuation of employment” preceding section 7 of the Act is repealed.
11 Section 7 of the Act is repealed.
12 The heading “Deemed certification of bargaining agent” preceding section 8 of the Act is repealed.
13 Section 8 of the Act is repealed.
14 The heading “Deemed application of collective agreement” preceding section 9 of the Act is repealed.
15 Section 9 of the Act is repealed.
16 The heading “Hearing before the Labour and Employment Board” preceding section 10 of the Act is repealed.
17 Section 10 of the Act is repealed.
18 The heading “Certain rights not affected” preceding section 11 of the Act is repealed.
19 Section 11 of the Act is repealed.
20 The heading “Proceedings barred” preceding section 12 of the Act is repealed.
21 Section 12 of the Act is repealed.
22 Section 13 of the Act is repealed and the following is substituted:
Liability of Crown
13( 1) The liability of the Crown as guarantor of a security or other liability of any of the predecessor corporations of the Corporation pursuant to a written guarantee given by the Crown before October 1, 2013, is not affected by anything in this Act.
13( 2) The liability of the Crown as principal of any of the predecessor corporations of the Corporation with respect to liabilities and obligations entered into by any of those corporations on behalf of the Crown before October 1, 2013, is not affected by anything in this Act.
23 The heading “Exemptions from other Acts” preceding section 14 of the Act is repealed.
24 Section 14 of the Act is repealed.
25 Subsection 15(2) of the Act is amended
ain paragraph (a) of the English version by striking out “and” at the end of the paragraph;
bby adding after paragraph (a) the following:
a.1the President and Chief Executive Officer of the Holding Corporation, who shall be a non-voting member of the board of directors, and
26 Section 26 of the Act is amended
ain subsection (1) by striking out “an amalgamating corporation” and substituting “a predecessor corporation”;
bin subsection (2) by striking out “an amalgamating corporation” and substituting “a predecessor corporation”.
27 Subsection 38(2) of the Act is repealed and the following is substituted:
38( 2) Any dividends of the Corporation shall be paid to the Holding Corporation.
28 The Act is amended by adding after section 50 the following:
PART 2.1
TRANSFER ORDERS
Transfer orders
50.1( 1) The Lieutenant-Governor in Council may make orders transferring officers, employees, assets, liabilities, rights and obligations of the Corporation to a subsidiary incorporated in accordance with section 2.62.
50.1( 2) The Lieutenant-Governor in Council may set the terms and conditions of a transfer order.
50.1( 3) A transfer order is binding on the Corporation, the subsidiary that is the transferee and on all other persons.
50.1( 4) Subsection (3) applies despite any public Act or any rule of law, including an Act or rule of law that requires notice or registration of transfers.
50.1( 5) A transfer order does not require the consent of the Corporation, the subsidiary that is the transferee or any other person.
50.1( 6) The Regulations Act does not apply to a transfer order.
50.1( 7) For the purposes of Part 6, a transfer order made by the Lieutenant-Governor in Council under this section shall be deemed to be just and reasonable.
Publication of date of transfer order
50.11( 1) The Minister shall, within 90 days after a transfer order is made or amended, publish notice of the date in The Royal Gazette.
50.11( 2) Notice of the date that a transfer order was amended shall identify the transfer order that was amended.
50.11( 3) Failure to comply with this section does not affect the validity of a transfer order or any amendment to a transfer order.
Description of things transferred
50.2 A transfer order may describe officers, employees, assets, liabilities, rights and obligations to be transferred
aby reference to specific officers, employees, assets, liabilities, rights and obligations,
bby reference to any class of officers, employees, assets, liabilities, rights and obligations, or
cpartly in accordance with paragraph (a) and partly in accordance with paragraph (b).
Transfer of officers and employees
50.21( 1) The office or employment of an officer or employee who is transferred by or under a transfer order is not terminated by the transfer and shall be deemed to have been transferred to the transferee without interruption in service.
50.21( 2) An officer or employee who is transferred by or under a transfer order shall be deemed not to have been constructively dismissed.
50.21( 3) If an officer or employee is transferred by or under a transfer order, nothing in this Act
aprevents the office or employment from being lawfully terminated after the transfer, or
bprevents any term or condition of the office or employment from being lawfully changed after the transfer.
50.21( 4) A transferee shall recognize
athe accumulated sick leave credits and vacation leave credits of an officer or employee referred to in subsection (1), and
bthe terms and conditions of employment of an officer or employee referred to in subsection (1) until changed by a collective agreement or an employment contract.
50.21( 5) The period of employment with the Corporation of an officer or employee referred to in subsection (1) is deemed to be service with the transferee for the purpose of determining probationary periods, benefits or any other employment-related entitlements under the Employment Standards Act or any other Act, at common law or under any employment contract or collective agreement.
Real Property
50.3( 1) The following definitions apply in this section.
“approved parcel identifier” means an approved parcel identifier as defined in the Land Titles Act. (numéro d’identification approuvé)
“Chief Registrar of Deeds” means the Chief Registrar of Deeds appointed under the Registry Act. (conservateur en chef des titres de propriété)
“instrument record” means instrument record as defined in the Land Titles Act. (registre des instruments)
“land titles office” means a land titles office as defined in the Land Titles Act. (bureau d’enregistrement foncier)
“register” (enregistrer)
ain paragraph (4)(a), means register as defined in the Land Titles Act, and
bin paragraph (4)(b), means register within the meaning of the Registry Act.
“registered land” means registered land as defined in the Land Titles Act. (bien-fonds enregistré)
“registered owner” means registered owner as defined in the Land Titles Act. (propriétaire enregistré)
“registrar” (registrateur)
ain paragraph (4)(a), means registrar as defined in the Land Titles Act, and
bin paragraph (4)(b), means registrar as defined in the Registry Act.
“Registrar General” means the Registrar General as defined in the Land Titles Act. (registrateur général)
50.3( 2) If a transfer order provides for the transfer of real property, the Corporation shall file a notice in a land titles office for the District of New Brunswick and in the registry office established under the Registry Act for each county in the Province that indicates that
aa transfer and vesting of real property under the order has occurred, and
ball title and interests in the real property that was transferred to the transferee under the order are now held in the name of the transferee.
50.3( 3) The notice referred to in subsection (2)
ashall be deemed to be an instrument for the purposes of the Land Titles Act and the Registry Act, and
bshall be in a form acceptable to the Registrar General and the Chief Registrar of Deeds.
50.3( 4) On receipt of the notice referred to in subsection (2),
athe registrar shall, despite section 18 of the Land Titles Act and despite any failure of the Corporation to comply with any provision of the Land Titles Act or any regulation under that Act,
( i) identify all the approved parcel identifiers associated with the registered land indicated in the notice,
( ii) assign a registration number, date and time to the notice and enter a record of the notice, date, time and number in the instrument record,
( iii) enter a record of the acceptance of the notice for registration in the instrument record,
( iv) register the notice in respect of the registered land represented by the approved parcel identifiers referred to in subparagraph (i), and
( v) issue new certificates of registered ownership to the transferee in respect of all registered land with respect to which it is the registered owner or holds a registered leasehold interest, and
bdespite any failure of the Corporation to comply with any provision of the Registry Act or any regulation under that Act, the registrar for each county in the Province shall register the notice.
50.3( 5) Section 55 of the Land Titles Act and section 44 of the Registry Act do not apply to the registration of the notice referred to in subsection (2).
50.3( 6) No claim shall be made and no action or other proceeding lies or shall be instituted against the Minister, the Crown or the Corporation by reason of any prejudice suffered as a result of any delay in filing a notice under subsection (2).
Payment for transfer
50.31 A transfer order may
arequire a transferee to pay the Corporation for any asset that is transferred to it by or under the order,
bprovide for the method of calculating the amount payable for an asset that is transferred, and
c prescribe the manner and time of payment for an asset that is transferred.
Effective date of transfer
50.4 A transfer order may provide that a transfer shall be deemed to have taken effect on a date earlier than the date the transfer order is made, but the effective date shall not be earlier than the date of commencement of this section.
Certain rights not affected
50.41 A transfer effected under a transfer order shall be deemed
anot to constitute
( i) a breach, termination, repudiation or frustration of any contract,
( ii) a breach of any Act, regulation or local government by-law, or
( iii) an event of default or force majeure under any contract,
bnot to give rise to a breach, termination, repudiation or frustration of any licence, permit or other right,
cnot to give rise to any right to terminate or repudiate a contract, licence, permit or other right, and
dnot to give rise to any estoppel.
Proceedings barred
50.5( 1) No action or other proceeding lies or shall be instituted against the Minister, the Crown or the Corporation or any employee or agent of any of them, as a direct or indirect result of a transfer effected under a transfer order under section 50.1.
50.5( 2) Nothing in this Act or in a transfer effected under a transfer order creates a cause of action in favour of
aa holder of a security that was issued by the Corporation, or
ba party under a contract with the Corporation that was entered into before the effective date of the transfer order.
Conditions on exercise of powers
50.51 A transfer order may impose conditions on the exercise of powers by the transferee that are related to officers, employees, assets, liabilities, rights or obligations transferred by the transfer order.
Information
50.6 The Corporation shall provide a transferee with records or copies of records and other information, that are in its custody or control and that relate to an officer, employee, asset, liability, right or obligation that is transferred by or under a transfer order, including personal information.
Other matters
50.61 A transfer order may contain provisions dealing with other matters not specifically referred to in this Part that the Lieutenant-Governor in Council considers necessary or advisable in connection with a transfer.
Amendment of transfer order
50.7( 1) The Lieutenant-Governor in Council may, at any time within 24 months after making a transfer order, make a further order amending the transfer order in any way that the Lieutenant-Governor in Council considers necessary or advisable.
50.7( 2) Sections 50.1 to 50.61 apply, with the necessary modifications, to an amendment as if it were a transfer order.
Exemption from other Acts
50.8 Any Act or provision of an Act that is prescribed by regulation does not apply to a transfer effected by a transfer order under section 50.1.
Crown liability
50.9( 1) The liability of the Crown as guarantor of a security or other liability of the Corporation under a written guarantee given by the Crown before the effective date of a transfer order is not limited by anything in this Act or by any transfer effected by or under the transfer order.
50.9( 2) The liability of the Crown as principal of the Corporation with respect to liabilities and obligations entered into by the Corporation on the Crown’s behalf before the effective date of a transfer order is not limited by anything in this Act or by any transfer effected by or under the transfer order.
29 Section 74 of the Act is amended
aby repealing subsection (6);
bby repealing subsection (7).
30 Section 101 of the Act is amended
aby repealing subsection (1) and substituting the following:
101( 1) As part of an application made under section 103, the Corporation shall file with the Board a strategic, financial and capital investment plan that covers three consecutive fiscal years.
bby adding after subsection (1) the following:
101( 1.01) For the purposes of subsection (1), the strategic, financial and capital investment plan of the Corporation shall cover each fiscal year covered by the application and any subsequent fiscal year, as necessary, to amount to a total of three consecutive fiscal years.
101( 1.02) A strategic, financial and capital investment plan of the Corporation shall include the following:
aa schedule showing, for each fiscal year covered by the plan, each capital project contemplated by the Corporation that has a total projected capital cost of $50 million or more and the related projected annual capital expenditures for each such project;
ba schedule showing, for each fiscal year covered by the plan, the projected aggregate capital expenditures that relate to the capital projects contemplated by the Corporation that have a projected total capital cost of less than $50 million;
cthe revenue requirements of the Corporation for each fiscal year covered by the plan;
da projected balance sheet for the Corporation for each fiscal year covered by the plan;
ethe Corporation’s load and revenue forecast for each fiscal year covered by the plan;
fa schedule showing, for each fiscal year covered by the plan, the projected annual overall change in rates for sales of electricity within the Province, expressed as a percentage, that is necessary to meet the revenue requirements referred to in paragraph (c); and
gany other information that the Corporation considers relevant or that is ordered by the Board under subsection (2) to be included.
cby repealing subsection (1.1).
31 The heading “Rates” preceding section 103 of the Act is repealed and the following is substituted:
Rates – 2023-24 fiscal year and subsequent fiscal years
32 Section 103 of the Act is amended
aby repealing subsection (1) and substituting the following:
103( 1) Beginning with an application that covers the fiscal year commencing on April 1, 2023, the Corporation shall make an application to the Board for approval of the Corporation’s schedules of rates it proposes to charge for its services for each fiscal year, and may make an application to the Board for approval of the Corporation’s schedules of rates it proposes to charge for its services for a period encompassing more than one fiscal year, to a maximum of three fiscal years.
bby adding after subsection (1) the following:
103( 1.1) In an application made under subsection (1) that covers more than one fiscal year, the Corporation shall request Board approval of the Corporation’s schedules of rates it proposes to charge for its services for each fiscal year in the period to which the application relates.
103( 1.2) The Corporation may make an application under subsection (1) in relation to a fiscal year for which rates have already been approved or fixed by the Board under this section.
103( 1.3) If an application covers a fiscal year for which rates have already been approved or fixed by the Board under this section, the Board shall approve or fix the rates anew following a new hearing, and the procedure established in section 127 shall apply with any necessary modifications.
cby repealing subsection (2) and substituting the following:
103( 2) For each fiscal year to which an application made by the Corporation under subsection (1) relates, the application shall include, but not be limited to, the following:
athe Corporation’s projection of its load and revenue;
bthe Corporation’s revenue requirements; and
cthe Corporation’s schedules of rates it proposes to charge.
dby repealing paragraph (6)(a) and substituting the following:
afor each fiscal year to which the application relates, approve the rates applied for, if satisfied that they are just and reasonable or, if not so satisfied, fix other rates that it finds to be just and reasonable for each fiscal year,
eby adding after subsection (8) the following:
103( 9) This section does not apply to rate riders established under the regulations.
103( 10) Despite any other provision of this Act, in determining the revenue requirements of the Corporation and approving or fixing just and reasonable rates, the Board shall use
athe capital structure prescribed by regulation, if any,
bthe return on equity prescribed by regulation, if any, or a return on equity within a range prescribed by regulation, if any, and
cthe method of calculating the return on equity of the Corporation prescribed by regulation, if any.
33 Subsection 103.1(1) of the Act is amended by striking out “Despite subsection 103(1),” and substituting “Despite subsection 103(1), as it existed on December 18, 2020,”.
34 Section 105 of the Act is amended by adding after subsection (3) the following:
105( 4) This section does not apply to rate riders established under the regulations.
35 Section 107 of the Act is amended by adding after subsection (12) the following:
107( 13) The Board shall, on receipt of an application under this section, proceed under section 127.
36 Paragraph 117.1(c) of the Act is amended by striking out “, provided that these programs and initiatives are paid for by the Province”.
37 The Act is amended by adding after section 117.2 the following:
Division F
Regulatory Accounts
Energy Efficiency and Demand Response Deferral Account
117.3( 1) The Corporation shall establish an Energy Efficiency and Demand Response Deferral Account.
117.3( 2) The Corporation shall maintain the account in accordance with the operating parameters prescribed by regulation.
117.3( 3) The Corporation is required to maintain books and records necessary for maintaining the account.
117.3( 4) The Board shall ensure that the balance in the account
ais recovered by the Corporation in accordance with the regulations, and
bis reflected in the rates charged by the Corporation in respect of the services referred to in section 102.
Regulatory variance accounts
117.4( 1) The Corporation shall establish two regulatory variance accounts to record the following variances:
athe variance between the actual fuel and purchased power expenses in a fiscal year and those forecasted for that fiscal year; and
bthe variance between the actual electricity sales and margins in a fiscal year and those forecasted for that fiscal year.
117.4( 2) Subject to subsections (3) and (4), the Corporation shall maintain the accounts in accordance with the operating parameters prescribed by regulation.
117.4( 3) The calculation of the variance in each of the accounts shall be based on the revenue requirements of the Corporation on which rates were approved or fixed by the Board.
117.4( 4) Despite subsection (3), for the fiscal year commencing on April 1, 2022, the calculation of the variance in each of the accounts shall be based on the revenue requirements of the Corporation approved by the board of directors of the Corporation.
117.4( 5) Once approved by its board of directors, the Corporation shall file the Corporation’s revenue requirements referred to in subsection (4) with the Board.
117.4( 6) Subject to a determination made by the Board under the regulations, the variance in each of the accounts that is calculated in accordance with this section and the regulations shall be deemed to be prudent and necessary.
117.4( 7) The Corporation is required to maintain books and records necessary to record the variance in each of the accounts for each fiscal year.
117.4( 8) The Board shall ensure that the balance in each of the accounts is
arecovered by the Corporation or reimbursed to customers in accordance with the regulations, and
breflected in a rate rider established under the regulations.
Other regulatory accounts
117.5( 1) In this section, “generally accepted public utility practice” means generally accepted public utility practice as defined in the Gas Distribution Act, 1999.
117.5( 2) The Board may, in accordance with generally accepted public utility practice, make an order permitting the Corporation to establish a regulatory variance account or regulatory deferral account, for the purpose of ensuring the recovery of prudently incurred costs of the Corporation and that the rate impact of the costs is minimized.
117.5( 3) The Board shall authorize the recovery of the balance of any regulatory variance account or regulatory deferral account established in an order made under subsection (2) in any manner it considers appropriate, including determining the period during which the balance is to be recovered and the amounts to be included in the revenue requirements of the Corporation in any fiscal year.
38 Subsection 127(1) of the Act is amended by striking out “section 103, 105, 113” and substituting “section 103, 105, 107, 113”.
39 The Act is amended by adding after section 139 the following:
Refurbishment of Mactaquac Generating Station
139.1( 1) In this section, “project” means the project in which the Corporation replaces the ancillary services, energy and capacity provided by the Mactaquac Generating Station, and includes any replacement, refurbishment, maintenance or decommissioning of the station, and any construction of new generation and transmission assets to replace the ancillary services, energy and capacity.
139.1( 2) Section 107 does not apply to the project.
139.1( 3) The Lieutenant-Governor in Council may approve the project subject to any terms and conditions that the Lieutenant-Governor in Council considers appropriate.
139.1( 4) If the project is approved under subsection (3), the project shall be deemed to be prudent and the costs and expenses of the project shall be deemed to be prudent and necessary to carry out the project.
139.1( 5) If the project is approved under subsection (3), the Board shall ensure that the costs and expenses of the project are recovered by the Corporation and reflected in the rates charged by the Corporation in respect of the services referred to in section 102, and the recovery of those costs and expenses is deemed to be just and reasonable for purposes of section 103.
139.1( 6) Despite any other provision of this Act, the Corporation shall not incur, in relation to the project, capital expenditures in excess of an amount equal to 10% of the total projected capital costs of the project before the project has been approved under subsection (3).
40 Section 142 of the Act is amended
ain subsection (1)
( i) by repealing paragraph (a);
( ii) in paragraph (b) by striking out “subsection 15(7) or 23(7)” and substituting “subsection 2.12(7), 2.42(7), 15(7) or 23(7)”;
( iii) by adding after paragraph (b) the following:
b.01for the purposes of subsection 2.42(11), respecting circumstances in which the Lieutenant-Governor in Council may remove the President and Chief Executive Officer of the Holding Corporation from office;
( iv) in paragraph (b.1) by striking out “President and Chief Executive Officer” and substituting “President and Chief Executive Officer of the Corporation”;
( v) by adding after paragraph (e) the following:
e.1prescribing Acts or provisions of Acts that do not apply to a transfer effected under a transfer order under section 50.1, subject to any conditions or restrictions prescribed by the regulations;
( vi) by adding after paragraph (f) the following:
f.1for the purposes of subsection 103(10), prescribing a capital structure of the Corporation to be used by the Board for the purposes of determining the Corporation’s revenue requirements and approving or fixing just and reasonable rates;
f.2for the purposes of subsection 103(10), prescribing a return on equity or a range of return on equity for the purposes of determining the Corporation’s revenue requirements and approving or fixing just and reasonable rates;
f.3for the purposes of subsection 103(10), prescribing a method of calculating the return on equity of the Corporation for the purposes of determining the Corporation’s revenue requirements and approving or fixing just and reasonable rates;
( vii) by repealing paragraph (g);
( viii) by adding after paragraph (i) the following:
i.1for the purposes of section 117.3, respecting the Energy Efficiency and Demand Response Deferral Account, including, without limitation,
( i) the operating parameters for the account, including
( A) qualifying costs to be recorded in the account,
( B) applicable accounting methods,
( C) the method of calculating qualifying costs and the deductions to be made in calculating the costs, and
( D) rules for the application of financing costs to the account balance,
( ii) the recovery of the balance of the account, including
( A) any applicable amortization period, and
( B) the method of recovery from the rates charged by the Corporation, and
( iii) auditing and oversight requirements;
i.2for the purposes of section 117.4, respecting each of the regulatory variance accounts, including, without limitation,
( i) their operating parameters, including
( A) applicable accounting methods,
( B) the method of calculating the variances, including the inclusion or exclusion of any particular cost or revenue, and incentive thresholds or performance incentives that are considered in the calculation of the variances, and
( C) rules for the application of financing costs to the account balances,
( ii) auditing and oversight requirements, including the review of audits by the Board and the approval or revision of the variances by the Board,
( iii) the recovery of the balance of each account from customers and the reimbursement of the balance to customers, including
( A) the time period for recovery or reimbursement and the calculation methods that apply,
( B) the establishment of rate riders, and
( C) the establishment of a minimum and maximum recovery threshold and a minimum and maximum reimbursement threshold,
( iv) the allocation of the balance of each account among the various rate classes, and
( v) filing and reporting requirements;
( ix) in paragraph (s), by striking out ““distributed generation” and “net metering” and” and substituting ““distributed generation”, “net metering” and “qualifying costs” and”;
bin subsection (4) by striking out “paragraph (1)(a) or (c)” and substituting “paragraph 1(c)”;
cby adding after subsection (5) the following:
142( 5.1) In a regulation made under paragraph (1)(i.1) or (i.2), the Lieutenant-Governor in Council may
adelegate a matter to the Board, and
bconfer a discretion on the Board.
CONSEQUENTIAL AMENDMENTS
Regulations under the Electricity Act
41( 1) New Brunswick Regulation 2013-66 under the Electricity Act is amended
ain section 4 by repealing the definition “previous definition of bulk power system”;
bby repealing the heading “System elements” preceding section 22;
cby repealing section 22;
dby repealing the heading “TRANSITIONAL” preceding section 23;
eby repealing the heading “No orders” preceding section 23;
fby repealing section 23.
41( 2) New Brunswick Regulation 2013-67 under the Electricity Act is amended
aby repealing the heading “Prescribed date” preceding section 4;
bby repealing section 4.
TRANSITIONAL AND COMMENCEMENT
No filing of strategic, financial and capital investment plan
42 Despite subsection 101(1) of the Electricity Act, as that subsection existed on September 1, 2021, the New Brunswick Power Corporation shall not file a strategic, financial and capital investment plan covering the period of 10 fiscal years commencing on April 1, 2022, and ending on March 31, 2032.
No application for rate approval
43 Despite subsection 103(1) of the Electricity Act, as that subsection existed on September 1, 2021, the New Brunswick Power Corporation shall not make an application to the New Brunswick Energy and Utilities Board for approval of the New Brunswick Power Corporation’s schedules of rates it proposes to charge for its services referred to in section 102 of that Act for the fiscal year which commences on April 1, 2022.
Rates – 2022-2023 fiscal year
44( 1) For the fiscal year which commences on April 1, 2022, the New Brunswick Power Corporation may impose, across all rate classes, a uniform increase of not more than 2% in the rates it charges for the services referred to in section 102 of the Electricity Act without making an application to the New Brunswick Energy and Utilities Board for approval of the increase.
44( 2) The New Brunswick Power Corporation shall file new schedules of rates for its services referred to in section 102 of the Electricity Act with the New Brunswick Energy and Utilities Board within 30 days before any increase in the rates is made under subsection (1).
44( 3) When filing new schedules with the New Brunswick Energy and Utilities Board in relation to any increase in the rates under subsection (1), the New Brunswick Power Corporation shall include in the schedules the date the authorization was given by the board of directors of the New Brunswick Power Corporation to increase the rates.
44( 4) For the purposes of the Electricity Act, an increase in rates made under subsection (1) shall be deemed to be approved by the New Brunswick Energy and Utilities Board under Division B of Part 6 of that Act.
Commencement
45( 1) Paragraphs 1(a), (b), (c), (d), (e) and (g) and 32(e) and sections 2 to 29, 34, 37, 40 and 41 of this Act come into force on April 1, 2022.
45( 2) Sections 42, 43 and 44 of this Act shall be deemed to have come into force on September 1, 2021.