Yes. Although both the British Columbia Energy Regulator and ERAT are established by, and answerable to, the Cabinet in British Columbia, the ERAT is independent of the BC Energy Regulator. This ensures that appeals are conducted by an independent and fair manner. Because the ERAT is not part of the BC Energy Commission, it does not have any information about the decision unless that is provided by a party to the appeal. This includes any documents considered by the original decision-maker or any follow-up documents.
No, although parties to appeal may use lawyers or other representatives to act as a spokesperson if they wish.
The ERAT will review the Notice of Appeal for any obvious concerns about the appellant’s ability to file the appeal. Examples of concerns are that the decision is not appealable to the ERAT, the appellant does not have the authority to appeal the decision in question, the appeal was not filed before an applicable deadline, or that the outcome requested by the appellant is not within the authority of the ERAT to grant.
If the ERAT identifies any obvious concerns, it will describe those concerns to the appellant, and give the appellant the chance to clarify facts or argue that the appeal should proceed.
If the ERAT concludes that there are no obvious concerns that have not been addressed, it notifies the decision-maker whose decision has been appealed. The ERAT will ask the decision-maker to identify any potentially affected third parties so that the ERAT can invite them to participate in the appeal, if appropriate.
It depends. A decision is effective while an appeal is underway, unless the decision is stayed. A stay prevents the decision from taking effect until after the appeal is decided.
The ERAT may order that any decision appealed to it stayed. In cases of administrative penalties, the decision is automatically stayed, unless the ERAT orders otherwise. All other decisions, when appealed, are only stayed if ERAT orders that they are stayed.
Those who appeal a decision and the person who made the decision have the right to participate as parties to the appeal. Parties have full rights to participate in the appeal process, including rights to present evidence, argue for a particular outcome, decide whether to allow the appeal to be settled without an appeal, and make preliminary applications (such as for stays or other preliminary relief that the ERAT can provide).
The ERAT may also recognize certain people or organizations as Third Parties, where those people may be affected by its decision. For example, if the British Columbia Energy Regulator issues a permit that allows a corporation to install an underground pipeline through a land owner’s property, and the land owner appeals that permit to the ERAT, the ERAT will recognize the corporation as a Third Party.
The ERAT may also recognize interveners. To do so, the ERAT must be satisfied that the intervener can bring a valuable contribution or bring a valuable perspective to the appeal, with the contribution or perspective outweighing any prejudice to the parties that results from including the intervener.
Interveners have some, but not all rights of a party, and may be involved with an appeal where the ERAT considers that they have valuable information or a valuable perspective on the subject of the appeal, or where they face significant, direct impact from the decision under appeal. Often, interveners are given the opportunity to make submissions (arguments about what the ERAT should do with the appeal and why). Less often, they may be allowed to call evidence or even to cross-examine witnesses in the appeal. The ERAT determines the level of participation on a case-by-case basis.
The Chair of the ERAT assigns panels to various appeals. Panels are made up of one or three members. In the case of three members, the appeal may be decided by a two-thirds majority of panel members. Sometimes, the Chair is, or is on, a panel. When assigning appeals to members, the Chair considers various factors, including the expertise required by the appeals and the availability of members to act as, or form part of, a panel in any given case.
Hearings are likely to be held in writing where there are no significant factual disputes, significant issues of credibility, and where the appeal process can still be fair if it is held through written submissions. Otherwise, hearings likely take place in a live format, where statements are made and evidence is presented to the panel that will decide the appeal. This is called an oral hearing, and may be done by videoconferencing or in person, depending on the particulars of the case and the needs of the parties.
If an in-person hearing is held, it is usually held in the area where the appeal arose. The parties can ask for the hearing to take place elsewhere, however.
If you would like to change the date of a hearing or a deadline, such as when written submissions are due on an appeal, you should write to the ERAT once you know of this need. Explain why you need the date of the hearing or deadline changed, and advise to when you would like the hearing or deadline moved. The ERAT will consider all the relevant circumstances and decide whether to grant your request.
As part of its ordinary process, the ERAT will typically have the decision-maker provide the record of their decision. This includes the decision letter and documents reviewed in order to make the decision. There may be other information that a party or intervener in an appeal wants, however.
The first step when seeking additional information is to ask for the information to be provided voluntarily. In many cases, this could resolve the issue, as all information to be submitted as evidence must be provided to the other parties and interveners. If the person with possession or control of the “document or other thing” refuses, the requesting person can ask the ERAT for an order requiring that the “document or other thing” be provided. For more information, please consult Section 10 of the ERAT’s Practice and Procedure Manual.
While some parties choose to request information from public bodies through the Freedom of Information and Protection of Privacy Act, the ERAT does not recommend doing so. Applications under that act are based on a separate legal framework and may not provide all information that could be available through an order by the ERAT.
Please note, the ERAT cannot order a person to grant access to property to another person.
If someone misses a submission deadline or the oral hearing, the ERAT writes to them and asks them to explain what happened. The ERAT will consider the circumstances, including whether the person could have provided advance notice, whether the circumstances did not allow for the person to reasonably meet the deadline or attend the hearing date scheduled, and the impact on the appeal process and (other) parties. The ERAT may retroactively adjust the date of the deadline or hearing, continue the appeal with or without further input from that person, or dismiss the appeal.
A member of the ERAT can only discuss an appeal with a party or intervener in the appeal if all parties and interveners are included in the discussion. The ERAT’s Rules require that anyone involved in an appeal who writes to the ERAT must copy the parties and interveners on anything sent. If they forget to do so and the ERAT is aware of it, the ERAT will remind them and share the correspondence between the parties and interveners.
After a decision is issued, the panel cannot clarify or otherwise address their decision, other than in writing, to amend the decision, to correct a clerical or typographical error; an accidental or inadvertent error, omission, or other mistake; or an arithmetical error made in a computation. Otherwise, the decision must “speak for itself” and anyone wishing to change the decision will need to request a judicial review from the Supreme Court of British Columbia.
Yes, you can withdraw your appeal by advising the ERAT in writing that you wish to do so. If you have settled your dispute and you want to have enforceable settlement terms, you may wish to apply for the ERAT to issue a consent order, which sets out the terms of the settlement, at the same time.
Whether the appeal is heard by way of written submissions or a live hearing, you will need to provide all information you want the ERAT to consider, including documents, diagrams, pictures, letters of support, etc. In a live hearing, witnesses can describe their experiences and understanding to the panel. In written submissions, this information is provided in written statements or affidavits. Do not assume that someone else will provide something, or that the panel will know something already. The ERAT relies on the parties to provide information relevant to an appeal; it does not seek evidence on its own.
Yes, for the most part. All evidence will need to be exchanged before the hearing takes place. First, the ERAT will ensure that all parties are satisfied that they have, or at least have had the opportunity to ask for, all relevant information that the ERAT could order to be disclosed. Then, the ERAT will ensure that any expert evidence is shared between the parties, before they are expected to submit evidence and make arguments to the ERAT.
In the case of an oral hearing, the parties and interveners will provide a Statement of Points, which is a summary of the evidence they will rely on and the arguments they will make in the hearing in advance, so that the other parties and interveners can prepare. Generally, the appellant’s Statement of Points must be provided 30 days before a hearing begins, and other parties’ Statements of Points must be provided 15 days beforehand. The ERAT will confirm the timeframes that apply in any given case, however.