Skip to main content
The Public Utilities Board Act
This is an unofficial version.
If you need an official copy, use the bilingual (PDF) version.

This version is current as of March 23, 2017.
It has been in effect since May 1, 2014.

Show previous versions Hide previous versions

Previous versions:

Note: Earlier consolidated versions are not available online.

 

 

C.C.S.M. c. P280

The Public Utilities Board Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act,

"board" means The Public Utilities Board continued under this Act; (« Régie »)

"chairman" means the chairman of the board designated as such under section 5; (« président »)

"company" includes every association, company, corporation or syndicate of persons, whether incorporated or unincorporated; (« compagnie »)

"member" means a member of the board; (« membre »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"municipality" means a city, town, village, rural municipality or local government district; and "municipal" has a corresponding meaning; (« municipalité »)

"owner of a public utility" or "owner" includes

(a) every corporation, including municipal corporations, and every person, firm, or association of persons the business or operations whereof are subject to the authority of the Legislature; and

(b) their lessees, trustees, liquidators or receivers appointed by any court;

that own, operate, manage or control any public utility; (« propriétaire d'un service public » ou « propriétaire »)

"public utility" means, subject to subsections 2(2) and 2(3), any system, works, plant, pipe line, equipment or service

(a) for the transmission of telegraph or telephone messages; or

(b) for the conveyance of persons or goods over a railway, street railway, or tramway, or by motor bus or truck; or

(c) for the production, transmission, delivery, or furnishing of gas, whether natural or manufactured, oil or other fluid petroleum products, water, heat, light, or power;

either directly or indirectly, to or for the public, and includes all such carried on by or for the owner or a municipality or the Government of Manitoba, and also includes any system, works, plant, pipe line, equipment, or service, declared to be a public utility under clause 2(4)(a), a pipeline declared to be a public utility under clause 2(4)(b), and a system of sewage collection or disposal declared to be a public utility under subsection 2(6). (« service public »)

S.M. 1988-89, c. 11, s. 19; S.M. 1992, c. 58, s. 28; S.M. 1993, c. 4, s. 235.

Application of Act

2(1)        Subject to subsections (5) and (5.1), this Act applies

(a) to all public utilities owned or operated by, or under the control, directly or indirectly, of the Government of Manitoba or any municipality in the province;

(b) to all public utilities owned or operated by, or under the control of, any company or corporation that is subject to the legislative authority of the province, or which has by virtue of any agreement with any municipality, submitted to the jurisdiction and control of the board;

(c) to every person, company, or corporation, and local authority owning, operating, or controlling any public utility, including any railway, street railway, or tramway, to which the jurisdiction of the Legislature extends.

Pipeline under Oil and Gas Act

2(2)        Notwithstanding subsection (1), a pipeline to which The Oil and Gas Act applies is not a public utility until it is declared under clause (4)(b) to be a public utility.

Exception for gas etc. in tanks

2(3)        Notwithstanding the definition "public utility", but subject to subsection (4), any system, works, plant, pipe line, equipment or service for the production, transmission, delivery or furnishing of gas, whether natural or manufactured, oil or other fluid petroleum products, or water,

(a) sold and delivered in tanks, cans, bottles, or other containers; or

(b) delivered by means other than pipe lines, using streets, lanes or highways;

is not a public utility.

L.G. in C. may declare public utility

2(4)        The Lieutenant Governor in Council may declare

(a) a system, works, plant, pipe line, equipment or service to which subsection (3) applies; or

(b) a pipeline to which The Oil and Gas Act applies;

to be a public utility, and thereupon the system, works, plant, pipe line, equipment, service or pipeline is a public utility under this Act.

Application to Manitoba Hydro

2(5)        Subject to Part IV of The Crown Corporations Public Review and Accountability Act and except for the purposes of conducting a public hearing in respect of an application made to the board under subsection 38(2) or 50(4) of The Manitoba Hydro Act, this Act, other than subsection 83(4) and the regulations under that subsection, does not apply to Manitoba Hydro and the board has no jurisdiction or authority over Manitoba Hydro.

Act not to apply to railway under Provincial Railways Act

2(5.1)      This Act does not apply to a railway to which The Provincial Railways Act applies.

Board may declare sewage system a public utility

2(6)        The board may declare any system of sewage collection or disposal, including all works, plants, sewage lines and equipment pertaining thereto, to be a public utility; and thereupon that system is a public utility under this Act.

S.M. 1988-89, c. 11, s. 19; S.M. 1988-89, c. 23, s. 38; S.M. 1989-90, c. 90, s. 36; S.M. 1993, c. 32, s. 53; S.M. 1993, c. 4, s. 235.

PART I

ORGANIZATION, PROCEDURE AND POWERS

Continuation of board

3           The Public Utilities Board is hereby continued.

Membership of board

4           The board shall be composed of such number of members, not less than three, as the Lieutenant Governor in Council may determine.

Chairman and vice-chairman

5(1)        The Lieutenant Governor in Council shall designate a member of the board to be chairman thereof and a member to be vice-chairman.

Powers of vice-chairman

5(2)        The vice-chairman shall, during the absence or incapacity of the chairman, have all the powers and authority of, and act as, the chairman.

Member acting as chairman

5(3)        Where separate sittings of the board are held under subsection 15(5), if neither the chairman nor the vice-chairman are present at one of the sittings, the members present at the sitting may elect a member to act as chairman of the board for that sitting.

Duties of chairman

6(1)        The chairman has the supervision of the staff of the board.

Duties of members other than chairman

6(2)        The members shall devote such portion of their time to their duties under this Act as is directed by order of the Lieutenant Governor in Council.

Appointment of members

7           The members shall be appointed by the Lieutenant Governor in Council, and shall be paid such remunerations as determined by the Lieutenant Governor in Council.

Appointment of staff

8           The secretary of the board and such other permanent officers and employees as may be necessary for carrying on the business of the board, shall be appointed as provided in The Civil Service Act.

Term of office

9           Each member shall hold office during pleasure of the Lieutenant Governor in Council.

Powers and seal

10          The board has all the powers of a court of record, and shall have a seal bearing the words "The Public Utilities Board of Manitoba", of which seal the courts shall take judicial notice.

VACANCIES

Vacancies on board

11          The Lieutenant Governor in Council may temporarily fill any vacancy occurring in the membership of the board; but in the case of a vacancy, pending the filling thereof, or in the absence of a member or in the event of a member being unable to act, the remaining members shall exercise all the jurisdiction and powers of the board.

Absence or inability of the chairman

12          In the absence of the chairman or in the event of his inability to act, one of the other members to be designated by resolution of the board, has and shall exercise the jurisdiction and powers of the chairman; and in that case all orders, regulations, and documents signed by that member have the same effect as if signed by the chairman.

Completion of business by substitute

13(1)       A member acting in the absence of the chairman or when the chairman is unable to act, or a person appointed to act in the place of a member may complete any unfinished matter in which he has taken part even if the chairman or the member in whose place he is acting returns or again becomes able to act.

Presumption in such cases

13(2)       Wherever it appears that a member other than the chairman has acted for, or in the place of, the chairman, it shall be presumed that he so acted in the absence or inability of the chairman.

Disabilities of members

14(1)       No member, during his term of office, shall hold any office or carry on any business or employment inconsistent with the performance of his duties under this Act; nor shall he, directly or indirectly,

(a) hold, acquire, or become interested, for his own behalf, in or in any securities, of a public utility or an owner of a public utility or of a company that is the only or principal shareholder of the owner of a public utility;

(b) have an interest in any device, appliance, machine, patented process, or article, or in any part thereof, which may be used for the purposes of the business of a public utility.

Disposal by members of certain things owned or acquired

14(2)       If a member holds any security or interest to which subsection (1) relates, or any interest therein, when he is appointed a member, or if thereafter, and while he is a member, he acquires it by succession or by will, he shall, within six months after his appointment or subsequent acquisition, as the case may be, alienate it or his interest therein.

SITTINGS OF THE BOARD

Place of office of board

15(1)       The government shall provide the board with suitable quarters, furniture, and facilities for the holding of its sittings and the transaction of its business generally.

Conduct of sitting

15(2)       The board shall sit at such times and places within the province as the chairman may designate, and shall conduct its proceedings in such manner as may seem to it most convenient for the speedy and effectual dispatch of business.

Public hearings

15(3)       All sittings of the board or of a member for hearing applications and taking evidence shall be open to the public.

Quorum

15(4)       Save as herein otherwise provided, two members of the board constitute a quorum of the board.

Separate sittings

15(5)       Separate sittings of the board may be held concurrently in different places if a quorum is present at each sitting; and the decision of the majority of the members present at a sitting is the decision of the board.

Choice of members

15(6)       The chairman, or, in his absence or incapacity to act, the vice-chairman may designate which members shall sit at particular times or particular places or to transact particular items of business.

Reports by one member

16          The board or the chairman may authorize a member to report to the board upon any question or matter arising in connection with the business of the board; and that member, where so authorized, has all the powers of the board for the purpose of taking evidence or acquiring the necessary information for the purpose of the report; and, upon the report being made to the board, the board may adopt it as the order of the board, or otherwise deal with it in the absolute discretion of the board.

Use of public buildings for sittings of the board

17(1)       Subject to the prior right of the courts and of judicial and administrative officers to use the court house for the purposes of the administration of justice, where sittings of the board, or of a member, are held in any city, town or place in which a court house is situated, the board or the member has, in all respects, the same authority that is vested in a judge of the Court of Queen's Bench with regard to the use of the court house and other buildings or apartments set apart for the administration of justice.

Use of municipal buildings

17(2)       Subject to the prior right of courts or judicial or administrative officers to use the buildings for the purposes of the administration of justice, and to the prior right of the municipality to use the buildings for municipal purposes, where sittings of the board or of a member are held in any municipality in which there is a hall belonging to the municipality, the municipality shall, upon the request of the board or of the member, allow sittings to be held in the hall without charge.

SECRETARY

Appointment of secretary

18(1)       There shall be a secretary of the board, who shall be appointed as provided in section 8.

Duties of secretary

18(2)       The secretary of the board shall,

(a) keep a record of all proceedings conducted before the board;

(b) have the custody and care of all records and documents of the board;

(c) have every order and rule of practice of the board drawn pursuant to the direction of the board, signed by the chairman, sealed with the seal of the board, and properly filed in its office;

(d) obey all rules of practice and directions that may be made or given by the board touching his duties or office.

Records

18(3)       The secretary of the board shall keep suitable books of record, in which he shall enter a true copy of every order and rule of practice, and every other document that the board orders to be entered therein; and the entry constitutes and is the original record of any such order, rule of practice, or document.

Copies of orders, etc.

18(4)       Upon application of any person, and on payment of such fee as may be prescribed, the secretary of the board shall deliver to the applicant a certified copy of any order, rule of practice, or other document entered in the records under subsection (3).

Absence of secretary

18(5)       In the absence or disability of the secretary of the board, the board may appoint a member or some person from its staff as secretary, pro tempore, to act in the place of the secretary.

EXPERTS AND ASSISTANTS

Technical advisers

19          The Lieutenant Governor in Council may, with or without the recommendation of the board, appoint one or more experts, or persons having technical or special knowledge of the matter in question, to inquire into and report to the board and to assist it in an advisory capacity in respect of any matter before it.

Use of government services

20          For the purpose of any inquiry or examination conducted by it, or in the performance of any of the other duties assigned to it under this or any other Act of the Legislature, or by order of the Lieutenant Governor in Council, the board may, with the consent of the minister in charge of a department of the Government of Manitoba, avail itself of the services of any officer or other employee of that department.

Payment for special services

21          Wherever the Lieutenant Governor in Council or the board, acting within its jurisdiction, appoints or directs any person, other than a member or one of the staff of the board, to perform any service under or required by this Act, that person and such experts and other persons as may be appointed under section 19 may be paid, out of the Consolidated Fund, such sum for services and expenses as the board may determine.

S.M. 1997, c. 11, s. 2; S.M. 1998, c. 9, s. 2.

Salaries and expenses

22          The salaries of the members, the secretary of the board and all other officers, and employees under the board, and all expenses of supplying or maintaining the quarters and furniture of the board, together with expenses incurred by the board in the performance of its duties, including reasonable travelling and subsistence expenses of the members and the secretary, and of such other officer and employees from the staff of the board as may be required to travel in the performance of their duties, shall be paid out of the Consolidated Fund.

Non-personal liability of board and employees

23          Neither the members, nor the secretary of the board, nor any employee under the board, is personally liable for anything done by it or by him under the authority of this or any other Act of the Legislature.

PROCEDURE

Procedure governed by rules

24(1)       All hearings and investigations conducted by the board shall be governed by rules adopted by the board.

Rules of evidence not binding on board

24(2)       The board is not bound by the technical rules of legal evidence.

Rules of practice, their publication

24(3)       The board may make rules of practice, not inconsistent with this Act, regulating its procedure and the times of its sittings, but the rules do not come into force until they are published on the board's website.

Board to have powers of Court of Queen's Bench in certain matters

24(4)       The board, except as herein otherwise provided, as respects the attendance and examination of witnesses, the amendment of proceedings, the production and inspection of documents, the enforcement of its orders, the payment of costs, and all other matters necessary or proper for the due exercise of its powers, or otherwise for carrying any of its powers into effect, has all such powers, rights, and privileges as are vested in the Court of Queen's Bench or a judge thereof.

Witnesses

24(5)       The procedure relating to the attendance of witnesses before the board is that from time to time in force in the Court of Queen's Bench; but a summons to a witness may be signed by a member or secretary of the board.

Evidence by affidavit or report

24(6)       The board may, in its discretion, accept and act upon evidence by affidavit or written affirmation or by the report of a member or of any officer or technical adviser appointed hereunder or obtained in such other manner as it may decide.

Commissions to take evidence out of Manitoba

24(7)       The board may issue commissions to take evidence outside of Manitoba, and make all proper orders for the purpose and for the return and use of the evidence so obtained.

S.M. 2013, c. 39, Sch. A, s. 82.

Maintaining order at meetings

25          The board has full power and authority to maintain order and decorum at all meetings or sittings of, or hearings, investigations, or inquiries conducted by, the board; and for that purpose the chairman or other presiding member of the board may

(a) remove, eject, or exclude, or cause to be removed, ejected, or excluded from any such meeting, sitting, hearing, investigation, or inquiry, any person whom, in his absolute discretion, he deems to be intoxicated or to be, or to be about to become, disorderly or offensive or guilty of any improper conduct thereat; and

(b) require the assistance of any peace officer in maintaining peace and good order at any such meeting, sitting, hearing, investigation, or inquiry or in removing, ejecting, or excluding therefrom any person to whom clause (a) applies.

Protection of witnesses

26(1)       No person shall be excused from testifying or from producing any book, document, or paper in any investigation or inquiry by, or upon a hearing before, the board when ordered so to do by the board, upon the ground that the testimony or evidence, book, document, or paper required of him may tend to incriminate him or subject him to penalty or forfeiture; but except for prosecution or punishment for perjury committed by him in his testimony before the board, no person shall be prosecuted, punished or subjected to any penalty or forfeiture for or on account of any act, transaction, matter, or thing concerning which he has, under oath, testified or produced documentary evidence.

Members and employees not required to give evidence in civil suits

26(2)       No member or employee of the board shall be required to give testimony in any civil suit to which the board is not a party, with regard to information obtained by him in the discharge of his official duties in connection with the board.

No corporate immunity

26(3)       Nothing in this section gives to any corporation immunity of any kind.

S.M. 1989-90, c. 90, s. 36.

Initiation of inquiries

27(1)       The board may of its own motion, and shall upon the request of the Legislature or the Lieutenant Governor in Council, inquire into, hear, and determine any matter or thing within its jurisdiction.

Power to inspect, examine witnesses, documents, etc.

27(2)       The board, or any person authorized by the board to make inquiry or report, may, where it appears expedient,

(a) enter upon and inspect any place, building, works or other property;

(b) require the attendance of all such persons as it or he thinks fit to summon and examine and take the testimony of the persons;

(c) require the production of all books, plans, specifications, drawings and documents;

(d) administer oaths, affirmations, or declarations, and summon witnesses, enforce their attendance, and compel them to give evidence and produce the books, plans, specifications, drawings, and documents, which it or he may require them to produce.

Authority of officers of the board to administer oaths, etc.

27(3)       The board may authorize the secretary of the board, or any person acting as secretary of the board, to administer oaths, affirmations, or declarations, at any hearing or investigation conducted by or for the board.

Power to require doing of acts

28(1)       In matters within its jurisdiction, the board may order and require any owner of a public utility, person, municipality, or other corporation to do any act, matter, or thing that the owner of the public utility, person, municipality, or other corporation is or may be required to do under this Act or any other Act of the Legislature or under any order, regulation, direction, or agreement.

Method of performance

28(2)       Any act, matter, or thing ordered and required to be done under subsection (1) shall be done

(a) forthwith, or within or at any time specified in the order; and

(b) in any manner prescribed by the board, so far as it is not inconsistent with this Act or any other Act of the Legislature conferring jurisdiction upon the board.

In case of default, board may authorize doing of act

29(1)       Where default is made by any owner of a public utility, person, municipality, or corporation in the doing of any act, matter, or thing, that the board has authority, under this or any other Act of the Legislature, to direct and has directed to be done, the board may authorize such person as it sees fit to do the act, matter or thing.

Recovery of expense

29(2)       In every case to which subsection (1) applies the person so authorized may do the act, matter or thing, and the expense incurred in the doing thereof may be recovered from the owner of the public utility, person, municipality or corporation in default as money paid for and at the request of the owner of a public utility, person, municipality or corporation; and the certificate of the board of the amount so expended is conclusive evidence thereof.

Reports to board, expense of

30          The board may appoint or direct any person to make an inquiry and report upon any application, complaint, or dispute pending before the board, or any matter or thing over which it has jurisdiction under this Act or any other Act of the Legislature; and it may order and direct by whom and in what proportion the costs and expenses incurred in making the inquiry and report shall be paid, and may fix the amount of the costs and expenses.

Hearings by single member

31(1)       A single member may hear an application, petition, matter, or complaint, over which the board has jurisdiction under this or any other Act of the Legislature; and after the hearing, the member shall report thereon fully to the board; and the board may thereupon deal with the application, petition, matter, or complaint, as if the hearing had been before the full board.

Proviso as to chairman

31(2)       Where the single member hearing an application, petition, matter or complaint under subsection (1), is the chairman and the application, petition, matter, or complaint, is one respecting which notice is not required to be given, or, being required, has been duly given and the application, petition, matter or complaint is unopposed, he has, and may exercise, any power of the board relating thereto, or he may hear it and report thereon to the board to be dealt with by it as provided in subsection (1).

Further evidence

31(3)       The board is not limited to the contents of a report made under subsection (1) or (2), but may require and hear further evidence.

Local authorities may become complainants

32          Where a municipal council deems that the interests of the public in the municipality, or in a considerable part thereof, are sufficiently concerned, it may, when authorized by resolution, become a complainant or intervenant in any matter within the jurisdiction of the board; and for that purpose the municipal council may take any steps, and incur any expense, and take any proceedings, necessary to submit the question in dispute to the decision of the board, and if necessary may become a party to an appeal therefrom.

Power of board on complaints generally

33          Where the Minister of Justice, a municipality, or a person interested makes a complaint to the board that the owner of a public utility, a municipality, a corporation, or any person, has unlawfully done or unlawfully failed to do, or is about unlawfully to do, or unlawfully not to do, something relating to a matter over which the board has jurisdiction as aforesaid, and requests the board to make some order in the matter, the board shall, after hearing such evidence as it may think fit to require, make such order as it thinks proper under the circumstances.

S.M. 1993, c. 48, s. 93.

Counsel to represent persons interested

34          The chairman may, with the sanction of the Minister of Justice, appoint a barrister or attorney to represent any class of persons interested in any matter concerning public utility service within the jurisdiction of the board, for the purpose of instituting or attending upon an application before the board or any other tribunal or authority; and the board may order by whom the fees and expenses of the person so appointed shall be paid.

S.M. 1993, c. 48, s. 93.

NOTICES AND DOCUMENTS

Notices, how signed

35          Notices respecting matters before or to come before the board that are required or authorized to be in writing may be signed,

(a) if given by the board, by the chairman, or a member, or the secretary of the board; or

(b) if given by a person appointed by the board, by that person; or

(c) if given by any other person, by that person or his agent or solicitor.

Notices, how given

36          A notice required to be given to a company, a municipality, or other corporation, a partnership, firm, or individual shall be deemed to be sufficiently given by the delivery of the notice or a copy thereof, within the time if any, limited therefor,

(a) in the case of a municipality, to the reeve or mayor or to the clerk or secretary-treasurer thereof;

(b) in the case of a company or corporation, to the president, vice-president, manager or secretary, or to some adult employee at the head office or chief place of business of the company or corporation in Manitoba;

(c) in the case of a firm or partnership, to any member thereof, or, at the last known place of abode of any such members, to any adult member of his household, or at the office or place of business of the firm to a clerk employed therein; and

(d) in the case of an individual, to him, or, at his last known place of abode, to any adult member of his household, or, at his office or place of business, to a clerk in his employ.

Notices, service by publication

37(1)       Where, in any application or matter before the board, it is made to appear, to the satisfaction of the board, that service of any notice cannot conveniently be made in the manner hereinbefore prescribed, the board may order and allow service to be made by publication in one issue of The Manitoba Gazette, and also, if thought desirable, in one issue of a local newspaper; and such a publication shall be deemed to be equivalent to service in the manner provided in section 36.

Notices by registered mail

37(2)       The board may act upon an application if satisfied that notice of the application sent by registered mail reached the person on whom it was required to be served.

Notice in certain matters

38          The board may require such notice of an application to, or hearing of, the board as the board deems sufficient, to be given by the person making the application or prosecuting the matter for which the hearing is being held to any party to, or person whom the board considers has an interest in, the application or matter.

Orders in emergencies, without notice

39(1)       Where the board may hear an application, complaint, or dispute, or make an order upon notice to the parties interested, it may, upon the ground of urgency or for other reasons appearing to the board to be sufficient, and notwithstanding any want of or insufficiency in any such notice, make the like order or decision in the matter as if due notice had been given to all parties; and that order or decision is as valid and effective in all respects as if made after such notice had been given.

Relief to persons affected thereby

39(2)       Where an order or decision made under subsection (1) affects a person entitled to notice who was not sufficiently notified, he may, within 10 days after becoming aware of the order or decision, or within such further time as the board may allow, apply to the board to vary, amend, or rescind the order or decision; and the board shall thereupon, on such notice to others interested as it may think desirable, hear the application, and either amend, alter, or rescind the order or decision or dismiss the application.

DOCUMENTS AND RECORDS

Documents from public offices

40(1)       An owner of a public utility or a municipality to whom the board makes application for statements, reports, copies of documents, or information of any kind, shall furnish the required statements, copies or information to the board free of cost.

Certificates, searches, etc., without charge to board

40(2)       The district registrars of land titles districts throughout the province, and the several departments of the Government of Manitoba, shall furnish the board with such certificates and certified copies of documents as the board may in writing require, without charge; and the board and any member or official of the board thereunto authorized may at any time search in the public records of the land titles offices without charge.

Documents of corporations as evidence

41          Every written or printed document purporting to have been issued or authorized by a corporation or any officer, agent, or employee of a corporation, or by any other person or corporation, for or on its behalf, shall, as against the corporation, be received in evidence, in matters before the board, as prima facie proof without any further evidence than the mere production of the document.

Documents of board as evidence

42(1)       Every order, regulation, decision, direction, licence, certificate or other document purporting to be signed by the chairman or by a member of the board, and countersigned by the secretary of the board, shall, without further evidence of the signatures, be received in evidence as prima facie proof of its execution and issue by the board, and is sufficient notice of the contents thereof to a corporation, municipality, and all parties interested, if served in the manner hereinbefore provided for the giving of notice, and of its execution and issue by the board.

Copies

42(2)       Where a document purports to be a copy of any regulation, order, direction, decision, or report, made or given by the board, or any of its officers, it shall be received in evidence as prima facie proof of the regulation, order, direction, decision, or report and, where served in the manner hereinbefore provided, is sufficient notice of the regulation, order, direction, decision, or report from the time of the service.

Certified copies of documents deposited with board

43(1)       Any document purporting to be certified by the secretary as a copy of any document deposited with the board, or of any portion thereof, shall, without further evidence as to the signature of the secretary, be received in evidence as prima facie proof of the original document, and that it is so deposited, and is signed, certified, attested, or executed by the persons by whom and in the manner in which it purports to be signed, certified, attested, or executed, as shown or appearing from the certified copy, and also, if the certificate states the time when the original was so deposited, that it was deposited at the time so stated.

Copies of order, etc., under seal of board

43(2)       A copy of any order, regulation or other document in the custody of the secretary of the board, or of record with the board, purporting to be certified by the secretary under the seal of the board as a true copy of the order, regulation or other document, shall be received in evidence as prima facie proof of the order, regulation or document without further evidence as to the signature of the secretary.

ORDERS OF THE BOARD

Power to order partial or other relief

44(1)       Upon any application to it, the board may make an order granting the whole or part only of the application or may grant such further or other relief in addition to or in substitution for that applied for, as fully and in all respects as if the application had been for such partial, further or other relief.

Review of orders

44(2)       The board may require a re-hearing of an application before making any decision thereon.

Varying order

44(3)       The board may review, rescind, change, alter, or vary any decision or order made by it.

Interim orders ex parte

45          The board may, if the special circumstances of any case so require, make an interim ex parte order authorizing, requiring, or forbidding, anything to be done that the board would be empowered on application, petition, notice, and hearing to authorize, require, or forbid; but no such order shall be made for any longer time than the board deems necessary to enable the matter to be heard and determined, on such application, petition, notice or hearing.

Extension of time for compliance with order

46          Where any work, act, matter, or thing, by any order, regulation, or decision of the board is required to be done, performed, or completed within a specified time, the board may, if the circumstances appear so to require, upon such notice as it deems reasonable, or, in its discretion, without notice, extend the time so specified.

Orders subject to conditions

47(1)       The board may direct, in any order, that the order or any portion or provision thereof shall come into force

(a) at a future fixed time; or

(b) upon the happening of any contingency, event, or condition specified in the order; or

(c) upon the performance to the satisfaction of the board, or a person named in the order for the purpose, of any terms that the board may impose upon any party interested;

and the board may direct that the whole or any portion of the order shall have force for a limited time, or until the happening of a specified event.

Interim order

47(2)       The board may, instead of making an order final in the first instance, make an interim order and reserve further directions, either for an adjourned hearing of the matter, or for further application.

Orders involving expense to parties to be after notice and hearing

48          The board shall not make an order involving any outlay, loss, or deprivation to any owner of a public utility, or any person without due notice and full opportunity to all parties concerned, to produce evidence and be heard at a public hearing of the board, except in case of urgency; and in that case, as soon as practicable thereafter, the board shall, on the application of any party affected by the order, re-hear and reconsider the matter and make such order as to the board seems just.

Contents of order

49(1)       The board need not show upon the face of an order that any proceeding or notice was had or taken, or that there existed any circumstances necessary to give it jurisdiction to make the order.

Substantial compliance with Act only required

49(2)       A substantial compliance with the requirements of this Act is sufficient to give effect to all the orders, rules, acts, regulations, or decisions of the board; and they are not inoperative, illegal, or void for any omission of a technical nature with respect thereto.

When orders effective

50(1)       Every order of the board comes into effect at the time prescribed by the order, and its operation is not suspended by an appeal to The Court of Appeal for which provision is hereinafter made, unless otherwise ordered by the judge granting leave to appeal or by the court on hearing of the appeal; but the board itself may suspend the operation of the order from which appeal is made until the decision of The Court of Appeal is rendered.

Lapse of order

50(2)       Except where the board extends the time for taking the action, unless action under an order of the board authorizing any action to be taken, is taken within one year of the date of the order, the order is void at the expiration of one year from its date.

SERVICE OF ORDERS

Service generally

51(1)       Any order, regulation, decision, direction, report, or other document made or issued by or for use before the board requiring to be served upon any person, may, unless otherwise provided herein, be served in like manner as notice may be given hereunder or by mailing a certified copy thereof, in a sealed package with postage prepaid, to the person to be served, or, in the case of a corporation, to any officer or agent thereof upon whom a summons may be served in accordance with the law in the province.

Service within 10 days

51(2)       Every order made by the board shall be served upon the person affected thereby within 10 days from the time the order is signed, or within such longer time as the board may direct.

Enforcement of orders

52(1)       A party to any matter before the board may enforce observance of an order of the board in the matter by obtaining a written direction to a sheriff, endorsed upon, or annexed to, a certified copy of any such order and signed by the chairman of the board; and, in the case of an order for payment of any money, costs, expenses, or penalty, the sheriff receiving the direction shall levy the amount with his costs and expenses in like manner, and with the same powers, as if the order were an execution against the goods of the party to pay issued out of the Court of Queen's Bench.

When order to become lien against lands

52(2)       In the case of an order of the board for payment of any money, costs, expenses, or penalty, a certificate of the order, signed by the secretary, may be registered in the office of any land titles district in the province; and when so registered it constitutes a lien and charge upon any lands or interest therein, of the party or person or company ordered to pay the money, in the land titles district in which the office is situated, to the same extent, and in the same manner, as the lands would be bound by the registration of a certificate of a judgment of the Court of Queen's Bench.

Realization of amount payable

52(3)       The amount ordered to be paid by an order registered under subsection (2) may be realized in the same manner, and by similar proceedings, as the amount of any registered judgment of the Court of Queen's Bench may be realized.

Sheriffs and constables to assist board

52(4)       Sheriffs, deputy sheriffs, constables, and other peace officers, whenever required to do so, shall aid and assist the board in the performance of its duties.

S.M. 1997, c. 11, s. 3.

Effect of publication in Gazette

53          Courts shall take judicial notice of every order, rule, regulation, or decision of the board when published by the board in one issue of The Manitoba Gazette or on the board's website.

S.M. 2013, c. 39, Sch. A, s. 82.

Finality of orders

54          Subject only to the right of appeal for which provision is hereinafter made, and to subsection 44(3), every decision or order of the board is final.

PENALTY

General penalty

55          Every person who violates any provision of this Act or any order, regulation, or direction of the board, for the violation of which no other penalty is provided by law, is guilty of an offence and is liable, on summary conviction, to a fine of not more than $500. and costs, and, in default of payment, to imprisonment for a term not exceeding six months.

COSTS

Costs in discretion of board

56(1)       The costs of, and incidental to, any proceeding before the board are in the discretion of the board, and may be fixed in any case at a sum certain or may be taxed.

Order for payment of costs

56(2)       The board may order by whom, and to whom, any costs are to be paid, and by whom the costs are to be taxed and allowed.

Scale of costs

56(3)       The board may prescribe a scale under which the costs shall be taxed.

S.M. 1997, c. 11, s. 4.

FEES

Tariff of fees

57(1)       Subject to the approval of the Lieutenant Governor in Council, the board may prescribe a tariff of the fees that shall be paid to the board by owners of public utilities and persons who are parties to, or interested in, matters coming before the board in respect of which no fee is otherwise prescribed.

Deposit before certain inquiries made

57(2)       The board may also require that, before beginning any investigation on the complaint of any person, the person complaining shall deposit with the board such sum as may be deemed necessary to make the investigation, and the deposit shall be returned in whole or in part to the person complaining if, upon investigation, the complaint is found justified or partly justified, or to be less costly to investigate than was deemed necessary when the deposit was made, as the case may be; otherwise the deposit is forfeited to the board.

Audit

57(3)       The accounts of the board are subject to audit by the Auditor General, and all moneys to the credit of the board in the accounts shall be paid into the Consolidated Fund at the end of each fiscal year of the province or at such time or times as the Lieutenant Governor in Council may order.

S.M. 2001, c. 39, s. 31.

APPEAL

Grounds of appeal

58(1)       An appeal lies from any final order or decision of the board to The Court of Appeal upon

(a) any question involving the jurisdiction of the board; or

(b) any point of law; or

(c) any facts expressly found by the board relating to a matter before the board.

Leave to appeal

58(2)       The appeal shall be taken only

(a) by leave to appeal obtained from a judge of The Court of Appeal;

(b) within one month after the making of the order or decision sought to be appealed from, or within such further time as the judge under special circumstances shall allow; and

(c) after notice to the other parties stating the grounds of appeal.

Setting down for hearing and notice

58(3)       Upon the leave being obtained, the registrar of The Court of Appeal shall set the appeal down for hearing at the next sitting of the court; and the party appealing shall, within 10 days, give to the parties affected by the appeal or the solicitors, if any, by whom the parties were represented before the board, and to the secretary of the board, notice in writing that the case has been so set down.

Transmission of material to court

58(4)       The secretary of the board, forthwith upon receipt of the notice, shall transmit to the registrar of The Court of Appeal all documents and material from the files of the office of the board that were before the board upon the making of the order or decision from which appeal is made and that have any bearing upon the question in the appeal.

Inferences by court

58(5)       On the hearing of the appeal, the court may draw inferences that are not inconsistent with the facts expressly found by the board and that are necessary for determining the question, and shall certify its opinion to the board; and the board shall thereupon make an order in accordance with that opinion.

Board to be heard

58(6)       The board is entitled to be heard, by counsel or otherwise, upon the argument of any appeal.

Costs of appeal and rules of practice

58(7)       The Court of Appeal may fix the costs and fees to be taxed, allowed, and paid upon any appeal and make rules of practice respecting appeals under this section; but, until such rules are made, the rules and practice applicable to appeals from a judge of the Court of Queen's Bench to The Court of Appeal apply to appeals under this Act.

Immunity of board

58(8)       Neither the board, nor any member or employee of the board, is in any case, liable to costs by reason of, or in respect of, an appeal or application.

Return of material to board

58(9)       At the conclusion of the appeal, the registrar of The Court of Appeal shall return to the secretary of the board all documents and material received from him, together with a copy of the record of the court and of the reasons of the judges of the court for the judgment rendered.

58.1 to 58.3[Never proclaimed]

S.M. 1987-88, c. 65, s. 18 (rep. by S.M. 2000, c. 35, s. 18).

Reference to Court of Appeal

58.4(1)     The board may, of its own motion or on the application of any party to proceedings before the board, state a case in writing for the opinion of the Court of Appeal upon any question of law or jurisdiction.

Court of Appeal to remit decision

58.4(2)     The Court of Appeal shall hear and determine the stated case and remit it to the board with its opinion.

Proceedings, etc. not stayed

58.4(3)     A case stated pursuant to this section does not stay or suspend any proceedings of the board or stay or suspend the operation of any decision or order of the board.

S.M. 1988-89, c. 23, s. 38; S.M. 1989-90, c. 90, s. 36.

PART II

CONTROL OF PUBLIC UTILITIES

How application made

59(1)       A person applying to the board under this Act shall apply in writing, addressing the application to the secretary of the board, and shall submit with the application any schedule of tolls or rates or any other material relevant to the application.

When authorization of board to be applied for

59(2)       Where, under any Act of the Legislature, a municipality, school district, school area, secondary school area, or school division, is required to have the authorization or approval of the board for, or in respect of, any act, matter, or thing that is required to be done by by-law, the application for the authorization or approval shall be made to the board after the first reading but before the second reading of the by-law; and, in cases where the assent of the ratepayers or voters is required, before the by-law is submitted to a vote of the ratepayers or voters.

S.M. 2005, c. 27, s. 163.

Further action to await disposal of application

60          Except as provided in this Act, or in some other Act of the Legislature affecting the public utility or corporation concerning which the application is made, the owner of the public utility or the corporation shall take no further steps upon the subject matter of the application until the board has made an order or otherwise disposed of the application.

Elements of rate base

61          Where rate base is a factor in determining just and reasonable rates or tolls, the board shall allow a rate of return based on a rate base that includes, as basic elements,

(a) the original or historic cost of the assets, used and useful and prudently acquired, less depreciation; and

(b) a reasonable amount for the working capital required for the operation of the business.

Notice of decision to applicant

62          Upon the board making a decision or an order in respect of an application or matter before the board, the secretary of the board shall forthwith advise the applicant or parties affected of the decision or order; and, where requested by the applicant he shall mail or deliver to the applicant a certified copy of the decision or order.

JURISDICTION AND POWERS OF BOARD IN RESPECT OF PUBLIC UTILITIES

Jurisdiction as to carriers

63(1)       The board has jurisdiction in all questions relating to the transportation of goods or passengers by any corporation, municipal or otherwise, on any part of any tram-line, or street railway line, or steam railway line or motor bus line under the jurisdiction of the Legislature, and may authorize or require any such corporation to carry goods or passengers on its lines or any part thereof for any period of time and at such prices as it may fix.

Jurisdiction of traffic board preserved

63(2)       Nothing in subsection (1) limits or affects the jurisdiction of The Highway Traffic Board established under The Highways Protection Act.

Investigation of excess charges

64(1)       Where

(a) it is made to appear to the board, upon the complaint of an owner of a public utility, or of any municipality or person having an interest, present or contingent, in the matter in respect of which the complaint is made, that there is reason to believe that the tolls or charges demanded by any owner of a public utility exceed what is just and reasonable, having regard to the nature and quality of the service rendered or of the commodity supplied; or

(b) requested to do so by the minister; or

(c) in the opinion of the board it is expedient to do so, on its own initiative;

the board may proceed to hold such investigation as it sees fit into all matters relating to the nature and quality of the service or the commodity in question, or to the performance of the service and the tolls or charges demanded therefor.

Order on investigation

64(2)       Upon completion of an investigation made under subsection (1), the board may make such order respecting the improvement of the service or commodity and as to the tolls or charges demanded, as seems to it to be just and reasonable, and may disallow or change, as it thinks reasonable, any such tolls or charges as, in its opinion, are excessive, unjust, or unreasonable or unjustly discriminate between different persons or different municipalities, but subject, however, to such of the provisions of any contract existing between the owner and a municipality at the time the complaint is made as the board considers fair and reasonable.

Increase or decrease of contractual rate

65(1)       Where, by any contract between an owner of a public utility and any municipality, other corporation, or person for the supply of any commodity or service by means of the public utility, the rate, toll or charge is agreed upon either as a fixed or variable rate, toll, or charge, or a maximum or minimum rate, toll, or charge, and whether the rate, toll, or charge is agreed upon with respect to a present or future supply of an existing or non-existing commodity or service, then, notwithstanding any other provision of this Act, upon the application of the owner, municipality, corporation or person, and if, upon the hearing of the application, it is shown that the rate, toll, or charge is insufficient, excessive, unjust, or unreasonable, the board may change the rate, toll or charge to such other greater or lesser rate, toll or charge, as it deems fair and reasonable.

When applicable

65(2)       This section does not apply to contracts made before January 1, 1928, except by the consent of the parties thereto duly filed with the board or with The Municipal and Public Utility Board as that board was constituted under The Municipal and Public Utility Board Act, prior to the hearing of the application; and in the absence of a filed consent all statutory provisions applicable, prior to January 1, 1928, to the contracts and to the price to be charged for the supply of a commodity or service thereunder are applicable thereto.

Saving clause

65(3)       Nothing in this section is or involves a declaration as to the state of the laws in force prior to January 1, 1928, or to the coming into force of this section.

Order requiring vote of ratepayers

66          Where, under any Act of the Legislature, a by-law or contract of a municipality is not valid until the approval or authorization of the board has been given thereto, and under that Act the by-law or contract is valid without the consent or sanction of the ratepayers or voters being given thereto by a vote, the board, notwithstanding that Act may, as a condition of giving its approval or authorization thereto, by order require the municipality to submit the by-law or contract for the sanction of the voters or ratepayers by taking a vote thereof at the time, and in accordance with the conditions, set out in the order.

S.M. 2005, c. 27, s. 163.

Use of highways, watercourses, etc.

67          Where an owner of a public utility, having the right to enter a municipality for the purpose of placing therein, with or without the consent of the municipality, rails, posts, wires, pipes, conduits, or other appliances, upon, along, across, over, or under any public highway, street, square, watercourse, or part thereof, cannot come to an agreement with the municipality, or the authority having jurisdiction, as to the use of the highway, street, square, or watercourse in question, or as to the terms and conditions of the use, and applies to the board for permission to use the highway, street, square, or watercourse, or to fix the terms and conditions of the use, the board may permit the use of the highway, street, square, or watercourse, and prescribe the terms and conditions thereof.

Crossing territory of municipality to reach other territory

68          Where an owner of a public utility, being unable to extend its system, line, or apparatus from a point where it lawfully does business to another point where it is authorized to do business, without placing its rails, posts, wires, pipes, conduits, or other apparatus upon, along, across, over, or under a public highway, street, square, watercourse, or part thereof, that it cannot lawfully so use without the consent of the municipal corporation or the authority having control thereof, and being unable to come to an agreement with the municipal corporation or the authority, applies to the board for permission to use the public highway, street, square, watercourse, or part thereof, for the purposes of the extension only, and without unduly preventing the use thereof by other persons or companies already lawfully using it, the board may permit the use, notwithstanding any law or contract granting any other person or corporation exclusive rights with respect thereto, but shall prescribe the terms and conditions upon which the owner may use the highway, street, square, or watercourse, or part thereof.

Extension of services

69          Upon the complaint of any municipality that an owner of a public utility doing business in the municipality fails to extend its services to any part of the municipality, after hearing the parties and their witnesses, and making such inquiry into the matter as it sees fit, the board may order the extension of the service, and specify the conditions under which the extension shall be made, including the costs of all necessary works, which it may apportion between the owner of the public utility and the municipality in any manner it deems equitable.

Transmission lines in rural municipalities

70          Where an owner of a public utility operated for the production, transmission, delivery, or furnishing of electric heat, light, or power is unable to extend its system, line, or apparatus in or through a rural municipality, without placing its posts, wires, or other apparatus upon, along, across, or over a public highway or street in the municipality, and applies to the board for permission to use the highway or street for the purpose of the extension only, and without unduly interfering with the use thereof by other persons or corporations already lawfully using the highway or street, the board, after submitting the matter to the council of the municipality and giving due weight to the representations made by the council, may, by its order, permit the extension and make it subject to such conditions as the interest of the public or of the municipality may require.

Use of highways, bridges, etc.

71          Subject to the terms of any contract between an owner of a public utility and any municipality, and of the franchise or rights of the owner, the board may define or prescribe the terms and conditions upon which the owner shall or may use, for any of the purposes of the public utility, any highway or any public bridge or subway constructed or to be constructed by the municipality, or two or more municipalities, and may enforce compliance with the terms and conditions.

Removal of works from highways

72          Where the operation of a public utility is being discontinued or has been discontinued by the owner, the board may require the owner to remove its works from the highways or may order that the owner be permitted to leave the works or any of them in or under the highways on such terms and conditions as may be fixed by the board.

Disputes between utility and municipality

73          Where differences arise between an owner of a public utility and a municipality or other authority with reference to the performance of the terms and conditions mentioned in sections 67 to 71, the board on application may change those terms and conditions if, in its opinion, the changes are necessary or desirable.

General supervision over utilities

74(1)       The board has a general supervision over all public utilities and the owners thereof subject to the legislative authority of the Legislature, and may make such orders regarding equipment, appliances, safety devices, extension of works or systems, reporting, and other matters, as are necessary for the safety or convenience of the public or for the proper carrying out of any contract, charter, or franchise involving the use of public property or rights.

Inquiries by board

74(2)       The board shall conduct all inquiries necessary for the obtaining of complete information as to the manner in which owners of public utilities comply with the law, or as to any other matter or thing within the jurisdiction of the board.

Board may refrain from exercising power

74.1(1)     The board may make a determination to refrain, in whole or in part and conditionally or unconditionally, from the exercise of any power or the performance of any duty under this Act

(a) in relation to any matter before it; or

(b) in relation to

(i) any public utility,

(ii) any person who is subject to this Act, or

(iii) any product or class of products supplied or service or class of services rendered within the province by a public utility, or by a person referred to in subclause (ii), that is subject to this Act;

where the board finds as a question of fact that the public utility, person, product, class of products, service or class of services is or will be subject to competition sufficient to protect the public interest.

Exception

74.1(2)     The board shall not make a determination to refrain under subsection (1) in relation to a public utility, person, product, class of products, service or class of services, if the board finds as a question of fact that to refrain would be likely to impair unduly the establishment or continuation of a competitive market for that public utility, person, product, class of products, service or class of services.

Imposition of conditions on associated person

74.1(3)     Where the board considers it appropriate in relation to a determination under subsection (1) to refrain from exercising any power or performing any duty in relation to a product or class of products supplied or service or class of services rendered by a public utility or by a person referred to in subclause (1)(b)(ii), it may impose conditions on any person or company associated, in supplying the product or class of products or rendering the service or class of services, with

(a) the public utility;

(b) the owner of the public utility; or

(c) the person.

S.M. 1997, c. 11, s. 5.

Receivers, etc., subject to board

75          The fact that a receiver, manager, or other official of any public utility, or a sequestrator of the property thereof, has been appointed by any court in the province, or is managing or operating a public utility under the authority of any such court, or that the public utility is being wound up voluntarily, does not prevent the exercise by the board of any jurisdiction conferred by this Act; but every receiver, manager, or official is bound to manage and operate any such public utility in accordance with this Act and with the orders and directions of the board, whether general or referring particularly to the public utility; and every such receiver, manager, or official, and every person acting under him, shall obey all orders of the board within its jurisdiction in respect of the public utility, and is subject to having them enforced against him by the board, notwithstanding the fact that the receiver, manager, official, or person is appointed by, or acts under the authority of, any court.

General powers

76          The board may

(a) investigate, upon its own initiative, upon a request of the minister or the Lieutenant Governor in Council, or upon complaint in writing, any matter concerning any public utility;

(b) appraise and value the property of any public utility wherever in the judgment of the board it is necessary so to do, for the purpose of carrying out any provision of this Act, and in making the valuation, may have access to and use any books, documents, or records in the possession of any department of the executive government of the province or of any board, commission, or association that reports to the government or of any municipality in the province;

(c) require every owner of a public utility to file with it complete schedules of every classification employed and of every individual or joint rate, toll, fare, or charge made, charged, or enacted by it for any product supplied or service rendered within the province as specified in the requirement.

Orders as to utilities

77          The board may, by order in writing after notice to, and hearing of, the parties interested,

(a) fix just and reasonable individual rates, joint rates, tolls, charges, or schedules thereof, as well as commutation, mileage, and other special rates that shall be imposed, observed, and followed thereafter, by any owner of a public utility wherever the board determines that any existing individual rate, joint rate, roll, charge or schedule thereof or commutation, mileage, or other special rate is unjust, unreasonable, insufficient, or unjustly discriminatory or preferential;

(b) fix just and reasonable standards, classifications, regulations, practices, measurements, or service to be furnished, imposed, observed, and followed thereafter by any such owner;

(c) direct any railway, street railway, or traction company, to establish and maintain at any junction or point of connection or intersection with any other line of the road, or with any line of any other railway, street railway, or traction company, such just and reasonable connections as may be necessary to promote the convenience of shippers of property, or of passengers, and in like manner may direct any railway, street railway, or traction company engaged in carrying merchandise to construct, maintain, and operate, upon reasonable terms a switch connection with any private side-track that may be constructed by any private shipper to connect with the railway or street railway where, in the judgment of the board, the connection is reasonable and practicable and can be put in with safety, and will furnish sufficient business to justify the construction and maintenance thereof.

Orders as to owners

78(1)       The board may, by order in writing and notice to, and hearing of, the parties interested, require every owner of a public utility

(a) to comply with the laws of the province and any municipal by-law affecting the public utility or its owner, and to conform to the duties imposed thereby, or by the provisions of its own charter, or by any agreement with any municipality or other owner;

(b) to furnish safe, adequate, and proper service, and to keep and maintain its property and equipment in such condition as to enable it to do so;

(c) to establish, construct, maintain, and operate any reasonable extension of its existing facilities where, in the judgment of the board, the extension is reasonable and practicable and will furnish sufficient business to justify the construction and maintenance thereof, and when the financial condition of the owner reasonably warrants the original expenditure required in making and operating the extension;

(d) to keep its books, records, and accounts so as to afford an intelligent understanding of the conduct of its business, and to that end, in the case of owners of public utilities of the same class, to adopt a uniform system of accounting, which system may be prescribed by the board;

(e) to furnish periodically, and in any case where the board requires, a detailed report of finances and operations, in such form, and containing such matters, and verified in such manner, as the board may, from time to time in that behalf, by order prescribe;

(f) to carry, whenever in the judgment of the board it may reasonably be required, for the protection of the holders of securities or creditors of the owner, a proper and adequate depreciation account in accordance with such rules, regulations, and forms of account as the board may prescribe;

(g) to give such notice to the board as it may by order require, of all accidents that occur within the province upon the property of the public utility or that directly or indirectly arise out of, or are connected with, its maintenance or operation, and to investigate any accident;

(h) to apply to the Canadian Transport Commission, or such other tribunal or municipal or other body or official, as may have jurisdiction or authority in the premises, for permission, where necessary, to undertake any work ordered by the board contingently on the permission being granted.

Fixing of rates of depreciation

78(2)       The board shall, from time to time, ascertain and determine, and by order in writing after a hearing fix, proper and adequate rates of depreciation of the property of each public utility, in accordance with the regulations or classifications, and the rates shall be sufficient to provide the amounts required, over and above the expense of maintenance, to keep the property in a state of efficiency corresponding to the progress of the industry.

Establishment of depreciation fund

78(3)       Every owner of a public utility shall make its depreciation accounts conform to the rates ascertained, determined, and fixed under subsection (2), and shall set aside the moneys so provided for out of earnings, and carry the moneys in a depreciation fund; and the income from investments of moneys in the fund shall likewise be carried in the fund.

Expenditure from fund

78(4)       The owner of a public utility shall not expend moneys in a fund to which subsection (3) refers otherwise than for depreciation, improvements, new constructions, extensions, or additions to the property of the public utility or retirement of bonds and debentures issued by it.

Orders respecting accidents

78(5)       The board may make such order or recommendation with respect to any accident or matter to which clause (1)(g) refers as in its judgment may be just and reasonable.

Joint user of poles, etc.

79          Where it is in the public interest, or where, as a means of saving expense, it is in the interest of two or more owners of public utilities that there be joint use of the means of distribution, including poles, conduits, or other equipment, the board may, after notice to all parties concerned, in cases where it is practicable, order the joint use of such means of distribution and declare the terms thereof, and by the order or subsequent order may make such provision as may be necessary for the convenient and effectual carrying out of the work, and the operation of the services by means of the equipment to be jointly used.

Span wires of street railways

80(1)       For the purpose of clearing and improving the appearance of streets, and wherever it may be found practicable to do so, the board may, after notice to all parties concerned, direct that the wires known as span wires of street railway companies or tram-line companies shall, on any street or part of a street, be affixed to buildings on the properties abutting on the street.

Expense

80(2)       No direction under subsection (1) shall be made so as to involve any expense to the owner of any building, but the expense shall be paid by the municipality or street railway company or tram-line company, or by the two jointly, as the board may direct.

Injuries to building

80(3)       The directions given under subsection (1) and the work done pursuant to those directions shall be given and carried out, in such a way that no permanent injury to any building or inconvenience to the owner or occupant thereof is caused.

Right of entry

80(4)       The necessary access to any building for the purpose of performing the work necessary to carry out directions given under subsection (1) shall be afforded to the owner of the public utility by the owner of the building; and, in case of any question affecting the access, the board shall give proper directions.

Reports on personnel of corporations

81          The board may require any corporation that is the owner of a public utility to file with the board a statement in writing, verified by the oaths of the president and secretary thereof, respectively, setting forth the name, title of office or position, and post office address, and the authority, power, and duties, of every officer, member of the board of directors, trustee, executive committee, superintendent, chief or head of construction and operation or department, division, or line of construction and operation thereof, in such form as to disclose the source and origin of each administrative act, rule, decision, order, or other action of the corporation, and within 10 days after any change is made in the title of, or authority, powers, or duties appertaining to, any such office or position, or the person holding the office or position, to file with the board a like statement, verified in like manner, setting forth the change.

RESTRICTION ON POWERS OF OWNERS OF PUBLIC UTILITIES

Discriminatory rates

82(1)       No owner of a public utility shall

(a) make, impose, or exact any unjust or unreasonable, unjustly discriminatory, or unduly preferential, individual or joint rate, commutation rate, mileage, or other special rate, toll, fare, charge, or schedule, for any product or service supplied or rendered by it within the province;

(b) without the written authorization of the board and subject to subsection (2), make, impose, exact, or collect, any rate, toll, fare, or charge, or any schedule of rates, either individual or joint, for any product supplied or service rendered by it within the province;

(c) adopt or impose any unjust or unreasonable classification in the making, or as the basis, of any individual or joint rate, toll, fare, charge, or schedule for any product or service rendered by it within the province;

(d) adopt, maintain, or enforce any regulation, practice, or measurement that is unjust, unreasonable, unduly preferential, arbitrarily or unjustly discriminatory, or otherwise in violation of law, or provide or maintain any service that is unsafe, improper, or inadequate, or withhold or refuse any service that can reasonably be demanded and furnished when ordered by the board;

(e) make or give, directly or indirectly, any undue or unreasonable preference or advantage to any person or corporation, or to any locality, or to any particular description of traffic in any respect whatsoever, or subject any particular person or corporation or locality, or any particular description of traffic, to any prejudice or disadvantage in any respect whatsoever;

(f) subject to subsection (3), issue any stocks, stock certificates, bonds, or other evidences of indebtedness payable in more than one year from the date thereof, unless it has first obtained authority from the board for the proposed issue;

(g) subject to subsection (9),

(i) capitalize its right to exist as a corporation; or

(ii) capitalize any right, franchise, or privilege in excess of the amount (exclusive of any tax or annual charge) actually paid to the government or any municipality in the province as the consideration therefor; or

(iii) capitalize any contract for consolidation, merger, or lease; or

(iv) issue any securities against, or as a lien upon, any contract for consolidation, merger, or lease;

(h) without the approval of the board, sell, lease, mortgage, or otherwise dispose of or encumber its property, franchises, privileges, or rights, or any part thereof, or merge or consolidate its property, franchises, privileges, or rights, or any part thereof, with that of any other public utility or its owner;

(i) subject to subsections (12) and (13), enter into any contract or arrangement, other than a contract to provide the services that the public utility provides, at rates approved by the board, with a company or firm in which the owner of the public utility or a director thereof has an interest, unless the public utility has filed with the board the contract, or a memorandum describing and giving full details of the arrangement, and has received from the board a written acknowledgment that the filing has been made as required herein;

(j) discontinue service to the public without authorization of the board at least one year prior to discontinuance, unless otherwise provided in the statute or agreement under which the public utility is operated;

(k) declare or pay any dividend, or effect any other distribution of the assets of the utility, when it appears likely that an application will be made in the foreseeable future for authority to discontinue service to the public, unless authorization of the board is first obtained;

(l) declare or pay any dividend, or effect any other distribution of the assets of the utility, at a time when a subsisting order of the board prohibiting the owner from declaring or paying dividends or effecting any other distribution of or from the assets of the utility is in force, unless authorization of the board is first obtained;

(m) declare or pay any dividend, or effect any other distribution of the assets of the utility, that would contravene any restriction on the payment or declaration of dividends or other distribution of the assets of the utility imposed by a subsisting order of the board, unless authorization of the board is first obtained.

Application of clause (1)(b)

82(2)       Clause (1)(b) does not apply

(a) subject to clause 76(c) and clause 77(a), to any individual joint, or special rate, toll, fare, or charge, or any schedule of rates, commutation, or mileage, that was in effect prior to the coming into force of this Act;

(b) subject to clause 76(c) and clause 77(a), to any individual joint, or special rate, toll, fare, or charge made by the owner of the public utility for any product supplied or service rendered or to any contract covering an individual, joint, or special rate, toll, fare, or charge made or entered into by such an owner for such a product or service; or

(c) to any appliance sold by a public utility or to services rendered in respect thereof.

Where clause (1)(f) not applicable

82(3)       Clause (1)(f) does not apply to a municipality or to the city of Winnipeg.

Where clause (1)(h) does not apply

82(3.1)     Clause (1)(h) does not apply to the sale of the city's electric utility to Manitoba Hydro as approved by The Purchase of Winnipeg Hydro Act.

Where clause (1)(i) not applicable

82(4)       Clause (1)(i) does not apply in respect of a contract where the value of the consideration thereunder is less than $100.

Orders affecting dividends

82(5)       Where the board considers it expedient in the public interest, it may by order prohibit or restrict the payment of dividends by the owner of a public utility or any other distribution of the assets of the public utility.

Liability of directors

82(6)       If a company declares or pays a dividend, or effects a distribution of assets in contravention of clause (1)(k), (l) or (m), the directors thereof are personally liable to repay to the company the amount or value of any money or assets so disbursed or distributed, but in the case of a contravention of clause (1)(m), if the company could have disbursed or distributed part of the money or assets without any contravention of that clause, the directors shall be liable to repay only the amount of the excess.

Relief for directors

82(7)       A director

(a) who is present at the time when a dividend is declared or a distribution of assets authorized, but who dissents therefrom and within seven days thereafter delivers to an officer of the company his written protest against the declaration or authorization; or

(b) who is absent at the time when a dividend is declared or a distribution of assets is authorized and who, within seven days after he becomes aware of the declaration or authorization, delivers to an officer of the company his written protest against the declaration or authorization;

and who, in either case, within seven days after delivery of the protest, sends a copy thereof by registered mail to the secretary of the board, thereby, and not otherwise, is relieved from liability under subsection (6) in respect of that dividend or distribution of assets.

Order authorizing dividends

82(8)       Notwithstanding clause (1)(k), (l) or (m), the board may, upon application and after a hearing, by order authorize an owner of a public utility to declare and pay dividends or to effect any other distribution of the assets of the utility if the board is satisfied that the terms of the order adequately protect the public interest.

Effect of clause (1)(g)

82(9)       Clause (1)(g) does not prevent the issue of securities, subject to the approval of the board, in respect of any lawfully merged or consolidated public utilities not in contravention of clause (1)(g).

Certain dispositions void

82(10)      Every sale, lease, mortgage, disposition, encumbrance, merger, or consolidation, made in violation of any provision of clause (1)(h) is void; but nothing herein prevents the sale, lease, or other disposition, of any of the property of an owner of a public utility in the ordinary course of its business.

Granting of authority to issue securities

82(11)      The board shall grant the authority to which reference is made in clause (1)(f) upon being satisfied that the proposed issue is to be made in accordance with law and that the purpose of the issue is approved by the board.

Authority of board re contracts

82(12)      Where a proposed contract is filed with the board as provided in clause (1)(i), the board may

(a) if the contract is not yet in effect,

(i) by its order, disapprove the contract and order the public utility not to execute it or put it into effect; or

(ii) order that the contract be amended in a manner specified in the order before it is executed or put into effect; or

(b) if the contract is in effect,

(i) order that the contract be terminated forthwith on such terms and conditions as may be stated in the order; or

(ii) order that the contract be amended in a manner specified in the order, before any further action is taken, things are done, or payments are made thereunder.

Compliance with orders of board

82(13)      Where the board makes an order as provided in subsection (12), the contract to which the order relates

(a) shall not be executed or put into effect; or

(b) shall be terminated or amended;

as prescribed in the order; and the public utility and all other persons who are parties to the contract or proposed contract shall comply with the order.

Meaning of "interest in a corporation"

82(14)      For the purposes of clause (1)(i), a person shall be conclusively deemed not to have an interest in a corporation unless

(a) he or any company of which he is a director holds at least 5% of the capital stock thereof; or

(b) he is a director thereof.

Preferential rates from municipal utility

82(15)      Notwithstanding subsection (1), a municipality that is the owner of a public utility may, if authorized by by-law, enter into an agreement to charge an individual consumer a preferential rate; and, where the rate specified in the agreement is, in the opinion of the board, one to which clause (1)(a) would apply, the authorizing by-law shall provide that the municipality shall annually pay, from proceeds of a special levy imposed annually for that purpose to the account of the utility concerned the difference between the amount received pursuant to the agreement and the amount that would have been received had the rate been established in compliance with this Act but without reference to this subsection; and the rate used in establishing the difference shall be approved by the board.

Board authorization

82(16)      A by-law may not be passed under subsection (15) unless it is authorized by the board.

Terms of authorization

82(17)      In authorizing a by-law under subsection (16), the board may prescribe such terms and conditions as it considers advisable in the circumstances, and all such terms and conditions shall be complied with by the municipality.

Authority for special levy

82(18)      The enactment of a by-law under subsection (15) authorized as provided in subsection (16) is authority for imposing the special levy mentioned in subsection (15).

Required provision of by-law

82(19)      Any agreement entered into pursuant to subsection (15) shall set out, as one of the recitals thereto, the provisions of subsections (15), (16), (17) and (18).

S.M. 1996, c. 58, s. 469; S.M. 2002, c. 45, s. 10.

Statutory condition

83(1)       In every public utility the operation or objects of which are the construction, working, or maintaining of telegraph, telephone, or transmission lines, or the delivery or sale of water, gas, heat, light, or power, the owner thereof shall fulfil the following conditions over and above those that may be prescribed by the board:

(a) the owner shall not unnecessarily interfere with the public right to travel, and shall not in the construction of any such lines obstruct the entrance to any door or gateway existing at the date of the construction, or free access to any then existing building;

(b) the owner shall not erect more than one line of poles along any highway and shall, so far as possible, make each pole straight and perpendicular;

(c) the owner shall not unnecessarily cut down or mutilate any shade, fruit, or ornamental tree;

(d) the opening up of any street, square, or other public place, for the erection of poles, or for the carrying of pipes or wires underground, shall be subject to the supervision of such person as the municipality concerned may appoint, and the street, square, or other public place shall, without unnecessary delay, be restored as far as possible to its former condition; and

(e) where, in the exercise of the public right of travel, it is necessary that poles or wires be temporarily removed by cutting or otherwise, the owner shall, upon reasonable notice in writing from any person desiring it, at the party's expense, remove the poles and wires, but the owner may, subject to an appeal to the board, refuse to remove the poles and wires, if in its opinion the moving will jeopardize the service of the utility to the public.

Owner responsible for damage in operations

83(2)       An owner is responsible for all unnecessary damage that he wilfully or negligently causes in carrying out, maintaining, or operating any of his works.

Cutting wires for fighting fires

83(3)       An owner, unless so ordered by the board, is not entitled to compensation on account of his poles or wires being cut by order of the officer in charge of a fire brigade at any fire, if, in the opinion of the officer, it is advisable that the poles or wires be cut.

Regulations respecting construction standards

83(4)       The board may make and enforce regulations, not inconsistent with this Act, prescribing standards for the construction and erection of telephone, telegraph, and power transmission lines; and every such regulation made under and in accordance with the authority granted by this section, has the force of law; and any owner of a public utility who has constructed or erected such lines in accordance with such regulations, is relieved from all liability for damage arising out of the construction or erection of the lines.

Badge for meter reader

83(5)       Every person engaged in erecting or repairing any line or instrument of an owner, or engaged in an inspection or meter reading, shall have conspicuously attached to his dress a badge on which are legibly inscribed the name of the owner and a number by which the wearer can be readily identified.

Authority to sell water, light, etc., required

83(6)       Nothing in this section authorizes an owner to sell or distribute water, gas, light, heat, power, or electricity in any municipality without having previously obtained the consent of the municipality or other authority thereto, unless the owner is specially empowered so to do by any special or general Act of the Legislature or any letters patent or document issued under an Act of the Legislature.

Changes in rates to be approved by board

84(1)       No change in any existing individual rates, joint rates, tolls, charges, or schedules thereof or any commutation, mileage, or other special rates shall be made by any owner of a public utility, nor shall any new schedule of any such rates, tolls, or charges be established until the changed rates or new rates are approved by the board, when they shall come into force on a date to be fixed by the board; and the board may, either upon written complaint or upon its own initiative, hear and determine whether the proposed increases, changes, or alterations are just and reasonable.

Onus

84(2)       The burden of proof to show that any such increases, changes, or alterations are just and reasonable is upon the owner seeking to make the increases, changes, or alterations.

Municipal utility accounts

85          Every municipality owning, operating or controlling any form of public utility service shall keep the accounts thereof in the manner prescribed by the board for the accounting of similar public utilities, and shall file with the board such statements thereof as may be directed by the board.

Railway stations not to be abandoned without leave

86          No railway company within the legislative authority of the Legislature shall, without first obtaining the approval of the board, abandon any railway station, or stop the sale of passenger tickets at any station in the province at which passenger tickets are regularly sold, or cease to maintain an agent to receive and discharge freight at any station in the province at which an agent is maintained.

Level crossings

87          No highway shall be constructed across the tracks of any railway company within the legislative authority of the Legislature at grade level, nor shall the tracks of any such railway company, or of any street railway or traction company, be laid across any highway, so as to make a new crossing at grade level, nor shall the tracks of any such railway or street railway or traction company be laid across the tracks of any other railway or street railway or traction company, without first obtaining therefor permission from the board; but this section does not apply to the replacement of lawfully existing tracks.

Safety devices at level crossings

88          Where it appears to the board that a public highway and a railway within the legislative authority of the Legislature cross one another, or that a public highway and a street railway cross one another, or that any such railway and a street railway cross one another at the same level, and that conditions at the level crossing make it necessary that some provision for the protection of the travelling public using the crossing should be adopted, the board may order and direct the railway company or street railway company, or the authority responsible for the building or maintenance of the highway, or either or both of them, to install such protective devices or gates, or adopt such other reasonable provision for the protection of the travelling public at the crossing, as in the opinion of the board is necessary, with such division of the expense thereof as the board orders.

Franchises to be approved by board

89(1)       No privilege or franchise granted to any owner of a public utility by any municipality in the province, except such a privilege or franchise expressly granted under an Act of the Legislature, is valid until approved by the board.

When approval given

89(2)       The approval of a privilege or franchise under subsection (1) shall be given where, after hearing the parties interested, the board determines that the privilege or franchise is necessary and proper for the public convenience and properly conserves the interests of the public.

Conditions to approval

89(3)       The board in approving a privilege or franchise under subsection (1) may impose such conditions as to construction, equipment, maintenance, service, or operation as the public convenience and interests may reasonably require.

Requirements respecting companies not subject to Legislature

90(1)       No municipality shall enter into any agreement with, or grant any franchise to, any company the business and operations of which are not subject to the legislative authority of the Legislature, for the operation, management, or control of any system, works, plant, or equipment for the production, transmission, delivery, or furnishing of water, gas, heat, light, or power, either directly or indirectly, to the municipality, unless there is contained in the agreement or grant a provision whereby the company agrees to submit the business and operations thereof to the control and supervision of the board, in all respects as any such company would have been subject to the control and supervision were it the owner of a public utility as defined in this Act.

Board to approve provision

90(2)       A municipality before it enters an agreement or grants a franchise, to which subsection (1) applies, shall obtain the approval of the board to agreement or grant.

Agreements contrary to section to be void

90(3)       Every agreement entered into between any municipality and a company and every franchise granted by any municipality to a company, in contravention of this section is void.

Filing copy of contract with board

91          The municipality shall with the board file a copy of a contract respecting a proposed grant or agreement referred to in sections 89 and 90 prior to the second reading of its by-law authorizing the proposed grant or agreement.

S.M. 1997, c. 11, s. 6.

Union of utilities to be approved by board

92(1)       Where, by any general or special Act, a public utility or its owner is authorized to unite with any other public utility or its owner, the union is subject to the consent of the board, and has no effect until the order of the board authorizing the union is published in one issue of The Manitoba Gazette.

No application to union of Winnipeg Hydro with Manitoba Hydro

92(2)       Subsection (1) does not apply to the union of electric utilities that may follow or result from the sale of the city's electric utility to Manitoba Hydro as approved by The Purchase of Winnipeg Hydro Act.

S.M. 2002, c. 45, s. 10.

Orders as to construction of works

93          Where, in the exercise of the powers conferred upon it by this Act or by any special Act, the board directs any structure, appliances, equipment, or works to be provided, constructed, reconstructed, altered, repaired, installed, used, or maintained, it may order by what company, municipality, or persons interested, and when or within what time, and upon what terms and conditions as to the payment of compensation or otherwise, and under what supervision, the work shall be carried out.

Rules by utility for safety of passengers

94(1)       The owner of every public utility, being a company or corporation operating any system for the conveyance of travellers over a railway, street railway, or tramway, or on the buses of a motor bus line, may, in the interests of health, safety, and good order, make rules for the regulation of passenger traffic and for prohibiting misconduct by passengers and others in its cars, stations, and shelters, including drinking intoxicants, and smoking in cars, stations, or shelters, or parts thereof not assigned for that purpose, but all rules are subject to the approval of the board.

Jurisdiction of traffic board preserved

94(2)       Nothing in subsection (1) limits or affects the jurisdiction of The Highway Traffic Board established under The Highways Protection Act.

Penalty

94(3)       Any person who violates any rule made under subsection (1) in any car, station, or shelter, in which a copy thereof is at the time of the offence conspicuously posted, is guilty of an offence and is liable, on summary conviction, to a fine not exceeding $10. and costs, and in default of payment, to imprisonment for a period not exceeding 10 days.

Evidence of enactment

94(4)       The certificate of approval of rules made under subsection (1) by the board is evidence of the due enactment thereof by the public utility.

Appointment of supervisors

95          For the purpose of supervision or inspection, continuous or otherwise, of the system, works, plant, equipment, or service of any public utility, and with a view to prescribing and carrying out measures for the safety of the public and of the users of the service, and for adequacy of service, the board may appoint supervisors or inspectors over one or more public utilities; and may order that the salaries and expenses of the supervisors or inspectors, which shall be fixed by the board, shall be borne by the municipality within which the operations of the utility are carried on or its service is furnished, or by the owner of the public utility, or by the respective owners of one or more public utilities so supervised or inspected, in the proportion, and under the condition, prescribed by the order.

ORDERS UNDER THIS PART

Operation of orders to continue rates

96(1)       Every order of the board made under this Part to continue services or rates in effect at the time the order is made is immediately operative.

Effective date of order against utilities

96(2)       Every other order made under this Part is effective upon the date specified therein, which shall be at least 20 days after the date of the order, unless the board, for good reason, specially provides for an earlier date.

Enforcement of orders to utilities

97(1)       The board may take such steps, and employ such persons, as are necessary for the enforcement of any order made by it under this Part; and, for the purposes thereof, may forcibly or otherwise enter upon, seize, and take possession of, the whole or part of the movable and immovable property of any public utility, together with the books and offices thereof; and may, until the order has been enforced or until the board is satisfied that it will be obeyed, assume and take over the management of the business thereof for and in the interest of the shareholders and the public, and all or any of the powers, duties, rights, and functions, of the directors and officers of the public utility in all respects, including the employment and dismissal of officers and servants thereof, for such time as the board continues to direct the management.

Possession by board

97(2)       Upon the board assuming or taking over the management of a public utility, under subsection (1), every officer and employee of the public utility shall obey the orders of the board or of such persons as it places in authority in the management of any or all departments of the undertaking.

Powers over moneys

97(3)       The board may upon assuming or taking over the management of a public utility under subsection (1), determine, receive, and pay out, all moneys due to or owing by the owner of the public utility, and give cheques, acquittances, and receipts for moneys, to the same extent and as fully as the proper officers thereof could do if no such possession had been taken.

Expenses of board

97(4)       The expenses and costs of and incidental to proceedings to be taken by the board under this section are in the discretion of the board; and the board may direct by whom and to what extent they shall be paid.

Report of non-compliance to Minister of Justice

98(1)       Where it is proved that the owner of a public utility has not complied with an order given by the board, if of opinion that there are no effectual means of compelling him to obey the order, the board, as an alternative, shall transmit to the Minister of Justice a certificate, signed by the chairman of the board and the secretary, setting forth the nature of the order and the default of the owner in complying therewith.

Action to dissolve a company in default

98(2)       Default in complying with an order of the board established under subsection (1) is ground, after public notice in The Manitoba Gazette of the receipt of the certificate by the Minister of Justice, for an action to dissolve the owner, if a corporation, or to suspend or revoke the charter incorporating it.

Q. B. rules to apply

98(3)       The proceedings upon the action to dissolve an owner or to suspend or revoke a charter under subsection (2) shall be governed as nearly as may be by rules of the Court of Queen's Bench.

S.M. 1993, c. 48, s. 93.

Orders to be notified by utility to its employees

99          Every owner of a public utility shall, as soon as possible after having received or having been served with any order or other document of the board, give notice of the order or other document to each of his officers and servants performing duties that are or may be affected thereby, by delivering a copy to him or by posting up a copy in some place where his work or duties or some of them are to be performed.

OFFENCES AND PENALTIES

Default in obeying order

100         In default of compliance with any order of the board under this Act, when the order becomes effective, the person so in default is subject to a penalty of $100. per day for every day during which the default continues; and the amount of the penalty shall be fixed and determined by order of the board.

Doing or aiding in doing things forbidden by Act

101         Any person who knowingly and wilfully performs, commits, or does, or participates in performing, committing, or doing, or who knowingly or wilfully causes, participates, or joins with others in causing, any owner of a public utility or any corporation or company to perform, commit, or do or who advises, solicits, persuades, or knowingly and wilfully instructs, directs, or orders any officer, agent, or employee of any owner, corporation, or company, to perform, commit, or do any act or thing forbidden or prohibited by this Act, is guilty of an offence.

Neglect of duty imposed by Act

102         Any person who knowingly and wilfully neglects, fails, or omits, to do or perform, or who knowingly and wilfully causes or joins or participates with others in causing, any owner, corporation, or company to neglect, fail, or omit, to do or perform, or who advises, solicits, or persuades, or knowingly or wilfully instructs, directs, or orders any officer, agent, or employee of any owner, corporation, or company, to neglect, fail, or omit to do, any act or thing required to be done by this Act, is guilty of an offence.

Disobedience to Act

103         Any owner of a public utility and any corporation or company that performs, commits, or does, any act or thing herein prohibited or forbidden, or that neglects, fails, or omits, to do or perform any act or thing herein required to be done or performed by it, is guilty of an offence.

Penalties

104         Every person guilty of an offence under this Act is, in addition to all other penalties, liable on summary conviction, to a fine of not less than $50. or more than $500., besides costs of prosecution, and in default of payment, if an individual, to imprisonment for a term not exceeding six months.

Discontinuance of supply or service for default

104.1(1)    Where, before or after the coming into force of this section, a person is in default in the payment of any rate, toll, fare or charge due to the owner of a public utility for any product supplied or service rendered, the owner or its authorized agent may, subject to this section,

(a) discontinue to supply the product or to render the service, as the case may be;

(b) remove from the affected premises any meters, pipes, facilities or equipment belonging to the owner;

(c) by action in a court of competent jurisdiction, recover the rate, toll, fare or charge, together with any expense of carrying out the discontinuance or removal and the costs of the action;

notwithstanding any obligation the owner may have under this or another Act of the Legislature or any law, or pursuant to any franchise granted under this Act or The Municipal Act, to supply the product or to render the service for an indefinite period or for a definite period that has not expired.

Residential premises - prohibited disconnection period

104.1(2)    No owner and no agent of an owner shall carry out a discontinuance or removal under subsection (1) during the period commencing on October 1 of any year and ending on May 14 of the following year, where the discontinuance or removal will affect the supply of heat to occupied residential premises.

"Residential premises" defined

104.1(3)    In subsection (2), "residential premises" means premises used as residential premises, whether or not designed or constructed for the purpose and whether or not adjoining, connected to, contained within or forming part of non-residential premises.

Residential premises - exception

104.1(4)    Subsection (2) does not apply where the affected premises are leased to a tenant and the landlord is responsible for payment of the cost of heating the premises.

Conditions and procedures for discontinuance

104.1(5)    No owner and no agent of an owner shall carry out a discontinuance or removal under subsection (1) except after complying with such conditions precedent and following such procedures as may be approved by the board under subsection (6).

Board approval of conditions and procedures

104.1(6)    An owner of a public utility may prepare and submit to the board for approval a list of such conditions precedent and procedures as the owner deems necessary for the purposes of subsection (5), and the board may in its absolute discretion approve or refuse to approve any list so submitted.

List of conditions and procedures

104.1(7)    Without restricting the generality of subsection (6), a list of conditions precedent and procedures prepared under that subsection shall include provisions specifying

(a) the number of notices that shall be given to affected persons preceding a discontinuance or removal under subsection (1);

(b) the manner of giving each notice;

(c) the required length of each period of notice;

(d) the terms and conditions, and required circumstances, for the resumption of any supply or service discontinued under subsection (1);

(e) the content and frequency of reports that an owner or the agent of an owner shall provide to the board respecting any discontinuance or removal carried out or proposed to be carried out by the owner or agent under subsection (1).

Order to resume supply or service

104.1(8)    Notwithstanding any other provision of this section or anything done thereunder, the board may at any time order the cessation of any discontinuance or removal that may be in progress under subsection (1), or the resumption of any supply or service that has already been discontinued under subsection (1), and in determining whether or not to make such an order the board shall consider all reports respecting the discontinuance or removal provided pursuant to clause (7)(e) and all factors that it deems relevant including

(a) the likelihood of danger to life or health;

(b) the likelihood of serious damage to property;

(c) the amount due and owing to the owner;

(d) the length of time that payment of the amount has been in default;

(e) the health and family circumstances of the occupants of the affected premises;

(f) the financial circumstances of the person in default;

(g) the nature, condition and usage of the affected premises;

(h) whether or not the owner has complied with the conditions precedent and followed the procedures required to be complied with and followed under this section;

and the owner shall comply with the order.

No liability for loss or damage

104.1(9)    Neither the owner of a public utility nor its agent is liable for any injury, loss or damage resulting from a discontinuance or removal carried out by the owner or agent under subsection (1) in compliance with this section and without negligence.

Other Acts of the Legislature

104.1(10)   This section is subject to subsection 2(5) of this Act and any other provision of this or another Act of the Legislature setting out or providing for conditions precedent or procedures to be complied with or followed by the owner of a public utility in discontinuing, for default in the payment of any rate, toll, fare or charge due to the owner, or in resuming after such a discontinuance, to supply a product or to render a service normally required to be provided by the public utility.

Statutes and Regulations Act does not apply

104.1(11)   The Statutes and Regulations Act does not apply to a list of conditions precedent and procedures approved by the board under subsection (6).

S.M. 1991-92, c. 6, s. 2; S.M. 2013, c. 39, Sch. A, s. 82.

PART III

MISCELLANEOUS

Rights and penalties under other Acts preserved

105         This Act does not release or waive any right of action by the board or by any person for any right, penalty, or forfeiture, that may have arisen, or that may arise, under any of the laws of the province; and any penalty or forfeiture enforceable under this Act does not affect or bar any action at law or prosecution against any owner of a public utility or its officers, directors, agents, or employees.

Conflict of laws

106         Except as otherwise provided in this Act and in sections 210 and 215 of The City of Winnipeg Charter and sections 32, 49 and 194 of The Northern Affairs Act, the several provisions of this Act have effect notwithstanding any provision to the contrary contained in any charter or general or special Act of the Legislature.

S.M. 1996, c. 48, s. 9; S.M. 2002, c. 39, s. 532; S.M. 2006, c. 34, s. 265.

Power of board to perform assigned duties

107         The board may perform duties assigned to it

(a) by Act or resolution of the Legislature;

(b) by order of the Lieutenant Governor in Council; or

(c) as an appellate or arbitrating body under an agreement between a municipality and the owner of a public utility;

and Part I, in so far as it is applicable, applies to the carrying out of duties so assigned.

Power to validate certain acts of municipalities

108         Where by inadvertence, a clerical error, omission, or other cause, an irregularity has occurred in the proceedings leading up to, or in the passing, giving, doing, or making, or in the form or execution of a by-law, resolution, notice, advertisement, or return, of a municipality, the subject matter whereof is within the jurisdiction of the municipality and of the board, thereby rendering it of doubtful validity upon application, the board may inquire into the matter and, if satisfied that it would be valid except for the irregularity and that no person is or will likely be injuriously affected thereby, make an order declaring it valid for all purposes and thereupon all matters and things to which reference is made therein are validated for all purposes.

Annual report of the board

109(1)      Within two months after the end of each fiscal year, the board must make a report to the minister on its activities during that fiscal year.  The report must include

(a) summaries of the findings contained in all orders made pursuant to applications to the board;

(b) the number and nature of orders made pursuant to inquiries which it has held of its own motion;

(c) the number of licences, permits, and certificates, issued and the fees collected by the board;

(d) such other matters as the Lieutenant Governor in Council directs.

Tabling of reports in the Assembly

109(2)      The minister must table a copy of the report in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

Definition:  fiscal year

109(3)      In this section, "fiscal year" has the same meaning as in section 1 of The Financial Administration Act.

Transition:  2004 annual report

109(4)      The report for the fiscal year ending March 31, 2005 must include the matters described in clauses 109(1)(a) to (d) for the period January 1, 2004 to March 31, 2005.

S.M. 2005, c. 42, s. 33.

Ultra vires

110         Should a court declare any section or provision of this Act unconstitutional or ultra vires, that decision affects only the section or provision so declared to be unconstitutional or ultra vires, and does not affect any other section or part of this Act.

Act within authority

111         This Act has effect only in so far as the authority of the Legislature extends.

PART IV

RATES AND OTHER MATTERS RELATED TO GAS

Definitions

112         In this Part,

"broker" means a person or company that brings together buyers and sellers of gas whether it takes title to gas or not; (« intermédiaire »)

"commodity cost" in relation to gas, means the purchase price of gas, plus taxes and other charges imposed by governments other than the government of Manitoba, plus the cost of transportation of the gas up to the interconnection between the interprovincial transmitter and the local distribution system within the Province; (« coût d'achat »)

"delivery" of gas means the physical delivery of gas to a consumer but does not include the sale of gas; (« livraison »)

"direct purchase of gas" means contracting for the purchase of gas from a broker who is not a public utility; (« achat direct de gaz »)

"gas" means natural gas, methane, or any mixture of any of them and includes propane in liquid or gaseous form; (« gaz »)

"public utility" means any system, works, plant, pipeline, equipment or service for the production, transmission, distribution, storage, delivery or furnishing of gas, either directly or indirectly, to or for the public; (« service public »)

"rate base" means the amount that a public utility has invested for its purposes as determined by the Board pursuant to the provisions of this Act; (« taux de base »)

"rate of return on shareholder equity" means the net income of a public utility expressed as a percentage of the amount of shareholder equity invested in the business of the public utility; (« taux de rendement de l'avoir des actionnaires »)

"sale of gas" means a transaction where an owner of gas conveys title to another person or company for consideration; (« vente de gaz »)

"storage of gas" means the retention of gas in a natural or constructed facility; (« stockage du gaz »)

"transmitter" means a person who carries gas by transmission lines; (« responsable de l'acheminement »)

S.M. 1987-88, c. 65, s. 32; S.M. 1997, c. 8, s. 3; S.M. 1997, c. 11, s. 7.

Application of Part

113(1)      This Part only applies to the sale, delivery, direct purchase, distribution, storage and transmission of gas within the Province.

Other Parts apply

113(2)      The provisions of Parts I, II and III of this Act apply in this Part unless a provision of this Part is in conflict with a provision contained in those Parts in which case the provision of this Part applies with respect to the sale, delivery, direct purchase, distribution, storage and transmission of gas within the province.

S.M. 1987-88, c. 65, s. 32.

Conditions of sale, delivery, etc.

114         No person shall sell, deliver, purchase directly, distribute, store or transmit gas within the Province except in accordance with an order issued to such person by the Board and in granting any order the Board shall not be bound to recognize or give effect to the terms of any existing contract.

S.M. 1987-88, c. 65, s. 32.

Grant of franchise

115(1)      Notwithstanding any other Act, the authority to grant or refuse a franchise to sell gas or to directly purchase gas or revoke an existing franchise to sell gas or to directly purchase gas within the Province is within the powers of the Board and, subject to The Municipal Act and The Gas Pipeline Act, the authority to grant or refuse or revoke a franchise to distribute, transmit, store or deliver gas within the Province is within the power of a municipality or local government district in which the gas is distributed, transmitted, stored or delivered.

Existing rights

115(2)      Notwithstanding subsection(1), all rights to sell, deliver, distribute, store and transmit gas previously granted by statute, by-law, contract or otherwise, existing as of the date of the coming into force of this section shall remain in force until amended or revoked by order of the Board.

Board may grant franchise

115(3)      The Board may issue an order granting a franchise to sell gas or to purchase gas directly in any area within the Province to persons whom the Board in its discretion deems appropriate subject to such terms and conditions as the Board deems appropriate.

115(4)      [Repealed] S.M. 1997, c. 8, s. 4.

S.M. 1987-88, c. 65, s. 32; S.M. 1997, c. 8, s. 4.

Board may order delivery, etc. of gas

116(1)      Where the Board makes an order for the sale of gas or the direct purchase of gas for the benefit of a person who is not an owner of a public utility, the Board may order the owner of a public utility within the Province or its agents or employees, to deliver, distribute, store and transmit gas within the Province on such terms and conditions and at rates, tolls and other charges as the Board may determine.

116(2)      [Repealed] S.M. 1997, c. 8, s. 5.

Duty of public utility

116(3)      Where the Board makes an order under subsection (1), the owner of the public utility shall, if required by the Board, collect the commodity cost of gas or such portion thereof as may be ordered by the Board from the purchaser and remit the same, net of any collection costs determined in a manner approved by the Board, to the broker.

S.M. 1987-88, c. 65, s. 32; S.M. 1997, c. 8, s. 5; S.M. 1997, c. 11, s. 8.

117         [Repealed]

S.M. 1987-88, c. 65, s. 32; S.M. 1997, c. 8, s. 6.

Effect of an order granting a franchise

118         Upon the issuance of an order of the Board granting a franchise to sell gas within the Province, all franchises or other rights to sell gas or to directly purchase gas as provided by any Act of the legislature or regulations thereunder, by any by-laws of a municipality or local government district, contracts or other arrangements then existing with respect to the franchise to sell gas shall be deemed to be revoked or amended so as to be consistent with any order of the Board, with effect from the date on which the order is stated to be effective.

S.M. 1987-88, c. 65, s. 32.

No liability of Crown etc.

119         No person, including without limiting the generality of the foregoing, Her Majesty in right of the Province, the Board or any member thereof shall be liable for any payments, losses, liabilities or damages of any kind that may be suffered by any person as a consequence of the grant, amendment, suspension or revocation of any franchise or right to sell gas within the Province.

S.M. 1987-88, c. 65, s. 32; S.M. 1997, c. 8, s. 7.

Prohibition on sale, delivery, etc.

120(1)      No person shall sell, deliver, directly purchase, distribute, store or transmit gas within the Province without an order of the Board.

Terms of orders of Board

120(2)      All orders of the Board for the sale, delivery, direct purchase, distribution, storage or transmission of gas within the Province shall take effect from the day designated by the Board, and shall remain in force until they have been amended or revoked by subsequent order of the Board.

Refunds

120(3)      Where the Board, on the complaint of any person or on its own motion, determines that an owner of a public utility, direct purchaser of gas or any other seller of gas within the Province has sold gas to or directly purchased gas for residents of the Province at a rate, toll or other charge including a rate, toll or charge set by the Board, the Board may, by order, direct a refund of all or any portion of any payments paid in excess of the maximum amount of the commodity cost and may prescribe the method of repayment which may include an order to offset any refund against the collection of future rates, tolls or other charges.

"Owner" defined

120(4)      For the purposes of subsection (3), owner includes

(a) every municipal corporation and every person, firm, company, association or syndicate of persons incorporated or unincorporated the business whereof is or the operations whereof are subject to the authority of the Legislature; and

(b) any lessee, any trustee, any liquidator or receiver appointed by any court that owns, operates, manages or controls any public utility.

S.M. 1987-88, c. 65, s. 32; S.M. 1997, c. 8, s. 8; S.M. 1997, c. 11, s. 9.

Terms and conditions of orders

121         The Board, in making any order, may impose such terms and conditions as it considers proper and an order may be general or particular in its application.

S.M. 1987-88, c. 65, s. 32.

Conflict with board order

122         In making any order, the Board may, directly or indirectly, amend or discharge any contract for the sale, delivery, direct purchase, distribution, storage or transmission of gas within the Province.

S.M. 1987-88, c. 65, s. 32.

Burden of proof

123         At any hearing before the Board, the burden of proof is on the applicant.

S.M. 1987-88, c. 65, s. 32.

Orders on application

124         Upon an application for an order fixing rates, tolls or other charges, if it is not satisfied that the rates, tolls or other charges applied for are in compliance with the provisions of this Act, the Board may, after a hearing, fix such other rates, tolls or other charges as it finds are in compliance with this Act.

S.M. 1987-88, c. 65, s. 32.

Interim orders

125         At the request of an applicant or intervenor or on its own motion, the Board may, without a hearing, make one or more orders under section 115, 116, 124 and 127, effective for a period of not more than one year, pending a final disposition of any application to or any matter before the Board.

S.M. 1987-88, c. 65, s. 32; S.M. 1997, c. 8, s. 9.

Criteria for board orders

126(1)      In making any order under this Part, the Board may consider the following factors:

(a) whether the rates, tolls or other charges are excessive, unjust, unreasonable or unjustly discriminatory;

(b) security of gas supply;

(c) the financial stability of a broker, deliverer, distributor, storer or transmitter of gas;

(d) the impact of any order to sell, deliver, distribute, store, transmit gas on other purchasers of gas within the Province; and

(e) any other criteria that the Lieutenant Governor in Council may, by order, direct the Board to consider or that the Board in its discretion may deem appropriate.

126(2)      [Repealed] S.M. 1987-88, c. 65, s. 32.

126(3) and (4) [Repealed] S.M. 1997, c. 8, s. 10.

S.M. 1987-88, c. 65, s. 32; S.M. 1997, c. 8, s. 10.

Determination of rates, tolls or charges

127(1)      The Board shall determine, from time to time, rates, tolls or other charges to be charged by a public utility or any person for selling, delivering, distributing, storing or transmitting gas within the Province, and in connection therewith shall determine, inter alia, the rate base and the rate of return on shareholder equity.

Rate of return on shareholder equity

127(2)      In determining the rate of return on shareholder equity under subsection (1), the Board shall fix a rate of return that it determines to be in compliance with this Act.

Effective date

127(3)      An order of the Board determining rates, tolls and other charges may be made with retroactive effect from a day specified in the order.

S.M. 1987-88, c. 65, s. 32.

Enforcement of orders

128(1)      A certified copy of any order made by the Board, exclusive of the reasons therefor, may be filed in the office of the Registrar of the Court of Queen's Bench, whereupon the order shall be entered in the same way as a judgment or order of that court and is enforceable as such.

Board may rescind or vary order at any time

128(2)      Any order filed in the Court of Queen's Bench under subsection (1) may be rescinded or varied by the Board at any time.

S.M. 1987-88, c. 65, s. 32.

Power to review

129         The Board may at any time rehear or review any application before deciding it and may, by order, rescind or vary any order made by it.

S.M. 1987-88, c. 65, s. 32.

Regulations

130         The Lieutenant Governor in Council may make regulations respecting any matter the Lieutenant Governor in Council deems necessary or advisable to effectively carry out the intention and purposes of this Part.

S.M. 1987-88, c. 65, s. 32.

PART V

ELECTRICITY RELIABILITY

DEFINITIONS

Definitions

131         In this Part, "compliance body", "reliability standard" and "standards body" have the same meaning as in The Manitoba Hydro Act.

S.M. 2009, c. 17, s. 8.

REVIEW OF FEES FOR STANDARDS BODY OR COMPLIANCE BODY

Advice to minister re fees

132(1)      The minister may at any time request advice and recommendations from the board respecting the fees payable to a standards body or compliance body in relation to the making or enforcement of reliability standards by those bodies, and associated activities of those bodies.

Information

132(2)      For the purpose of carrying out its responsibilities under this section, the board may consider the business plan, budget and funding mechanism of a standards body or compliance body, and is entitled to be provided with any information it requires.

S.M. 2009, c. 17, s. 8.

REVIEW OF RELIABILITY STANDARDS

Application to review reliability standard

133(1)      Any person required to comply with a reliability standard or an amendment to a reliability standard that

(a) has been made by a standards body and adopted by regulation under subsection 15.0.1(1) of The Manitoba Hydro Act; or

(b) is proposed to be made by a standards body;

may apply to the board for a review of the reliability standard or amendment.

Board powers on review

133(2)      Upon completing the review, the board may, by order,

(a) confirm the reliability standard or amendment; or

(b) reject the reliability standard or amendment, in whole or in part, and remand it to the standards body for further consideration.

Reliability standard of no effect if remanded

133(3)      A reliability standard or amendment, or part of a standard or amendment, that is remanded under subsection (2) is of no effect in Manitoba, unless the board orders otherwise.

S.M. 2009, c. 17, s. 8.

FINDING THAT RELIABILITY STANDARD VIOLATED

Request for determination

134(1)      When a compliance body considers that there has been an apparent violation of a reliability standard in Manitoba, it may request the board to make a determination about the violation and may recommend an appropriate penalty to the board.

Board order

134(2)      After considering a request under subsection (1), the board may, by order, determine that a person has violated a reliability standard in Manitoba and, where appropriate, impose a penalty for the violation, including a non-monetary sanction.

Factors

134(3)      In deciding on the imposition of a penalty, the board may consider any factor it considers appropriate, including, but not limited to, the desirability of a consistent approach to enforcing reliability standards throughout North America.

Only board may find non-compliance or order penalty

134(4)      No finding by a compliance body that a person has violated a reliability standard in Manitoba, and no imposition by a compliance body of a penalty for such a violation, is effective in Manitoba unless the board has made an order under subsection (2) determining that the violation has taken place or imposing the penalty.

Regulations re monetary penalty

134(5)      The Lieutenant Governor in Council may make regulations specifying to whom monetary penalties imposed under this section are to be paid.

S.M. 2009, c. 17, s. 8.

GENERAL

Coordinating actions

135         The board may coordinate its actions under this Part with governmental and regulatory authorities outside Manitoba.

S.M. 2009, c. 17, s. 8.