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Statutes of Newfoundland 1995


CHAPTER 37

CHAPTER 37

AN ACT TO AMEND THE HYDRO CORPORATION ACT, THE ELECTRICAL POWER CONTROL ACT, 1994 AND OTHER ACTS

(Assented to December 21, 1995)

Analysis

HYDRO CORPORATION ACT

1. S.5(4) Amdt.
Board of directors

2. S.6(3) R&S
President and chairperson

3. S.8(1) Amdt.
Service contract

4. S.10 Amdt.
By-laws

5. S.14 Rep.
Franchise

6. S.16(1)(h) R&S
General powers

7. Ss. R&S
17. Accounting methods & stabilization plan
18. Pensions
19. Labour Relations Act to apply Ss. Rep
20. Crown Lands Act not to apply
21. Public Utilities Act not to apply

8. Ss. Rep.
22. Collective Bargaining Act
23. Purchase of petroleum

9. S.25(1) R&S
Share capital

10. S.26 Rep.
Grant of franchise

11. S.40(2) Rep.
Capital and operating

12. S.41(3) R&S
Financial statement

13. Ss. Rep.
44(3), (4) & (6) Actions
45. Change of frequency
46. Powers of corporation
47. Limitation of actions
48. No right of action
49. Inspection of wiring
50. Power cut-off

14. Sections continue to apply

ELECTRICAL POWER
CONTROL ACT, 1994

15. S.3(e) Rep.
Power policy

16. S.5.1 added
Direction to board

17. S.23(7) R&S
Corporate ownership and control

18. S.29 Rep.
Power to make payments

19. S.32(2)(c) Rep.
Regulations

CROWN LANDS ACT

20. S.50(4) Rep.
Assurances

21. FREEDOM OF INFORMATION ACT
Sch. Amdt.

22. PROVINCIAL PREFERENCE ACT
S.2(a) Amdt.
Definitions

23. PUBLIC TENDER ACT
S.2(b) Amdt.
Definitions
Sch. Amdt.

24. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

HYDRO CORPORATION ACT


RSN1990 cH-16 as amended

1. Subsection 5(4) of the Hydro Corporation Act is amended by striking out the words "that the Lieutenant-Governor in Council determines" and by substituting the words "that the shareholders determine by a special resolution".

2. Subsection 6(3) of the Act is repealed and the following substituted:

(3) There shall be a chief executive officer of the corporation, to be appointed by the shareholders by a special resolution, who shall, subject to the terms of appointment that may be established by the shareholders by a special resolution or in an agreement made under section 8, and subject to the directions of the board, be charged with the general direction, supervision and control of the business of the board and the corporation.

3. Subsection 8(1) of the Act is amended by striking out the words "the Lieutenant-Governor in Council" and by substituting the words "the shareholders by a special resolution".

4. Section 10 of the Act is amended by striking out the words and comma "Subject to the approval of the Lieutenant-Governor in Council, the board may make by-laws" and by substituting the words "The board may make by-laws".

5. Section 14 of the Act is repealed.

6. Paragraph 16(1)(h) of the Act is repealed and the following substituted:

(h) deposit money or securities with a bank, trustee, trust company, or other depositary in Canada or outside of Canada;

7. Sections 17, 18, 19, 20 and 21 of the Act are repealed and the following substituted:

Accounting methods and rate stabilization plan

17. (1) The corporation shall

(a) adopt and maintain the depreciation and amortization policies of the corporation that have been recommended by the Board of Commissioners of Public Utilities and that are reflected in the audited financial statements of the corporation for the year ended December 31, 1994; and

(b) adopt and maintain the rate stabilization plan of the corporation on the basis reflected in the audited financial statements of the corporation for the year ended December 31, 1994,

until the Board of Commissioners of Public Utilities otherwise orders under the Public Utilities Act.

(2) For all purposes of the Public Utilities Act, the rate base of the corporation shall include the property and assets of the corporation at their net book value but excludes investments in subsidiaries of the corporation.

(3) For all purposes of the Public Utilities Act, the expenses chargeable to operating account by the corporation shall include

(a) an amount equal to all liabilities of the corporation under the Hydro Pension Plan as assumed under the agreement referred to in paragraph 18(3)(a) to the extent not funded by the transfer of assets of the PSPP or by a debt or obligation of the Crown under the agreement referred to in paragraph 18(3)(a) and interest for the period from the date of proclamation of this section to the date on which amortization commences under paragraph (d);

(b) an amount equal to the difference between the amount at which an indebtedness of the corporation which is denominated in a foreign currency is shown in the audited financial statements of the corporation for the year ending December 31, 1994, and the cost to the corporation, in Canadian dollars, of foreign currencies purchased from time to time by the corporation and used by the corporation to repay all or part of such indebtedness; and

(c) all amounts paid by the corporation for non-utility generation totalling approximately 38 megawatts under agreements entered into with up to 4 persons that submitted proposals under the corporation's Request for Proposals 92-195,

in each case, except in the case of paragraph (c), as amortized on a consistent basis and over the following periods:

(d) in the case of paragraph (a), 15 years commencing on the later of January 1, 1996 and the beginning of the year when the corporation's rates are first altered under the Public Utilities Act in which the amortization is included in rates at a rate hearing; and

(e) in the case of paragraph (b), 40 years commencing in the year when the corporation's rates are first altered under the Public Utilities Act in which the amortization is included in rates at a rate hearing.

(4) The expenses and amortization provided for in subsection (3) shall be considered to be reasonable and prudent and properly chargeable to operating account for all purposes of the Public Utilities Act, including subsection 80(2) of that Act.

(5) The rates, tolls and charges for, and the rules applicable to, each kind of service provided or supplied directly or indirectly to or for the public immediately prior to the coming into force of this section or a corporation by the corporation immediately prior to the coming into force of this section shall apply to the same kind of service so provided or supplied by the corporation until altered under the Public Utilities Act and, notwithstanding that Act, no alteration shall have retroactive effect on those rates, tolls or charges or increases, including by providing for refunds or credits to customers.

(6) The capital budget of the corporation for the period ending December 31, 1996 and any other construction work in progress as approved by the board of directors of the corporation, shall be considered to be approved by the Board of Commissioners of Public Utilities under section 41 of the Public Utilities Act, and for all other purposes of that Act, in respect of the corporation.

(7) Until such time as the Board of Commissioners of Public Utilities approves the rules and regulations which relate to the corporation's service under section 71 of the Public Utilities Act, a contract for the supply by the corporation of electricity is considered to provide that the corporation is not liable for damages in respect of any delay, interruption or other partial or complete failure in that supply where those damages are caused by something which is beyond the reasonable control of the corporation.

(8) Where there is a conflict between this section and the provisions of the Public Utilities Act, the provisions of this section shall prevail.

Pensions

18. (1) In this section and subsection 17(3)

(a) "GMPP" means the Government Money Purchase Plan established under the Government Money Purchase Pension Plan Act;

(b) "Hydro Money Purchase Plan" means a registered defined contribution pension plan established and administered by the corporation and includes a plan in substitution of it;

(c) "Hydro Pension Plan" means a registered defined benefit pension plan established and administered by the corporation and includes a plan in substitution of it;

(d) "Pension Act" means the Public Service Pensions Act, 1991;

(e) "PSPP" means the Public Service Pension Plan established under the Pension Act;

(f) "transferred GMPP employees" means current employees who are members of the GMPP, and former employees of the corporation (other than persons who ceased to be employed by the corporation prior to retirement but continued to be entitled to accrue further benefits under the PSPP by virtue of subsequent employment with other than the corporation) who are receiving benefits or are entitled to deferred benefits from the GMPP, and spouses, dependants and other beneficiaries of those former employees; and

(g) "transferred PSPP employees" means current employees who are members of the PSPP and former employees of the corporation (other than persons who ceased to be employed by the corporation prior to retirement but continued to be entitled to accrue further benefits under the PSPP by virtue of subsequent employment with other than the corporation) who are receiving benefits or are entitled to deferred benefits from the PSPP, and spouses, dependants and other beneficiaries of those former employees.

(2) The corporation may, with the approval of the Minister of Finance, establish

(a) the Hydro Pension Plan and the Hydro Pension Plan, where established, shall accept the transfer of all benefits accrued to the date of proclamation of this section under the PSPP on behalf of transferred PSPP employees; and

(b) the Hydro Money Purchase Plan and the Hydro Money Purchase Plan shall, where established, accept the value of all assets accrued to the date of proclamation of this section under the GMPP on behalf of the transferred GMPP employees.

(3) The Minister of Finance may

(a) enter into an agreement with the corporation to provide for the transfer to and assumption by the Hydro Pension Plan of the assets and liabilities of the PSPP with respect to the transferred PSPP employees on those terms, as to funding of liabilities assumed by the Hydro Pension Plan, that the minister and the corporation may agree and upon the transfer, all liabilities with respect to pension benefits of the transferred PSPP employees shall be the liabilities of the corporation and the Hydro Pension Plan; and

(b) enter into an agreement with the corporation to provide for the transfer to the Hydro Money Purchase Plan of the assets of the GMPP with respect to the transferred GMPP employees on those terms that the minister and the corporation may agree and upon the transfer, all liabilities with respect to pension benefits of the transferred GMPP employees shall be the liabilities of the corporation and the Hydro Money Purchase Plan.

(4) The agreement entered into between the Minister of Finance and the corporation in accordance with paragraph (3)(a) may provide for an instrument of the Crown to fund in whole or in part liabilities assumed by the Hydro Pension Plan and the minister may pay out of the Consolidated Revenue Fund those amounts that are necessary to service or discharge the obligations of the Crown under that instrument.

(5) The instrument of the Crown described in subsection (4) is considered for all purposes of the Pension Benefits Act, the regulations under it and all other applicable requirements of law to be a permissible investment and to be valued on any date at its principal face value plus compound interest accrued to that date and after giving effect to all adjustments which had been made under the instrument prior to that date.

(6) An agreement entered into between the Minister of Finance and the corporation in accordance with paragraph (3)(a) may provide for a portion of the liability to be assumed by the Hydro Pension Plan to be funded over a period of time in excess of that permitted under the Pension Benefits Act and the regulations under it and, in that event, that longer funding period shall be considered to be permitted under the Pension Benefits Act and the regulations made under it.

(7) The requirements for acceptances, certificates, notices, consents or approvals in respect of the obligations and agreements described in this section including the consent and approval of the Superintendent of Pensions under the Pension Benefits Act, are waived.

(8) Where there is conflict between this section and the provisions of the Pension Benefits Act, the provisions of this section shall prevail.

Labour Relations Act to apply

19. (1) The Labour Relations Act applies to the corporation.

(2) All collective bargaining agreements and other agreements of the corporation with a trade union, council of trade unions, employee bargaining agent or affiliated bargaining agent shall continue in force as if made under the Labour Relations Act.

(3) A trade union, council of trade unions, employee bargaining agent or affiliated bargaining agent that is party to a collective bargaining agreement with the corporation under subsection (2) shall be considered to be certified for the purpose of the Labour Relations Act.

(4) Section 11.1 of the Public Sector Restraint Act, 1992 applies to the corporation and its employees.

(5) For the purpose of section 22 of the Electrical Power Control Act, 1994, the Order of the Labour Relations Board under the Public Service Collective Bargaining Act dealing with essential employees of the corporation dated August 23, 1989 which bound the corporation and Local 1615 of the International Brotherhood of Electrical Workers shall be considered to be an order of the public utilities board under section 22 in respect of the corporation, and that order may be amended by the public utilities board as if it were an order made by it.

8. Sections 22 and 23 of the Act are repealed.

9. Subsection 25(1) of the Act is repealed and the following substituted:

Share capital

25. (1) The shareholders by special resolution may establish authorized share capital for the corporation in the amounts and consisting of those common shares, with or without par value, and the preferred shares with the rights, restrictions, redemption privileges, conditions or limitations, that the shareholders may consider desirable.

10. Section 26 of the Act is repealed.

11. Subsection 40(2) of the Act is repealed.

12. Subsection 41(3) of the Act is repealed and the following substituted:

(3) The annual financial statement of the corporation shall be audited by a firm of auditors.

13. Subsections 44(3), (4) and (6) and sections 45, 46, 47, 48, 49 and 50 of the Act are repealed.

Sections continue to apply

14. Section 47 and subsection 48(2) of the Act shall continue to apply, notwithstanding their repeal, to and for the benefit of the corporation in respect of a cause of action, claim or liability against the corporation existing on the date of proclamation of this section.

ELECTRICAL POWER CONTROL ACT, 1994

15. Paragraph 3(e) of the Electrical Power Control Act, 1994 is repealed.

16. The Act is amended by adding immediately after section 5 the following:

Direction to board

5.1 Notwithstanding section 3 and section 4 of the Act and the provisions of the Public Utilities Act, the Lieutenant-Governor in Council may direct the public utilities board with respect to the policies and procedures to be implemented by the board with respect to the determination of rate structures of public utilities under the Public Utilities Act and, without limiting the generality of the foregoing, including direction on the setting and subsidization of rural rates, the fixing of a debt-equity ratio for Hydro and the phase in, over a period of years from the date of coming into force of this section, of a rate of return determination for Hydro and the board shall implement those policies and procedures.

17. Subsection 23(7) of the Act is repealed and the following substituted:

(7) Notwithstanding sections 99 to 102 of the Public Utilities Act, within 30 days after a decision of the public utilities board under this section, the Lieutenant-Governor in Council may review the decision and allow or disallow the proposed acquisition, holding or beneficial ownership and the decision by the Lieutenant-Governor in Council is binding on all persons affected by it.

18. Section 29 of the Act is repealed.

19. Paragraph 32(2)(c) of the Act is repealed.

CROWN LANDS ACT

20. Subsection 50(4) of the Crown Lands Act is repealed.

FREEDOM OF INFORMATION ACT

21. The Schedule to the Freedom of Information Act is amended by deleting the words "The Newfoundland and Labrador Hydro Corporation".

PROVINCIAL PREFERENCE ACT

22. (1) Paragraph 2(a) of the Provincial Preference Act is amended by adding immediately after subparagraph (ix) the following:

(ix.1) Newfoundland and Labrador Hydro, and

(2) The Schedule to the Act is amended by deleting the words "Newfoundland and Labrador Hydro".

PUBLIC TENDER ACT

23. (1) Paragraph 2(b) of the Public Tender Act is amended by striking out the semicolon at the end of subparagraph (viii) and by substituting a comma and by adding immediately after subparagraph (viii) the following:

but does not include

(ix) Newfoundland and Labrador Hydro;

(2) The Schedule to the Act is amended by deleting the words "Newfoundland and Labrador Hydro".

Commencement

24. This Act or a section or subsection of it comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.

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