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RSNL1990 CHAPTER P-47

PUBLIC UTILITIES ACT

Amended:

1992 c6 s1; 1992 c48 s21; 1996 cR-10.1 s61; 1997 c13 s59; 1997 c45; 1998 c29; 1999 c32; 2000 c3; 2001 cN-3.1 s2; 2004 cL-3.1 s58; 2006 c24

CHAPTER P-47

AN ACT RELATING TO PUBLIC UTILITIES

Analysis


       
1.   Short title

       
2.   Interpretation

       
3.   Act not to apply to small projects

     
3.1   Exemption from Act

       
4.   Application of Act

     
4.1   Exemption

     
4.2   Labrador Inuit rights

       
5.   Rep. by 1998 c29 s2

       
6.   Appointment of board of commissioners and staff

     
6.1   Powers and duties of chairperson and chief executive officer

       
7.   Restrictions

       
8.   Interim commissioner

       
9.   When commissioner not disqualified

     
10.   Powers of vice-chairperson

     
11.   Quorum

     
12.   Vacancy

     
13.   Board's expenses

     
14.   Payment of assessment

     
15.   Budget

     
16.   General powers of board

     
17.   Inquiry by board

     
18.   Annual report

     
19.   Rep. by 1998 c29 s8

     
20.   Regulations re practice

     
21.   Board policy

     
22.   Board may prescribe forms

     
23.   Copies of orders

     
24.   Delegation of powers

     
25.   Powers of the board

     
26.   Type of currency

     
27.   Authorization to borrow money

     
28.   Guarantee of loans

     
29.   Endorsement on bonds or debentures

     
30.   Guarantee of interest, premium and sinking fund payments

     
31.   Further respecting guarantee

     
32.   Temporary loans

     
33.   Agreements

     
34.   Performance under guarantee

     
35.   Government may purchase securities of board

     
36.   Office of public utility

     
37.   Adequate service to be provided by public utility

     
38.   Abandonment

     
39.   Construction or extension in territory otherwise served notice

     
40.   Removal of works constructed

     
41.   Capital budget of public utility

     
42.   Interference with other utility

     
43.   Voltage and frequency

     
44.   Maintenance equipment on customer's premises

     
45.   Officer may enter premises

     
46.   Right to discontinue service

     
47.   Appeal

     
48.   Restriction of sale

     
49.   Assignment of franchise

     
50.   Restriction on application of sections 48 and 49

     
51.   Rep. by 1998 c29 s12

     
52.   Rep. by 1998 c29 s12

     
53.   Use of poles, etc. by other utility, etc.

     
54.   Duty of power company to supply electrical energy

     
55.   Board may order power company to supply electrical energy

     
56.   Erection of structures in municipalities

     
57.   Complaint of utility

     
58.   Form of records may be prescribed

     
59.   Financial year

     
60.   Inspection of records

     
61.   Audit

     
62.   Information to be supplied

     
63.   Power to compel attendance

     
64.   Valuation by board

     
65.   Cost of valuation

     
66.   Information to be provided

     
67.   Accounts, etc. to be provided

     
68.   Depreciation

     
69.   Establishment of depreciation account

     
70.   Compensation for services

     
71.   Approval of changes in rates

     
72.   Rates to be posted

     
73.   Equality of rates

     
74.   Forms of schedule may be altered

     
75.   Interim order

     
76.   Board may rescind or amend order fixing rates

     
77.   Incidental sale of services to public

     
78.   Rate base

     
79.   Utilities supplying more than 1 type of service

     
80.   Annual earnings

     
81.   Rate base in respect of water and sewage systems

     
82.   Investigation by board

     
83.   Board may recommend legislation

     
84.   Power and procedure of board upon complaint

     
85.   Notice to public utility

     
86.   Notice of hearing

     
87.   Powers of board when rates found unjust

     
88.   Formal hearing

     
89.   Notice of formal hearing

     
90.   Costs

     
91.   Approval of security issues

     
92.   Division of surplus profits

     
93.   Powers of commissioners

     
94.   Effect of judgment of courts

     
95.   Jurisdiction not affected by pending suit

     
96.   Evidence taken as in Supreme Court

     
97.   Record of proceedings to be kept

     
98.   Obligation to testify

     
99.   Appeal from decision of board

   
100.   Procedure on appeal

   
101.   Stated case

   
102.   Court to determine questions of law

   
103.   Disobedience of order of board

   
104.   Penalty for false statement

   
105.   Penalty for unjust discrimination

   
106.   Penalty for accepting unauthorized compensation

   
107.   Penalty for undue preference or prejudice

   
108.   Penalty for soliciting or receiving rebate

   
109.   Penalty for failure to complete forms

   
110.   Penalty for destruction of apparatus of board

   
111.   General penalty

   
112.   Separate offence

   
113.   Enforcement of penalties

   
114.   Rep. by 1996 cR-10.1 s61

   
115.   Establishment of pension scheme for commissioners

   
116.   Rep. by 1996 cR-10.1 s61

   
117.   Consumer advocate

   
118.   Act to be liberally construed

   
119.   This Act to prevail


Short title

        1. This Act may be cited as the Public Utilities Act.

1989 c37 s1

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Interpretation

        2. (1) In this Act

             (a)  "board" means the Board of Commissioners of Public Utilities;

             (b)  "commissioner" means a member of the board;

             (c)  "extension" includes a reasonable extension of the service and facilities of a public utility;

             (d)  "net income" means money available for dividends and surplus, according to the accounts prescribed by the board and required to be kept by public utilities;

             (e)  "public utility" means a person, firm or corporation that owns, operates, manages or controls in this province equipment or facilities for

                      (i)  [Rep. by 1998 c29 s1]

                     (ii)  the production, generation, storage, transmission, delivery, or providing of electric power or energy, water or heat either directly or indirectly to or for the public or a corporation for compensation,

                    (iii)  the collection, storage, transmission, delivery or providing of water through mains directly or indirectly to or for the public or a corporation for compensation,

                    (iv)  the collection, treatment or disposal of sewage through mains, directly or indirectly, for or from the public or a corporation, for compensation;

              (f)  "service" includes the use and accommodation given to consumers or patrons, and a product or commodity provided by a public utility, and also includes, unless the context otherwise requires the plant, equipment, apparatus, appliances, property and facilities employed by or in connection with a public utility in performing a service or in providing a product or commodity and devoted to the purpose in which the public utility is engaged and to the use and accommodation of the public and in the case of a public utility supplying electric energy to another public utility for distribution to the public, the 2nd or distributing public utility shall be a consumer for the purposes of this definition;

             (g)  "shareholder" means the holder of common or ordinary shares;

             (h)  "shares" means common or ordinary shares; and

              (i)  "telecommunications" means a transmission, emission or reception of signs, signals, writing, images, sounds, data, messages or intelligence by wire, radio-communication, cable, waves or electronic, electromagnetic or optical means.

             (2)  [Rep. by 1998 c29 s1]

1989 c37 s2; 1998 c29 s1

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Act not to apply to small projects

        3. This Act does not apply to a public utility where

             (a)  the public utility becomes a public utility after April 30, 1987 ; and

             (b)  the total installed generating capacity of the public utility at each location within the province at which the public utility has equipment or facilities located is less than 1,000 kilowatts.

1989 c37 s3

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Exemption from Act

      3.1 (1) Notwithstanding section 3, this Act does not apply to a public utility which generates electricity and sells it to a public utility to which this Act applies.

             (2)  Subsection (1) does not apply to

             (a)  a corporation which is the holding company of a public utility regulated by this Act or a subsidiary, an affiliate or associate of that holding company; or

             (b)  a subsidiary, an affiliate or associate of a public utility regulated by this Act.

          (2.1)  Subsection (1) shall not apply to the Newfoundland and Labrador Hydro-Electric Corporation, the Newfoundland Light & Power Co. Limited and the Deer Lake Power Company Ltd. and notwithstanding paragraph (2)(a), subsection (1) applies to the Corner Brook Pulp and Paper Limited.

             (3)  In subsection (2) the word "associate" has the meaning assigned to it by paragraph 2(1)(d) of The Corporations Act.

             (4)  Sections 10, 11 and 12 of The Corporations Act apply to determine when a corporation is a subsidiary or an affiliate of another corporation for the purposes of subsection (2).

1992 c6 s1; 1997 c45 s1

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Application of Act

        4. (1) This Act applies only to public utilities that are subject to the legislative authority of the province.

             (2)  In the case of a public utility which provides a class of service in respect of which it is not subject to the legislative authority of the province, nothing in this section shall make this Act inapplicable to the public utility in respect of another class of service provided, in respect of which it is subject to the legislative authority of the province.

1989 c37 s4

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Exemption

      4.1 The Lieutenant-Governor in Council may exempt a public utility from the application of all or a portion of this Act where the public utility is engaged in activities that in the opinion of the Lieutenant-Governor in Council as a matter of public convenience or general policy are in the best interest of the province, to the extent of its engagement in those activities.

1999 c32 s2

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Labrador Inuit rights

      4.2 This Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act, the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act.

2004 cL-3.1 s58

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Rep. by 1998 c29 s2

        5. [Rep. by 1998 c29 s2]

1998 c29 s2

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Appointment of board of commissioners and staff

        6. (1) The corporation known as the Board of Commissioners of Public Utilities is continued.

             (2)  The board shall consist of 4 full-time commissioners appointed by the Lieutenant-Governor in Council.

             (3)  In making appointments under subsection (2) the Lieutenant-Governor in Council shall take into consideration the need of the board to be composed of commissioners who have expertise in law, engineering, accountancy or finance.

             (4)  The Lieutenant-Governor in Council shall designate one of the commissioners as chairperson, and another as vice-chairperson.

             (5)  The Lieutenant-Governor in Council shall set the terms and conditions of the appointment of a commissioner.

             (6)  The board shall appoint a board secretary and shall set the terms and conditions of the appointment.

             (7)  The board secretary shall keep a full record of the proceedings of the board and serve the notices and perform the duties that the board may require.

             (8)  The commissioners and the board secretary shall be sworn or affirmed to the faithful performance of the duties of their respective offices before entering upon the discharge of those duties.

             (9)  Each commissioner shall be appointed for a term of 10 years to hold office during good behaviour.

           (10)  A commissioner is eligible to be appointed for a second term of 10 years.

           (11)  Unless otherwise directed by the Lieutenant-Governor in Council, a commissioner shall cease to hold office upon reaching the age of 70 years.

           (12)  The board may employ legal counsel, accountants, engineers, stenographers or other persons that it may require or consider advisable for the purpose of carrying out this Act, and the wages, salaries or compensation of those persons shall be paid by the board and shall form part of the annual expenses of the board.

           (13)  An action or other proceeding does not lie against the board or a member, officer or employee of the board for anything done or omitted to be done in good faith in the course of carrying out its or his or her duties under this Act.

2006 c24 s1

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Powers and duties of chairperson and chief executive officer

      6.1 (1) The chairperson shall be the chief executive officer of the board and shall have full authority for the overall operation, management and financial administration of the board.

             (2)  The chairperson shall supervise and direct the work of the commissioners and the staff of the board.

             (3)  The chairperson shall manage and plan the conduct of applications to the board and matters referred to it including the appointment of commissioners to panels of the board and the referral of applications and matters to a panel.

2006 c24 s2

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Restrictions

        7. (1) A commissioner shall not be directly or indirectly employed by or interested in a public utility or interested in a share, stock, bond, mortgage, security or contract of a public utility that is subject to this Act.

             (2)  Where a commissioner voluntarily becomes interested under subsection (1), his or her office shall become vacant.

             (3)  Where a commissioner becomes interested under subsection (1) otherwise than voluntarily, he or she shall, within a reasonable time, divest himself or herself of the interest and if the commissioner fails to do so the office shall become vacant.

1989 c37 s7

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Interim commissioner

        8. Where a commissioner is interested in accordance with section 7 in a matter before the board, or where a commissioner is unable to act because of illness, absence or other cause, the Lieutenant-Governor in Council may appoint a disinterested person to act as commissioner in his or her place and a person so appointed may complete any unfinished business in which he or she has taken part, even if the commissioner whom he or she has replaced has returned or has become able to act.

1989 c37 s8

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When commissioner not disqualified

        9. A commissioner is not disqualified from acting in a matter affecting a public utility because of being the purchaser of power, water or electric current or service for his or her own personal use from a public utility.

1989 c37 s9; 1998 c29 s4

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Powers of vice-chairperson

      10. (1) In the absence of the chairperson or if he or she is unable to act, the vice-chairperson shall exercise the powers of the chairperson and in that case all regulations, orders and other documents signed by the vice-chairperson have the same effect as if signed by the chairperson.

             (2)  Whenever the vice-chairperson appears to have acted for or instead of the chairperson, it shall be presumed that he or she so acted in the absence or disability of the chairperson.

1989 c37 s10

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Quorum

      11. Two commissioners shall form a quorum and may exercise all powers of the board; but where there is no opposing party and no notice to be given to an interested party, 1 commissioner may act alone for the board.

1989 c37 s11

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Vacancy

      12. A vacancy in the board does not impair the right of the remaining commissioners to act.

1989 c37 s12

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Board's expenses

      13. (1) The expenses of the board, including the salaries, pensions and allowances of the commissioners, board secretary, counsel, experts, accountants, stenographers and other assistants, and reasonable allowances for travelling of all the persons shall be estimated by the board annually and assessed upon and borne by the individual public utilities that carried on business during the whole or a part of the preceding calendar year in the proportion or at the rate that the board may determine on the gross earnings of each public utility as shown by the balance sheets, reports and other information relating to the financial year of the public utility filed with the board by the public utilities respectively and the cost of inquiries chargeable to specific utilities under section 90 shall not be included.

             (2)  Sales of appliances and other goods, wares and merchandise by a public utility shall be included in determining the gross earnings of the public utility for the purposes of subsection (1).

             (3)  A public utility which is an incorporated municipal body shall not be liable to assessment under this section.

             (4)  Where the balance sheet, report and other information are not so filed by a public utility, or the board considers them inadequate or insufficient, the question of the amount of the gross earnings of the public utility shall be a matter relating to the public utility within the meaning of section 82.

             (5)  Before July 2 in each year, or a later date that the board in its absolute discretion, with or without notice, shall order, the board shall assess in the manner fixed by subsection (1) each of the public utilities and shall notify each public utility of the amount at which it is assessed.

             (6)  Where the estimated assessments prove insufficient, the board may make further assessments and levies that may be necessary or may temporarily advance the amount of a deficiency out of a reserve and may add that amount to a later assessment.

             (7)  Where the expenses of the board are less than the assessments paid by the public utilities under subsection (5), the board may retain the amount of the difference, and the amount retained may be applied to reduce a subsequent assessment under subsection (5).

1989 c37 s13; 1998 c29 s5

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Payment of assessment

      14. (1) The amount assessed under section 13 on a public utility shall be paid by it within 1 month after it has been notified by the board of the amount, and in default of payment the board may sue for and recover the sum in a court in the name of the Board of Commissioners of Public Utilities as if the board were incorporated under that name, and the proceedings shall not be affected by a change in the membership of the board.

             (2)  Costs ordered in the proceedings to be paid by the board, and costs and expenses incurred by the board, because of the proceedings shall be held to be part of the expenses of the board for the year in which they are paid, and costs ordered in the proceedings to be paid to the board shall when paid be credited to the expenses of the board for the year in which they are paid.

1989 c37 s14

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Budget

      15. (1) Not later than December 31 in each year, the board shall prepare and submit to the Lieutenant-Governor in Council through the Minister of Justice, a budget containing estimates of all amounts required during the coming financial year.

             (2)  In a budget submitted under subsection (1), the board shall set out, in the detail and form that the Minister of Justice may prescribe, the amount the board estimates it will require from the Consolidated Revenue Fund and the proposed expenditure of that amount for the financial year for which the budget is submitted.

             (3)  Where an amount received by the board from the Consolidated Revenue Fund is not expended by the board in the financial year in which it is received, the board shall remit the unexpended amount back to the Consolidated Revenue Fund.

             (4)  The Lieutenant-Governor in Council may approve or alter a budget submitted to the Lieutenant-Governor in Council by the board.

1989 c37 s15; 1998 c29 s6

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General powers of board

      16. The board shall have the general supervision of all public utilities, and may make all necessary examinations and inquiries and keep itself informed as to the compliance by public utilities with the law and shall have the right to obtain from a public utility all information necessary to enable the board to fulfil its duties.

1989 c37 s16

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Inquiry by board

      17. The board may inquire into a violation of the laws or regulations in force in the province by a public utility doing business here, or by the officers, agents or employees, or by a person operating the plant of a public utility, and has the power and it is its duty to enforce this Act as well as all other laws relating to public utilities.

1989 c37 s17

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Annual report

      18. The board may publish an annual report regarding its proceedings.

1998 c29 s7

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Rep. by 1998 c29 s8

      19. [Rep. by 1998 c29 s8]

1998 c29 s8

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Regulations re practice

      20. The board may make, revoke and alter rules and regulations for the effective execution of its duties and of the intention and objects of this Act, and the regulations of the practice and procedure with regard to the matters over which it has jurisdiction and the rules and regulations, when approved by the Lieutenant-Governor in Council, shall have the force of the law.

1989 c37 s20

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Board policy

      21. The board may make policies

             (a)  providing for the granting; and

             (b)  prescribing terms, conditions and restrictions respecting, and otherwise regulating, the granting and taking

of leave of absence, including paid  leave, special leave with pay and special leave without pay, respecting

             (c)  members of the board; or

             (d)  employees of the board or a class of them.

1997 c13 s59; 1998 c29 s9

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Board may prescribe forms

      22. The board may prepare suitable forms for carrying out the purposes of this Act and shall when necessary provide the forms to each public utility.

1989 c37 s22

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Copies of orders

      23. Upon application of a person the board shall provide certified copies of an order made by it, which shall be, in the absence of evidence to the contrary, evidence of the facts stated in the order.

1989 c37 s23; 1998 c29 s10

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Delegation of powers

      24. The board or chairperson may authorize 1 of the commissioners to inquire into and report to the board upon a matter within the jurisdiction of the board or pending before it, and when so authorized he or she shall, for the purpose of taking evidence or obtaining information for the report, have the powers of a commissioner under the Public Inquiries Act.

1989 c37 s24

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Powers of the board

      25. The board may

             (a)  purchase, lease or otherwise acquire land or personal property of every nature and kind, or interest in land, which the board considers necessary, convenient or advisable to acquire for or incidental to the exercise of the powers, functions or duties of the board;

             (b)  receive lands, buildings, money or other property, by gift or trust for public use or for the use of the board;

             (c)  borrow by temporary, interim or long term loans or raise or secure the payment of money in the manner that the board thinks appropriate and, in particular, by the issue of bonds, debentures or other securities, and purchase, redeem or pay off the securities;

             (d)  pay interest, premium and sinking fund payments in respect of its borrowing;

             (e)  sell, improve, manage, exchange, lease, mortgage, charge, dispose of, turn to account, grant a term, easement, right or interest in, over or affecting, or otherwise deal with, all or a part of the property and rights of the board;

              (f)  draw, make, accept, endorse, execute and issue promissory notes, bills of exchange and other negotiable or transferable instruments; and

             (g)  generally do those things which the board considers necessary, convenient or advisable for or incidental to the exercise of the powers, functions and duties of the board.

1989 c37 s25

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Type of currency

      26. The money authorized to be borrowed under section 25 may be borrowed and repaid in Canadian or United States of America currency, or in the currency of another country or partly in 1 currency and partly in another, as the board may approve, and authority for borrowing or repaying the money includes authority to pay the exchange charges that may be applicable to the currency and the interest and premium incurred in respect of the borrowing, and to make sinking fund payments.

1989 c37 s26

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Authorization to borrow money

      27. The board shall not borrow money unless authorized by the Lieutenant-Governor in Council to do so.

1989 c37 s27

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Guarantee of loans

      28. (1) Subject to the prior approval of the Lieutenant-Governor in Council, the Minister of Finance, acting for and on behalf of the Crown, may unconditionally guarantee as to principal, interest, including interest on overdue interest, premium and sinking fund payments, loans, in Canadian or United States of America currency or in the currency of another country, or partly in 1 currency and partly in another, as the Lieutenant-Governor in Council shall determine, not exceeding in total the limit fixed under subsection (2), to be raised by the board by way of bonds, debentures or other securities issued by the board, the bonds, debentures or other securities to be issued

             (a)  in a principal amount not exceeding the sum;

             (b)  at a rate of interest, including interest on overdue interest and premium;

             (c)  on the terms and conditions; and

             (d)  with provisions for redemption at the time

that may be approved by the Lieutenant-Governor in Council, and the bonds, debentures or other securities may be issued or sold in the numbers and amounts, at the times, at the prices and upon the terms that the Lieutenant-Governor in Council may approve.

             (2)  The total of guarantees under this section shall not exceed a limit to be fixed by the Lieutenant-Governor in Council, and it shall be the duty of the Minister of Finance to see that this limit is not exceeded.

             (3)  Pending the issue and sale of bonds, debentures or other securities referred to in subsection (1), the Minister of Finance may guarantee the repayment by the board of an interim loan, with or without interest, not exceeding the principal sum of the loan to be raised by way of bonds, debentures or other securities, if provision satisfactory to the Minister of Justice is made for the repayment of the interim loan together with interest out of the proceeds of the bonds, debentures or other securities and for making the repayment of the interim loan and interest a 1st charge upon the proceeds, after deducting the costs and expenses, including commission charges of and incidental to the floating of the bonds, debentures or other securities and after deducting all other sums required to be deducted under a trust deed, trust indenture or agreement executed and delivered under section 33.

             (4)  The repayment of bonds, debentures or other securities may be guaranteed under subsection (1) even if an interim loan to the board has already been guaranteed under this section and even though pending the repayment of the interim loan the liability of the Crown will exceed the principal sum of the loan to be raised by way of bonds, debentures or other securities, but the liability of the Crown in respect of the bonds, debentures or other securities and in respect of the interim loan shall not exceed double the principal sum of the loan to be raised by way of bonds or debentures.

1989 c37 s28

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Endorsement on bonds or debentures

      29. Notwithstanding the Financial Administration Act, where a guarantee is given under section 28 of this Act,

             (a)  a statement in the following form:

"Guarantor's Certificate

Payment of principal premium and mandatory sinking fund payments on this ....................................... is guaranteed by the Province of Newfoundland and Labrador , Canada , as more fully set out in the Indenture .........................................".

or the following form of guarantee:

"Guarantee

under the Public Utilities Act, the Province of Newfoundland and Labrador unconditionally guarantees to the holder of the within ......................................................................, the payment on the respective due dates of the principal, premium and interest to become due, and also unconditionally guarantees mandatory sinking fund payments in respect of the issue of ...................... of which this .................... forms a part, as and when they become due and payable .............................................",

shall be endorsed on all bonds, debentures or other securities guaranteed under section 28; and

             (b)  the statement or the form of guarantee shall be signed on behalf of the province by the Minister of Finance, and the signature of that minister may be engraved, lithographed or otherwise mechanically reproduced on the bonds, debentures or other securities.

1989 c37 s29; 2001 cN-3.1 s2

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Guarantee of interest, premium and sinking fund payments

      30. Notwithstanding subsection 28(4), where the payment of an interest, premium or sinking fund payment has been guaranteed under this Act, the Crown may incur liability, in excess of the principal sum of the loan in respect of which the payment was guaranteed, to the extent of the guarantee of the interest, premium and sinking fund payment.

1989 c37 s30

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Further respecting guarantee

      31. The power conferred by section 28 to guarantee the repayment of bonds, debentures or other securities or an interim loan includes the power to guarantee the repayment of part of the bonds, debentures or other securities or part of the interim loan but, with respect to an individual loan, the total of the principal sums guaranteed by the Crown, exclusive of an interim loan guaranteed interest, premium and sinking fund payments shall not exceed the principal sum of an individual loan.

1989 c37 s31

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Temporary loans

      32. (1) The Minister of Finance, acting for the Crown, may unconditionally guarantee as to principal and interest temporary loans, other than the interim loans referred to in section 28, to be raised by the board, in Canadian or United States of America currency or in the currency of another country or partly in 1 currency and partly in another, not exceeding in total the limit fixed under subsection (2), every loan to be repaid by the board, within a period, not exceeding 24 months or a longer period that the Lieutenant-Governor in Council may prescribe, and to be

             (a)  in a principal amount not exceeding the sum;

             (b)  at a rate of interest, including interest on overdue interest and premium;

             (c)  at the discount; and

             (d)  on the terms and conditions

that may be approved by the Minister of Finance.

             (2)  The total of guarantees under this section shall not exceed a limit to be fixed by the Lieutenant-Governor in Council, and it shall be the duty of the Minister of Finance to see that this limit is not exceeded.

             (3)  A guarantee given under this section shall be in the form that the Lieutenant-Governor in Council approves.

1989 c37 s32; 1990 c62 s20

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Agreements

      33. The Minister of Finance acting on behalf of the Crown may enter into, execute and deliver a trust deed, trust indenture or an agreement with the board, a lender, a trustee acting for the holders of bonds, debentures or other securities or another person or company setting out the terms and conditions of a guarantee of a loan to be made under this Act.

1989 c37 s33

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Performance under guarantee

      34. A payment that the Crown may be required to make under this Act shall be paid by the Minister of Finance out of the Consolidated Revenue Fund of the province, or it may be paid out of funds provided in the manner prescribed in section 55 of the Financial Administration Act, or out of other funds appropriated for the purpose by the Legislature or it may be paid partly in one way and partly in another.

1989 c37 s34

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Government may purchase securities of board

      35. Notwithstanding the Financial Administration Act, or another Act or law, the province may purchase the securities of the board, and the Minister of Finance shall pay all expenses and charges of or incidental to a purchase made under this section out of the Consolidated Revenue Fund of the province.

1989 c37 s35

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Office of public utility

      36. Each public utility shall have an office in 1 of the cities, towns or settlements of the province in which its property or some part of it is located and shall keep in the office the books, accounts, papers or records that are required by the board to be kept within the province, and the books, accounts, papers or records shall not be removed from the province except upon the conditions that may be prescribed by the board.

1989 c37 s36

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Adequate service to be provided by public utility

      37. (1) A public utility shall provide service and facilities which are reasonably safe and adequate and just and reasonable.

             (2)  The board may either with or without notice to a public utility make an order appointing a person to make examinations, investigations or tests for the purpose of ascertaining whether service reasonably safe and adequate and just and reasonable is being supplied by the public utility and may in the order make provision as to the remuneration and expenses the person is to be paid by the public utility where the board certifies that they are payable.

1989 c37 s37

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Abandonment

      38. A public utility shall not abandon a part of its line, or works, after they have been operated, or discontinue a service without notice to the board, and without the written consent of the board, which consent shall only be given after notice to an incorporated municipal body interested, and after there has been an inquiry.

1989 c37 s38

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Construction or extension in territory otherwise served notice

      39. (1) A public utility shall not begin the construction of its line, plant or system or an extension of it in a territory already served or capable of being served by a public utility of similar character without first giving notice to the chief office in this province of the public utility of similar character.

             (2)  Where, following the giving of the notice, the public utilities concerned reach an agreement with respect to the construction, that agreement shall be presented to the board for its consideration; and upon approval being given, the board shall issue a certificate to the public utility wishing to begin the construction authorizing it to proceed in accordance with the terms of the agreement.

             (3)  Where an agreement is not reached, the board shall, upon the application of either of the public utilities concerned, and after a hearing involving the financial ability and good faith of the public utilities concerned and the necessity of additional service in the territory, issue a certificate to proceed with the construction or refuse to issue the certificate or issue it for the construction of a portion only of the contemplated line, plant or system or extension and the board may attach to the exercise of the right granted by the certificate those terms and conditions that in its judgment the public convenience and necessity may require.

1989 c37 s39

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Removal of works constructed

      40. (1) The board may order a public utility to remove, demolish or destroy, at its own cost and expense and within the period that may be prescribed in the order, a line, plant, system or extension referred to in subsection 39(1), which it constructs or begins to construct

             (a)  without

                      (i)  giving the notice referred to in subsection 39(1), or

                     (ii)  the certificate referred to in subsection 39(2) or (3); or

             (b)  contrary to the terms and conditions referred to in subsection 39(3).

             (2)  Where, after making a summary investigation, the board becomes satisfied that sufficient grounds exist to warrant a hearing being held into whether an order should be made under subsection (1), it may hold the hearing.

             (3)  The board may hold the hearing referred to in subsection (2) without public advertisement or notice to a person other than the parties directly concerned, and the length of notice to those parties shall be as the board determines.

             (4)  Where the public utility referred to in subsection (1) fails to carry out the order referred to in that subsection within the period prescribed in the order, or within the further period that the board may in writing allow, it is guilty of an offence and, whether it is prosecuted for the offence or not, the board may by its agents or workers effect the removal, demolition or destruction required by the order and sue for and recover the cost from the public utility as a civil debt.

1989 c37 s40

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Capital budget of public utility

      41. (1) A public utility shall submit an annual capital budget of proposed improvements or additions to its property to the board for its approval not later than December 15 in each year for the next calendar year, and the budget shall include an estimate of contributions toward the cost of improvements or additions to its property the public utility intends to demand from its customers.

             (2)  The budget shall contain an estimate of future required expenditures on improvements or additions to the property of the public utility that will not be completed in the next calendar year.

             (3)  A public utility shall not proceed with the construction, purchase or lease of improvements or additions to its property where

             (a)  the cost of the construction or purchase is in excess of $50,000; or

             (b)  the cost of the lease is in excess of $5,000 in a year of the lease

without the prior approval of the board.

             (4)  A public utility shall submit a report on its actual expenditures on improvements or additions to its property in the prior calendar year, together with an explanation as to expenditures in excess of those approved under subsection (1) not later than April 1 in each year.

             (5)  A public utility that intends to demand from its customers a contribution towards the cost of improvements or additions to its property shall not demand the contribution without the prior approval of the board.

             (6)  Notwithstanding subsection (5), a public utility may, without the prior approval of the board, demand from its customers a contribution toward the cost of an improvement or an addition to its property where the demand for the contribution is approved under a policy of the board.

1989 c37 s41; 1998 c29 s11

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Interference with other utility

      42. (1) A public utility shall not make an extension to or changes in its line, plant or system which are likely to be detrimental to the service supplied by another public utility without first giving reasonable notice in writing by prepaid post to the chief office in this province of the other public utility.

             (2)  The public utilities directly concerned may agree upon methods and specifications which will, where reasonably possible, minimize the detrimental effects on the service of the other public utility.

             (3)  In the event of the failure of a public utility to comply with subsection (1) as to notice or in the event of failure to so agree, the parties directly concerned may make application to the board for a hearing with respect to the matter in issue.

             (4)  The board may hold the hearing without public advertisement or notice to a person other than to the parties directly concerned.

             (5)  After inquiry into the nature of the extensions and changes made or proposed to be made, the board, subject to those terms and conditions that in the judgment of the board the circumstances require, may grant or withhold approval or may order the changes that may be just and expedient.

1989 c37 s42

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Voltage and frequency

      43. (1) Before supplying electrical energy to a customer a public utility shall declare, in writing signed by its proper officer or its agent, to the customer the constant voltage, and if from an alternating current source, the frequency, at which it proposes to supply electrical energy at the customer's terminals.

             (2)  The variation of voltage, and in the case of alternating currents the frequency, at a customer's terminals, unless otherwise ordered by the board, shall not under conditions of the supply which the customer is entitled to receive exceed 4% from the declared constant voltage or frequency, whether the variation is due to the resistance of the service lines or apparatus belonging to the public utility, or to an action or effect produced by the apparatus, for which the customer cannot be shown to be responsible, or partly to a variation of voltage in the distributing mains from which the supply is taken.

1989 c37 s43

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Maintenance equipment on customer's premises

      44. The public utility is responsible for all electric lines, fittings and apparatus belonging to it or under its control upon the customer's premises being maintained in a proper condition, and in all respects suitable for supplying energy, but it is not responsible for damages arising from the use of the electric current in lines, fittings and apparatus not belonging to it or under its control.

1989 c37 s44

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Officer may enter premises

      45. (1) An officer or agent of the public utility authorized in writing by the public utility may enter at reasonable times premises to which electrical energy is or has been supplied by the public utility, for the purpose of

             (a)  inspecting the electric wires, meters, accumulators, fittings, works and apparatus of the public utility for the supply of electrical energy;

             (b)  ascertaining the quantity of electrical energy consumed or supplied;

             (c)  removing electric wires, meters, accumulators, fittings, works and apparatus belonging to the public utility;

             (d)  cutting off the supply of electrical energy in cases where a supply of electrical energy is no longer required, or the public utility is authorized to take away and cut off the supply of electrical energy from premises, doing as little damage as possible;

             (e)  inspecting and testing wires and fittings upon a customer's premises in order to ascertain whether a leakage of electricity exists, after it has been determined that no leakage exists in a part of the circuit concerned which is outside the premises of the customer.

             (2)  The officer or agent shall repair all damage caused by the entry, inspection or removal.

1989 c37 s45; 1990 c62 s20

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Right to discontinue service

      46. Where on an inspection and test made under section 45 the officer or agent discovers that a leakage of electricity exists on the customer's premises or where the customer does not give all facilities for the inspection and test, the public utility shall immediately discontinue the supply of electrical energy to the premises of the customer, giving immediate notice of the discontinuance to the customer and shall not recommence the supply until it is satisfied that the leakage has been brought to an end.

1989 c37 s46

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Appeal

      47. Where a customer is dissatisfied with the action of the public utility; either as to the mode of making the test or in discontinuing the supply of electrical energy to his or her premises, the wires and fittings of the customer may, on application to the board, be tested for the existence of the leakage by an inspector appointed by the board.

1989 c37 s47

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Restriction of sale

      48. A public utility shall not sell, assign or transfer the whole of its undertaking or a part of it to a person or corporation until the approval of the board has been obtained.

1989 c37 s48

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Assignment of franchise

      49. (1) A franchise or a right under a franchise to own or operate a public utility, shall not be assigned, transferred or leased, nor shall a contract or agreement with reference to or affecting the franchise or right be valid or have effect, unless the assignment, transfer, lease, contract or agreement has been made under the authority of a statute, or with the written approval of the board.

             (2)  The approval by the board of the assignment, transfer, lease, contract or agreement under this section shall not be held or construed to revive or validate a lapsed or invalid franchise or to extend or add to the powers and privileges contained in the grant of a franchise or to waive a forfeiture.

1989 c37 s49

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Restriction on application of sections 48 and 49

      50. Sections 48 and 49 do not apply to a mortgage or charge approved by the board or to a right of entry, sale or other proceeding in the enforcement of the security constituted or in exercise of the rights or remedies granted or otherwise available at law.

1989 c37 s50

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Rep. by 1998 c29 s12

      51. [Rep. by 1998 c29 s12]

1998 c29 s12

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Rep. by 1998 c29 s12

      52. [Rep. by 1998 c29 s12]

1998 c29 s12

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Use of poles, etc. by other utility, etc.

      53. (1) A public utility having conduits, poles, wires or similar equipment shall, for reasonable compensation,

             (a)  permit the use of its conduits, poles, wires and similar equipment by another public utility; and

             (b)  permit the use of its conduits and poles by a licensed cable television system,

if public convenience and necessity require that use and it will not result in a substantial detriment to the service rendered or to be rendered by the public utility owning the equipment.

             (2)  In case of failure to agree upon the use, or the conditions or compensation for the use, a public utility or a person or corporation interested may apply to the board, and if after investigation the board considers that public convenience and necessity require the use, and that it would not result in a substantial detriment to the service rendered by the owners or other users of the equipment, it shall by order direct that the use be permitted and prescribe conditions and compensation for the use, and the use so ordered shall be permitted and the conditions and compensations so prescribed shall be the lawful conditions and compensation to be observed, followed and paid.

             (3)  The order of the board may be revised or varied by the board upon application of an interested party or of its own motion.

             (4)  The Lieutenant-Governor in Council may by order issue directions to the board that shall be binding on the board on a matter concerning compensation for the use of poles owned by a public utility by a licensed cable television system.

1989 c37 s53; 1990 c62 s20

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Duty of power company to supply electrical energy

      54. (1) A power company shall supply electrical energy to premises situated within 100 metres of a transmission line, main supply-wire or cable suitable for that purpose, on being required by the owner or occupier of the premises to do so.

             (2)  The power company before taking steps to supply the energy, and before supplying the energy or making a connection, or as a condition of the power company continuing to supply it, may require the owner or occupier to give reasonable security for the repayment of the costs of making the connection when those costs exceed $50, and for the payment of the proper tolls for electrical energy and the rent of instruments.

             (3)  In the event of the power company and the owner or occupier failing to agree upon the nature or amount of the security to be given within 14 days from the date upon which the owner or occupier requires the power company to supply electrical energy, the amount of the security and the manner in which it shall be given shall, upon the application of either party, be determined by the board, and the board may make an order for security under this section for other matters that under the circumstances the board may consider just and equitable.

             (4)  The board may, for good cause and after hearing the interested parties, relieve a power company from the statutory obligation to supply electrical energy upon the terms and conditions that the board may consider appropriate and in the public interest.

1989 c37 s54

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Board may order power company to supply electrical energy

      55. Upon the application of a person whose premises are situated at a greater distance than 100 metres from a transmission-line, main supply-wire, or cable suitable for that purpose, and who wishes to be supplied with electrical energy by the power company controlling or operating the transmission-line, supply-wire, or cable, the board may order the power company to supply, within the time that the board may direct, the electrical energy required by that person, and to make those extensions and install the equipment and apparatus that may be necessary to supply it upon the terms and conditions that the board may direct, including, if the board thinks advisable, provision for the cost or a portion of the cost of the extension, equipment, or apparatus to be borne by the person requiring the electrical energy.

1989 c37 s55

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Erection of structures in municipalities

      56. (1) A public utility shall not, in a city, town or other incorporated municipality, erect or place a pole, wire, conduit or pipe or erect a building, substation, tower or other structure without first obtaining the consent of the council of the city, town or municipality, and the council may consent, or may refuse its consent, as it considers appropriate.

             (2)  Where the council refuses or neglects to grant a permit to erect or place the pole, wire, conduit or pipe or the building, substation, tower or other structure within 1 month after the application has been received by the mayor or clerk of the city, town or municipality, or agrees to give it only on terms which the public utility will not accept, either party may refer the matter to the board and the board may make an order directing on what terms the work shall be undertaken.

1989 c37 s56

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Complaint of utility

      57. A public utility may make complaint as to matters affecting its own product or service in the same way that a municipal corporation may under this Act.

1989 c37 s57

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Form of records may be prescribed

      58. The board may prescribe the form of all books, accounts, papers and records to be kept by a public utility and a public utility shall keep its books, accounts, papers and records and make its returns in the manner and form prescribed by the board and comply with all directions of the board relating to those books, accounts, papers, records and returns.

1989 c37 s58

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Financial year

      59. (1) Unless the board otherwise orders, all accounts required to be kept by a public utility shall be closed annually on the last day of December in each year, and a balance sheet as of that date shall be promptly taken from the accounts.

             (2)  Before April 2 following, or on another date that the board determines, the balance sheet, together with other information that the board shall prescribe, verified on oath or affirmation by an officer of the public utility, shall be filed with the board.

1989 c37 s59

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Inspection of records

      60. (1) The board or a commissioner, or a person employed by the board for that purpose, shall upon demand have the right to inspect the books, accounts, papers, records and memoranda of a public utility, and the board or a commissioner shall have the power to examine under oath or affirmation an officer, agent or employee of the public utility in relation to its business and affairs.

             (2)  A person other than a commissioner who makes the demand shall produce his or her authority to make the inspection or examination.

1989 c37 s60

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Audit

      61. (1) The board may provide for the examination and audit of all accounts, and all items shall be allocated to the accounts in the manner prescribed by the board.

             (2)  The agents, accountants or examiners employed by the board have authority under the direction of the board to inspect the books, accounts, papers or records and memoranda kept by a public utility.

1989 c37 s61

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Information to be supplied

      62. (1) A public utility shall provide to the board all information required by it to give effect to this Act, and shall make specific answers to all specific questions submitted by the board.

             (2)  A public utility receiving from the board blank forms with directions to fill them in shall fill them in so as to answer fully and correctly each question asked, and in case it is unable to answer a question it shall give a good reason for the failure, and the answers shall be verified under oath or affirmation by the president, secretary, superintendent or general manager of the public utility and returned to the board at its office within the period fixed by the board.

1989 c37 s62

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Power to compel attendance

      63. At a hearing or inquiry the board may hear evidence upon oath or affirmation and may compel the attendance before it of witnesses by subpoena signed and sealed by the chairperson or a member of the board, and may by subpoena compel the production by a witness of papers, books or documents, and a witness who is served with a subpoena and paid the fees allowed to a witness for travel and attendance in the Trial Division shall be subject to the same penalties for disobeying the subpoena as he or she would be had the subpoena been issued out of the Supreme Court, and a member of the board may administer the oath or affirmation to a witness.

1989 c37 s63

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Valuation by board

      64. (1) The board may, with the assistance of the engineers, accountants, valuators, counsel and others that it thinks advisable to employ, inquire into and determine the extent, condition and value of the whole or a portion of the property and assets of a public utility used and useful in providing or supplying a particular service to or for the public, as of a date to be fixed by the board.

             (2)  The board may determine the value of the property and assets of a public utility in accordance with the following rules:

             (a)  where the property and assets were

                      (i)  held by the public utility before January 1, 1950, or

                     (ii)  acquired by the public utility on or after that date, but were in physical existence before that date,

the value shall be determined on the basis of the fair depreciated value of the property and assets at that date, with subsequent depreciation;

             (b)  where the property and assets are new property and assets created or acquired on or after January 1, 1950, the value shall be determined on the basis of the prudent original cost, with depreciation since the date of creation or acquisition;

             (c)  where the property and assets are property and assets other than those referred to in paragraphs (a) and (b) and were acquired on or after January 1, 1950, the value shall be determined on the basis of the prudent cost at the time of the acquisition, with depreciation since the date of acquisition.

             (3)  For the purposes of this section, annual and accrued depreciation shall be calculated by the straight line method, so called, or other method that the board may prescribe.

             (4)  The board may make those rules and regulations to facilitate inquiries under this section that it may consider convenient, and the rules and regulations so made are binding on all public utilities.

1989 c37 s64

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Cost of valuation

      65. (1) Where the board orders

             (a)  a valuation to be made; or

             (b)  the checking of a valuation submitted to the board by or on behalf of a public utility,

the board may order that

             (c)  the reasonable costs and expenses of counsel, engineers, valuators, stenographers and other assistants retained and employed by the board; and

             (d)  expenses of the members of the board

while engaged in and about the making or checking of the valuations shall be paid by the public utility whose property and assets are the subject of the valuation.

             (2)  Amounts chargeable under this section may, by order of the board, be made payable as the work of making or checking the valuation proceeds and before its completion, and the certificate of the chairperson of the board is sufficient to fix on the public utility the liability for the payment of an amount certified by that chairperson to have been incurred in respect of the making or checking of the valuation.

             (3)  All costs and expenses in connection with the making or checking of a valuation ordered under subsection (1), including all expenses incurred by the public utility whose property is the subject of the valuation, may when the board so directs be charged to capital account and added to the rate base of the public utility.

1989 c37 s65; 1990 c62 s20

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Information to be provided

      66. (1) A public utility shall provide to the board as the board may require, maps, profiles, contracts, reports of engineers, books, accounts and other documents and records of every kind, or copies of them and a complete inventory of all its property and other particulars the board may require with a view to determining the value of the property of the public utility.

             (2)  The board shall keep itself informed of all extensions and improvements or other changes in the condition of the property of the utilities, and may revise and correct its valuation of the property of the public utilities.

             (3)  To enable the board to make the changes and corrections in its valuation, a public utility shall report correctly to the board changes in its property and file with the board copies of all contracts for changes and improvements at the time they are executed.

1989 c37 s66

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Accounts, etc. to be provided

      67. Each public utility shall provide to the board whenever required in connection with an investigation by the board, in the form and at the times that the board requires, those accounts, reports and information that show in itemized detail, depreciation, salaries, wages, legal expenses, taxes and rentals, quantity and value of material used, receipts from residuals, by-products, services, or other sales, total and net costs, net and gross profits, dividends and interest, surplus or reserve, prices paid by consumers, and in addition the other items, whether of a similar nature to those enumerated or otherwise, that the board may prescribe, in order to show completely and in detail the entire operation of the public utility in providing its product or service to the public.

1989 c37 s67

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Depreciation

      68. (1) A public utility shall make provision for proper and adequate annual depreciation of its property and assets used and useful in providing or supplying each kind of service, and shall keep proper accounts.

             (2)  The annual depreciation shall be calculated by the straight line method or by another method that the board may prescribe.

             (3)  A public utility shall report to the board the annual rates of depreciation applied to the several classes of property of the public utility.

             (4)  The board may ascertain and determine what are proper and adequate rates of depreciation of the several classes of property of a public utility, and the public utility shall conform its depreciation account to the rates so ascertained and determined.

             (5)  The board may revise the rates of depreciation as it considers necessary or expedient.

1989 c37 s68

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Establishment of depreciation account

      69. (1) A public utility, if so ordered by the board, shall, out of earnings, set aside all money required and carry it in a depreciation account.

             (2)  The depreciation account shall not, without the consent of the board, be spent otherwise than for replacements, new constructions, extensions or additions to the property of the company.

             (3)  The board may by order require a public utility to create and maintain a reserve fund for a purpose which the board thinks appropriate, including the improvement of the public utility's status as a borrower or seeker of funds for necessary maintenance or expansion of its operations.

             (4)  The board, in a case where it has made an order which has the effect of increasing a public utility's revenues, may require the public utility to refrain from distributing as dividends until further order the whole or a part of the extra revenue which is in the board's opinion attributable to the order.

             (5)  An order under this section shall be made only after hearing the public utility concerned.

1989 c37 s69; 1990 c62 s20

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Compensation for services

      70. (1) A public utility shall not charge, demand, collect or receive compensation for a service performed by it whether for the public or under contract until the public utility has first submitted for the approval of the board a schedule of rates, tolls and charges and has obtained the approval of the board and the schedule of rates, tolls and charges so approved shall be filed with the board and shall be the only lawful rates, tolls and charges of the public utility, until altered, reduced or modified as provided in this Act.

             (2)  In the case where a contract for block sale of electrical energy for ultimate distribution to the public is in force on June 10, 1964, and in the opinion of the board the price for a unit charged under the contract is unreasonable and not in the public interest, the board may require all parties to the contract to reform the contract in respect of the price for a unit charged to the purchaser, and this shall not invalidate the contract in other respects.

             (3)  In a case referred to in subsection (2), section 72 shall not apply.

1989 c37 s70

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Approval of changes in rates

      71. A public utility shall submit for the approval of the board the rules and regulations which relate to its service, and amendments to them, and upon approval by the board they are the lawful rules and regulations of the public utility until altered or modified by order of the board.

1989 c37 s71

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Rates to be posted

      72. A copy of so much of the schedule referred to in section 70 and so much of the rules and regulations referred to in section 71 as the board considers necessary for the information of the public shall be printed in plain type and kept in every office of the public utility where payments are made by the consumers or users, open to the public in the form and place that is readily accessible to the public and so as to be conveniently inspected.

1989 c37 s72

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Equality of rates

      73. (1) All tolls, rates and charges shall always, under substantially similar circumstances and conditions in respect of service of the same description, be charged equally to all persons and at the same rate, and the board may by regulation declare what shall constitute substantially similar circumstances and conditions.

             (2)  The taking of tolls, rates and charges contrary to this section and the regulations is prohibited.

1989 c37 s73

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Forms of schedule may be altered

      74. The board may prescribe those changes in the form in which schedules are issued by a public utility that may be expedient.

1989 c37 s74

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Interim order

      75. (1) The board may make an interim order unilaterally and without public hearing or notice, approving with or without modification, a schedule of rates, tolls and charges submitted by a public utility, upon the terms and conditions that it may decide.

             (2)  The schedule of rates, tolls and charges approved under subsection (1) are the only lawful rates, tolls and charges of the public utility until a final order is made by the board under section 70.

             (3)  The board may order that the excess revenue that was earned as a result of an interim order made under subsection (1) and not confirmed by the board be

             (a)  refunded to the customers of the public utility; or

             (b)  placed in a reserve fund for the purpose that may be approved by the board.

1989 c37 s75; 1990 c62 s20

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Board may rescind or amend order fixing rates

      76. The board may upon notice to the public utility and after hearing as provided in this Act, by order rescind, alter or amend an order fixing rates, tolls, charges or schedules, or other order made by the board, and certified copies of the order shall be served and take effect as provided in this Act for original orders.

1989 c37 s76

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Incidental sale of services to public

      77. (1) Where an industrial corporation utilizes electrical power or water, whether provided, supplied, generated or collected by itself or by an allied corporation or purchased from some other producer, and where the industrial corporation provides power or water to a community associated with or adjacent to its operation, and the providing is not the primary business of the industrial corporation but is done as a matter of convenience to a part of the public not otherwise served, and the providing is not in competition with a public utility whose primary business is to provide the power or water, it shall be in the discretion of the board to exempt the industrial corporation from this Act, or to fix by agreement with the industrial corporation an arbitrary rate to be charged to the public.

             (2)  The intent of this section is to facilitate the common action of industrial corporations in supplying electricity or water to communities connected with them pending the establishment of ordinary public utilities, and the board shall interpret this section accordingly.

1989 c37 s77; 1998 c29 s13

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Rate base

      78. (1) Except as otherwise provided in this Act, the board may fix and determine a separate rate base for each kind of service provided or supplied to the public by a public utility, and may revise the base.

             (2)  In fixing a rate base the board may, in addition to the value of the property and assets as determined under section 64, include

             (a)  an allowance for necessary working capital;

             (b)  organizational expenses to the extent of the sum that the public utility establishes to the satisfaction of the board as reasonable;

             (c)  cost in whole or in part of land or other property and assets acquired or held in reasonable anticipation of future requirements;

             (d)  costs and expenses of the making or checking of valuations referred to in subsection 65(3), but only to the extent not amortized in previous years;

             (e)  the part, that the board may determine, of the cost of energy, water, steam, heat or other distributable thing purchased by the public utility, either as supplementary to or instead of its own production;

              (f)  the part, that the board may determine, of the money paid for the use of plant or equipment leased, hired or shared by the public utility, either as supplementary to or instead of its own plant or equipment;

             (g)  an allowance, as determined by the board, for the costs of a plant of a public utility under construction;

             (h)  other fair and reasonable expenses which

                      (i)  the board thinks appropriate and basic to the public utility's operation, and

                     (ii)  has, with the approval of the board, been charged to capital account,

but the expenses shall be allowed only to the extent not amortized in previous years.

             (3)  For the purposes of this section, the board, from the appraised value of the property of the public utility concerned,

             (a)  shall exclude the value of a franchise, licence, permit or concession obtained or held by the public utility from or under a municipality or other public authority beyond the money paid to the municipality or other public authority as consideration for the franchise, licence, permit or concession; and

             (b)  may exclude

                      (i)  contributions in aid of construction or acquisition of property or assets,

                     (ii)  deferred income taxes, and

                    (iii)  other amounts which the board considers it fair and just to exclude.

1989 c37 s78; 1990 c62 s20

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Utilities supplying more than 1 type of service

      79. (1) Where a public utility provides or supplies more than 1 kind of service, the board, unless it determines to treat the public utility as providing 1 kind of service, shall segregate those kinds of services into distinct classes of service, and for the purpose of determining the rate base for a particular service provided or supplied, and for the purposes of annual and other returns or reports to be made to the board, each distinct class or category of service shall be considered as a separate and self-contained unit, the rate base for which shall be determined and fixed without regard to the rate base determined and fixed for another class.

             (2)  The board may, to the extent that it thinks appropriate, take into account distinct areas served by a public utility with a view to ensuring that the rates applicable in each area are adequate in that they yield a fair and reasonable return on the appraised value of the property of the public utility used, or reasonably acquired, for the purpose of providing the service in that area.

             (3)  Where the board is considering a special area, it may take into account the special considerations applicable to an area that is sparsely settled or has other distinctive characteristics.

1989 c37 s79

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Annual earnings

      80. (1) A public utility is entitled to earn annually a just and reasonable return as determined by the board on the rate base as fixed and determined by the board for each type or kind of service supplied by the public utility but where the board by order requires a public utility to set aside annually a sum for or towards an amortization fund or other special reserve in respect of a service supplied, and does not in the order or in a subsequent order authorize the sum or a part of it to be charged as an operating expense in connection with the service, the sum or part of it shall be deducted from the amount which otherwise under this section the public utility would be entitled to earn in respect of the service, and the net earnings from the service shall be reduced accordingly.

             (2)  The return shall be in addition to those expenses that the board may allow as reasonable and prudent and properly chargeable to operating account, and to all just allowances made by the board according to this Act and the rules and regulations of the board.

             (3)  Reasonable payments each year to former employees of a public utility who have retired and are receiving payments of supplemental income from the public utility are expenses that the board may allow as reasonable and prudent and properly chargeable to the operating account of the public utility.

             (4)  The board may use estimates of the rate base and the revenues and expenses of a public utility.

1989 c37 s80

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Rate base in respect of water and sewage systems

      81. A public utility that is a city, a municipality or local improvement district or a town, community, region or local service district established or continued under the Municipalities Act or a local public commission or board constituted by or under an Act of the Legislature which owns, operates, manages or controls in the province equipment and facilities for the collection, storage, transmission or providing of water through mains directly or indirectly to the public for compensation and owns, operates, manages or controls in the province equipment and facilities for the collection, treatment or disposal of sewage through mains directly or indirectly for or from the public for compensation shall for the purpose of fixing a rate base be considered to be or supplying one kind of service.

1989 c37 s81

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Investigation by board

      82. Where the board believes that a rate or charge is unreasonable or unjustly discriminatory, or that a reasonable service is not supplied, or that an investigation of a matter relating to a public utility should be made, it may, of its own motion, summarily investigate the rate or charge or matter with or without notice.

1998 c29 s14

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Board may recommend legislation

      83. Where a public utility or person proposes a change in a law relating directly or indirectly to the property or operations of a public utility, the proposed change may be submitted to the board, and the board may take evidence and give public hearings, and the board may recommend the bills that will in its judgment protect the interests of the public and the public utility, and transmit the bills to the attorney general.

1989 c37 s83

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Power and procedure of board upon complaint

      84. (1) Upon a complaint made to the board against a public utility by an incorporated municipal body or the Newfoundland and Labrador Federation of Municipalities or by 5 persons, firms or corporations, that the rates, tolls, charges or schedules are unreasonable or unjustly discriminatory or that a regulation, measurement, practice or act affecting or relating to the operation of a public utility is unreasonable, insufficient or unjustly discriminatory or that the service is inadequate or unobtainable, the board shall proceed, with or without notice, to make the investigation that it considers necessary or expedient.

             (2)  The board may order the rates, tolls, charges or schedules reduced, modified or altered, and make other orders as to the reduction, modification or change of the regulation, measurement, practice or acts that the case may require, and may order on the terms and subject to the conditions that are just that the public utility provide reasonably adequate service and facilities and make extensions that may be required, but an order shall not be made or entered by the board without a public hearing or inquiry.

             (3)  The board, when called upon to institute an investigation, may require from the complainants the deposit of a reasonable amount of money or other security to cover the costs of the investigation, which money or security shall be dealt with as the board directs, should the decision be given against the complainants.

1989 c37 s84

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Notice to public utility

      85. The board shall, before the hearing referred to in section 84, notify the public utility complained of that a complaint has been made and after reasonable notice has been given, the board may proceed to set a time and place for a hearing and an investigation as provided in this Act.

1989 c37 s85

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Notice of hearing

      86. The board shall give the public utility and the complainant 10 days' notice of the time and place of the hearings and investigation referred to in section 85 and the matters considered and determined and both the public utility and the complainant are entitled to be heard and to have process to enforce the attendance of witnesses.

1989 c37 s86

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Powers of board when rates found unjust

      87. (1) Where upon an investigation the rates, tolls, charges or schedules are found to be unjust, unreasonable, insufficient or unjustly discriminatory, or to be preferential or in violation of this Act, the board has power to cancel those rates, tolls, charges or schedules and declare void all contracts or agreements, either oral or written, dealing with them upon and after a day named by the board, and to determine and by order substitute those rates, tolls or schedules that are reasonable.

             (2)  Where upon investigation it is found that a regulation, time schedule, act or service complained of is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or in violation of this Act, or where it is found that reasonable service is not supplied, the board has power to determine and substitute other regulations, time schedules, service or acts and to make the changes in the regulations, time schedules, service or acts that are reasonable.

             (3)  Upon an investigation for the purpose of determining upon and requiring a reasonable extension of lines, or of service, the board has power to fix, determine, and require an extension to be made and the terms and conditions upon which it shall be made, but a hearing shall not be held and an order shall not be made respecting the extension, without notice to the public utility affected as provided in this Act.

1989 c37 s87

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Formal hearing

      88. Where after making a summary investigation, the board becomes satisfied that sufficient grounds exist to warrant a formal hearing being ordered as to matters so investigated, it shall provide the public utility interested with a statement notifying the public utility of the matters under investigation and 10 days after the notice has been given the board may set a time and place for a hearing and an investigation as provided in this Act.

1989 c37 s88

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Notice of formal hearing

      89. Notice of the time and place for the hearing referred to in section 88 shall be given to the public utility and to other interested persons that the board considers necessary as provided in this Act and proceedings shall be held and conducted in reference to the matter investigated in the same manner as complaints filed with the board are investigated, and the same order may be made as if the investigation had been made on complaint.

1989 c37 s89

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Costs

      90. (1) The costs of and incidental to a proceeding before the board shall be in the discretion of the board, and may be fixed at a definite amount, or may be taxed and the board may order by whom they are to be taxed and to whom they are to be allowed and the board may prescribe a scale under which costs shall be taxed.

             (2)  All expenses in connection with inquiries held by the board, including costs of counsel, engineers, valuators, stenographers, accountants and other assistants employed by the board as well as the salaries and expenses of the members of the board while employed in and about the inquiry shall, where the board so orders, be paid by the public utilities concerned in the inquiry.

             (3)  Where an order for payment of expenses under subsection (2) is made against 2 or more public utilities, the expenses shall be apportioned among them in proportion to their gross earnings in the year before the year in which the inquiry was terminated.

1989 c37 s90

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Approval of security issues

      91. (1) A public utility shall not issue shares, which for the purposes of this section shall include preferred shares, stocks, bonds, debentures or evidence of indebtedness payable in more than 1 year from the date of issue, except as provided in subsection (2) until it has obtained approval from the board for the proposed issue; except that

             (a)  without the approval of the board and for the purpose of enabling a public utility to organize, it may make a 1st issue of its shares for cash for a value not exceeding $10,000; and

             (b)  without the further approval of the board a public utility may issue shares upon the exercise of an optional right of conversion attaching to shares, stocks, bonds, debentures, debenture stocks or other evidence of indebtedness previously approved by the board.

             (2)  Applications to the board by a public utility for approval of an issue of its shares, stocks, bonds, debentures or other evidence of indebtedness, shall comply with and conform to the rules of procedure of the board.

             (3)  In considering an application under subsection (2), the board may, in its discretion, hold a public hearing, and where the board is satisfied that the proposed issue by a public utility of its shares, stocks, bonds, debentures or other evidence of indebtedness is to be made in accordance with law and for a purpose approved by the board, the board shall make an order approving the proposed issue to the amount that it considers appropriate, and shall prescribe the purpose to which the issue or the proceeds of the issue are to be applied.

             (4)  The board may grant its approval under this section for the proposed issue in the amount applied for, or in a lesser amount, and subject to the conditions that it may consider reasonable and necessary to impose.

             (5)  Without first obtaining the approval of the board,

             (a)  a public utility shall not make a material alteration in the characteristics of its stocks or shares, or its bonds, debentures, securities, or other evidence of indebtedness as those characteristics are described by the board in granting its approval of the issue; and

             (b)  a public utility which has, either with the approval of the board or before the time when the approval was required, made an issue of stocks or shares, or of bonds, debentures, securities, or other evidence of indebtedness payable in more than 1 year from the date of issue shall not increase a fixed dividend or interest rate or extend a maturity date concerning the issue, restrict the public utility's right to redeem the issue, or increase the premium to be paid on redemption of the issue.

             (6)  A municipality shall not be considered to be a public utility within the meaning of this section.

1989 c37 s91; 1990 c62 s20; 1998 c29 s15

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Division of surplus profits

      92. (1) Nothing in this Act shall be taken to prohibit a public utility from entering into a reasonable arrangement with its employees for the division or distribution of its surplus profits.

             (2)  An arrangement shall not be lawful until it is found by the board, after investigation, to be reasonable and consistent with this Act, and the arrangement shall be under the supervision and regulation of the board.

1989 c37 s92

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Powers of commissioners

      93. (1) A commissioner for the purposes mentioned in this Act, shall have power to administer oaths and affirmations, certify to official acts, issue subpoenas, compel the attendance of witnesses and the production of books, accounts, papers, records, documents and testimony.

             (2)  In case of failure on the part of a person to comply with a subpoena or on the refusal of a witness to testify to a matter regarding which the witness may be interrogated before the board or a commissioner, it shall be the duty of the Trial Division, on application of the board or a commissioner, to compel obedience in the manner that the Trial Division thinks appropriate.

1989 c37 s93

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Effect of judgment of courts

      94. In determining a question of fact, the board is not bound by the finding, order or judgment of a court in a suit, prosecution or proceeding involving the determination of the fact, but the finding, order or judgment shall in proceedings before the board, be presumptive evidence only.

1989 c37 s94

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Jurisdiction not affected by pending suit

      95. The pending of a suit, prosecution or proceeding in a court involving questions of fact shall not deprive the board of jurisdiction to hear and determine the same questions of fact.

1989 c37 s95

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Evidence taken as in Supreme Court

      96. The board may, in an investigation, take the evidence of witnesses living within or outside the province in the manner prescribed by law for similar evidence in civil actions in the Trial Division.

1989 c37 s96

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Record of proceedings to be kept

      97. A full and complete record shall be kept of all proceedings held before the board on formal investigations and all testimony shall be recorded in the manner ordered by the board.

1998 c29 s16

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Obligation to testify

      98. A person shall not be excused from testifying or from producing books, accounts, papers, records and documents in a proceeding based upon or growing out of a violation of this Act for the reason that the evidence, documentary or otherwise, required of the person may tend to incriminate or to subject him or her to penalty or forfeiture, but a person having so testified shall not be prosecuted or subjected to a penalty or forfeiture for a transaction, matter or thing concerning which the person may have testified or produced documentary evidence.

1989 c37 s98

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Appeal from decision of board

      99. (1) An appeal lies to the Court of Appeal from an order of the board upon a question as to its jurisdiction or upon a question of law, but the appeal can be taken only by leave of a judge of the court, given upon an application presented within 15 days after the making of the decision and upon the terms that the judge may determine.

             (2)  Notice of the application shall be given to the parties or their solicitor and to the board at least 2 clear days before the presentation of the application.

1989 c37 s99; 1992 c48 s21

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Procedure on appeal

   100. (1) Where the application for appeal has been granted, the appeal shall be brought by notice served on the chairperson or vice-chairperson of the board within 10 days after the permission to appeal has been granted.

             (2)  The notice shall contain the names of the parties and the date of the order appealed from and after the notice has been filed and within 10 days, a copy of the notice shall be served upon the adverse party by the party appealing.

             (3)  An appeal does not operate as a stay of proceedings of an order of the board except as ordered by the board.

1989 c37 s100

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Stated case

   101. The board may of its own motion or upon the application of a party, and upon the security being given as the board directs state a case in writing for the opinion of the Court of Appeal upon a question which in the opinion of the board is a question of law and a similar reference may also be made at the request of the Lieutenant-Governor in Council.

1989 c37 s101

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Court to determine questions of law

   102. The Court of Appeal shall hear and determine the question of law arising in a case stated under section 101 and remit the matter to the board with the opinion of the court attached.

1989 c37 s102

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Disobedience of order of board

   103. (1) A public utility that fails to obey an order of the board made under this Act is liable, on summary conviction, to a fine of not less than $200 and not more than $5,000.

             (2)  Where it is proved that a public utility has failed to obey an order of the board made under this Act, the president and every vice-president, director, managing director, and superintendent of that public utility is liable, on summary conviction, to a fine of not less than $200 and not more than $5,000, unless the person proves that he or she took all necessary and proper means to carry out the order of the board, and that he or she was not at fault for the failure to obey the order.

             (3)  Where it is proved that a municipal corporation has failed to obey an order of the board made under this Act, the mayor, or other head of that corporation, and every member of the council, or other ruling or executive body of the corporation, is liable, on summary conviction, to a fine of not less than $200 and not more than $5,000, unless the person proves that he or she took all necessary and proper means to carry out the order of the board, and that he or she was not at fault for the failure to obey the order.

             (4)  Nothing in or done under this section shall lessen or affect the liability of a public utility or prevent or prejudice the enforcement of an order of the board.

1998 c29 s17

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Penalty for false statement

   104. A director, president, secretary or other official of a public utility who makes a false statement to the board to secure the issue of a share, stock, certificate of stock, bond, mortgage, or other evidence of indebtedness, or who, by a false statement knowingly made, procures of the board the making of the certificate provided for in this Act or with knowledge of the fraud, issues or negotiates the share, stock, certificate of stock, bond, mortgage or other evidence of indebtedness in violation of this Act is liable to a fine of not less than $2,500, or to imprisonment for a term of not less than 1 year, or to both a penalty and imprisonment, in the discretion of the court.

1989 c37 s104; 1998 c29 s18

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Penalty for unjust discrimination

   105. Where a public utility or its agent or officer directly or indirectly charges a person, firm or corporation a greater or less compensation for a service rendered by it than that prescribed in the public schedules or tariffs established, as provided in this Act, or than it charges another person, firm or corporation other than one conducting a similar business for a similar and contemporaneous service, the public utility is guilty of the offence of unjust discrimination, and upon conviction is liable to a fine of not less than $250 for each offence and the agent or officer so offending is upon conviction liable to a fine of not less than $125 for each offence.

1989 c37 s105; 1998 c29 s19

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Penalty for accepting unauthorized compensation

   106. A public utility shall not charge a person, firm or corporation less compensation for a service rendered by the public utility in consideration of the providing by the person, firm or corporation of a part of the facilities incident to the service, but this shall not prohibit a public utility from renting facilities incident to the production, transmission, delivery or providing of heat, light, water or power and paying a reasonable rental, or require a public utility to provide a part of those appliances which are situated in and upon the premises of a consumer or user, and unless otherwise ordered by the board, meters and appliances for measurement of a product or service.

1989 c37 s106; 1998 c29 s20

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Penalty for undue preference or prejudice

   107. Where a public utility knowingly or wilfully makes or gives an undue or unreasonable preference or advantage to a particular person, firm or corporation, or subjects a particular person, firm or corporation to an undue or unreasonable prejudice or disadvantage, the public utility is guilty of the offence of unjust discrimination and a person, firm or corporation violating this section is on conviction liable to a fine of not less than $250 for each offence.

1989 c37 s107; 1998 c29 s21

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Penalty for soliciting or receiving rebate

   108. (1) A person, firm or corporation shall not knowingly solicit or receive a rebate, concession or discrimination in respect of a service in or affecting or relating to a public utility by which the service is rendered free or at a lesser rate than that named in the schedules and tariffs in force as provided in this Act, or by which a service or advantage is received other than as specified in this Act.

             (2)  A person, firm or corporation violating this section shall on conviction be liable to a penalty of not less than $125 for each offence.

1989 c37 s108; 1998 c29 s22

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Penalty for failure to complete forms

   109. (1) An officer, agent or employee of a public utility who fails to fill out and return a form as required by this Act, or fails to answer a question in the form, or wilfully gives a false answer to a question, or evades the answer to a question where he or she had the means of ascertaining the fact inquired of, or who, upon proper demand, fails to exhibit to the board or a commissioner, or an authorized person a book, paper, account, record or memoranda of the public utility, which is in his or her possession or control, or who fails to use properly and keep a system of accounting as prescribed by the board under this Act, or who refuses to do an act or thing in connection with the system of accounting when so directed by the board or its authorized representative is upon conviction liable to a fine of not less than $1,000 for each offence.

             (2)  A fine of not less than $2,500 shall on conviction be imposed on the public utility for each offence under subsection (1) where the officer, agent or employee acted in obedience to the direction, instruction or request of the public utility or an officer.

1989 c37 s109; 1998 c29 s23

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Penalty for destruction of apparatus of board

   110. A person who destroys, injures or interferes with an apparatus or appliance owned or operated by or in the charge of the board or its agents, is upon conviction, liable to a fine not exceeding $500 or imprisonment for a period not exceeding 30 days, or to both a fine and imprisonment.

1989 c37 s110; 1998 c29 s24

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General penalty

   111. (1) A public utility or person who

             (a)  contravenes; or

             (b)  interferes with or obstructs an officer, agent or employee of the board in the discharge of duties under

this Act or the regulations is guilty of an offence and liable on summary conviction, where no penalty is otherwise provided, to a fine of not less than $100 and not more than $5,000.

             (2)  The conviction of a public utility or person under subsection (1) does not operate as a bar to further prosecution for the continued contravention of this Act or the regulations.

1989 c37 s111; 1998 c29 s25

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Separate offence

   112. Every day during which a public utility, or its officer, agent or employee knowingly fails to observe and comply with an order of the board, or to perform a duty required by this Act, constitutes a separate and distinct violation of the order or of this Act.

1989 c37 s112

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Enforcement of penalties

   113. (1) The penalties prescribed by this Act may be recovered or enforced

             (a)  by civil action or proceeding at the suit of the Attorney General, or of a private party with the consent of the Attorney General, in a court having jurisdiction to the amount of the penalty in cases of simple contract; or

             (b)  with similar consent under the Small Claims Act or the Summary Proceedings Act.

             (2)  An action or proceeding for the violation of this Act shall not be started after the expiration of 3 years from the time of the violation.

1989 c37 s113; 1990 c62 s20

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Rep. by 1996 cR-10.1 s61

   114. [Rep. by 1996 cR-10.1 s61]

1996 cR-10.1 s61

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Establishment of pension scheme for commissioners

   115. (1) The Lieutenant-Governor in Council may establish a pension scheme for the award of a pension to a commissioner who is not eligible to receive a pension or gratuity under the Public Service Pensions Act or under a pension scheme established under section 114 or to a surviving spouse or both of them.

             (2)  Pensions awarded under a pension scheme established under this section shall be paid out of the funds of the board.

             (3)  In a pension scheme established under this section specific provision may be made requiring commissioners to pay contributions towards their pensions but in the absence of a specific provision pensions shall be awarded and paid on a non-contributory basis.

             (4)  The Lieutenant-Governor in Council may prescribe

             (a)  the period of service to be done by a commissioner before a pension may be awarded to or in respect of him or her;

             (b)  the remuneration of commissioners which may be taken into account in calculating pensions;

             (c)  the basis for the determination of the amounts of pensions and the method for calculating those amounts;

             (d)  the minimum and maximum amounts of pensions which may be awarded;

             (e)  the contributions towards pensions to be paid by commissioners, the amounts of those contributions and the time and manner of payment;

              (f)  all other terms and conditions upon which pensions shall be awarded and paid;

             (g)  providing for counting towards a pension all or a part of the full time service done by a commissioner before the pension scheme was established; and

             (h)  generally for matters connected with the pension scheme under this section.

             (5)  Where there is an increase in pensions under the Public Services Pensions Act, the Lieutenant-Governor in Council may increase pensions payable under this section by the same percentage, subject to the same minimum and maximum amounts of increase, as pensions under that Act.

             (6)  For the purposes of this section "pension" includes a gratuity.

1989 c37 s115; 1996 cR-10.1 s61

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Rep. by 1996 cR-10.1 s61

   116. [Rep. by 1996 cR-10.1 s61]

1996 cR-10.1 s61

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Consumer advocate

   117. (1) The Lieutenant-Governor in Council may appoint a consumer advocate under this Act upon those terms and conditions that the Lieutenant-Governor in Council may determine.

             (2)  Rep. by 1996 cR-10.1 s61

             (3)  All costs relating to the consumer advocate shall be borne by the board.

1989 c37 s117; 1996 cR-10.1 s61

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Act to be liberally construed

   118. (1) This Act shall be interpreted and construed liberally in order to accomplish its purposes, and where a specific power or authority is given the board by this Act, the enumeration of it shall not be held to exclude or impair a power or authority otherwise in this Act conferred on the board.

             (2)  The board created has, in addition to the powers specified in this Act, all additional, implied and incidental powers which may be appropriate or necessary to carry out all the powers specified in this Act.

             (3)  A substantial compliance with the requirements of this Act is sufficient to give effect to all the rules, orders, acts and regulations of the board, and they shall not be declared inoperative, illegal or void for an omission of a technical nature.

1989 c37 s118

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This Act to prevail

   119. (1) A general, special, public or private Act, whenever enacted, relating to a public utility, as defined by this Act, shall be read and construed as subject in all respects to this Act, and where the general, special, public or private act conflicts with this Act, this Act shall prevail.

             (2)  Subsection (1) shall not apply where and to the extent that this Act has been specifically excluded from a general, special, public or private Act.

1989 c37 s119