ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-10000131-00MO
DATE: 20130704
BETWEEN:
Peter Waskowec
Applicant
– and –
Hydro One Networks Inc.
Respondent
Self-represented
Robert Ryan, for the Respondent
HEARD: July 2, 2013
BACKHOUSE J.
reasons for decision released july 4, 2013
[1] The applicant seeks a writ of mandamus requiring Hydro One, its management and staff to deliver his power usage bills to him by courier and to refrain from intimidating him, uttering threats and any other criminal act. This application was scheduled only to be spoken to on July 2, 2013. Both parties wished to have the application heard and accordingly, on consent, I heard the application on its merits.
[2] The applicant relies upon the following provisions:
Public servant refusing to deliver property
s.337 Every one who, being or having been employed in the service of Her Majesty in right of Canada or a province, or in the service of a municipality, and entrusted by virtue of that employment with the receipt, custody, management or control of anything, refuses or fails to deliver it to a person who is authorized to demand it and does demand it is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Energy Consumer Protection Act:
5.(1) The rights of a consumer under this Part are in addition to any other rights of the consumer under any other Act or by operation of law and nothing in this Part shall be construed to limit any such rights of the consumer.
Conflict
(2) In the event of a conflict between a provision in this Part and a provision in any other Act, the provision that provides the greater protection to the consumer prevails.
Interpretation: ambiguities to benefit consumers
- Any ambiguity that allows for more than one reasonable interpretation of a contract provided by a supplier to a consumer or of any information that must be disclosed under this Part shall be interpreted to the benefit of the consumer.
Use of electronic document or information not mandatory
(7) Nothing in this Part requires a consumer who uses, provides or accepts information or a document to use, provide or accept it in an electronic form without the consumer’s consent.
(10) Subsection (7) applies to all kinds of information and documents, including payments.
…..
Delivery of document
(2) If a supplier is required to deliver a document to a consumer under this Act, the document must, in addition to satisfying the requirements in subsection (1), be delivered in a form in which it can be retained by the consumer.
(1) No supplier shall engage in an unfair practice.
Same, suppliers
(2) A supplier is deemed to be engaging in an unfair practice if,
(a) it engages in any practice that is prescribed as an unfair practice or it fails to do anything where such failure is prescribed as an unfair practice; or
(b) a salesperson acting on behalf of the supplier does or fails to do anything that would be an unfair practice if done or if failed to be done by the supplier.
[3] The sections cited by the applicant in the Municipal Act and the Business Practices Act appear to have been repealed.
[4] The applicant made the following submissions:
(a) He has no access to Canada Post mail service.
(b) He declined to get into the details of his dispute with Canada Post. Specifically, he denied the statement in the affidavit of Michelle Micallef filed by Hydro One that he is able to receive mail by attending at his nearest Post Office and has been so advised by Canada Post.
(c) Hydro One has failed to establish that Ms. Micallef, a low level supervisor, had the authority to make representations on its behalf.
(d) There are numerous perjured, untrue, misleading or irrelevant statements in Ms. Micallef’s affidavit.
(e) He has spoken to numerous persons at Hydro One and no one has identified herself as Michelle Micallef.
(f) There have been couriers for thousands of years. To courier a bill is included within the “mail” method of bill delivery.
(g) He is fully prepared to pay for the cost of the courier.
[5] Hydro One submits that:
(a) the three recognized methods of bill delivery authorized for Hydro One are mail, internet and email;
(b) “mail” means ordinary post; and
(c) the applicant’s dispute with Canada Post does not affect Hydro One’s obligations.
Analysis
[6] The relationship between Hydro One and its customers is governed by the Electricity Act, 1998 and the Ontario Energy Board Act. Hydro One’s relevant statutory obligation is found in the Distribution System Code (“the Code”) issued pursuant to the Ontario Energy Board Act. The relevant provisions are as follows:
Distribution System Code
1 GENERAL AND ADMINISTRATIVE PROVISIONS
1.1 The Purpose of this Code
This Code sets the minimum conditions that a distributor must meet in carrying out its obligations to distribute electricity under its licence and the Energy Competition Act, 1998. Unless otherwise stated in the licence or Code, these conditions apply to all transactions and interactions between a distributor and all retailers, generators, distributors, transmitters and consumers of electricity who use the distributor’s distribution system.
2.6.4 For the purposes of section 2.6.3, a bill will be deemed to have been issued to a customer:
(a) if sent by mail, on the third day after the date on which the bill was printed by the distributor;
(b) if made available over the internet, on the date on which an e-mail is sent to the customer notifying the customer that the bill is available for viewing over the internet;
(c) if sent by e-mail, on the date on which the e-mail is sent; or
(d) if sent by more than one of the methods listed in paragraphs (a) to (c), on whichever date of deemed issuance occurs last.
[7] Accordingly, Hydro One is required to deliver its billings to each customer by mail or electronically. The latter requires the customer’s consent which he has chosen not to give.
[8] An order in the nature of mandamus requiring Hydro One to fulfill its statutory duty is available by judicial review. However, I agree with Hydro One that “mail” in the Code does not mean courier. In my view, what is intended by “mail” in section 2.6.3 of the Code is the official system used for sending and delivering letters and packages which is how bills are customarily received. It cannot include “courier” because if that was an included method, the utility would be required to pay the cost which would be inordinately expensive compared to the cost of the hydro bill. Although Hydro One and its customer could agree to courier as the form of delivery, judicial review does not lie to compel this mode of delivery which is not provided by the Code. I further agree with Ontario Hydro that the applicant’s dispute with Canada Post does not affect the plain meaning of the Code.
[9] The application to review the Justice of the Peace’s decision not to issue process alleges that Hydro One uttered threats, intimidated and terrorized the applicant. That application has not yet been heard. There is no evidence before me on this application in support of the relief sought to order Hydro One to refrain from intimidating him, uttering threats and any other criminal act nor did the applicant make any submissions in this regard.
Conclusion
[10] The application is dismissed.
[11] Although the applicant seemed to think that this was a criminal matter, this is a civil matter. Ordinarily costs follow the event, i.e. having lost his application Hydro One would be entitled to costs. However, I am prepared to hear submissions on entitlement and quantum. Hydro One shall file a 1 page submission on costs within 15 days. The applicant shall have 15 days thereafter within which to make his 1 page submission on costs.
Backhouse J.
Released: July 4, 2013
COURT FILE NO.: 13-10000131-00MO
DATE: 20130704
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Waskowec
Applicant
– and –
Hydro One Networks Inc.
Respondent
REASONS FOR DECISION
Backhouse J.
Released: July 4, 2013