The Application for a Review of the Decision of the Fair Trading Commission

• Jurisdiction: Barbados
• Court: Fair Trading Commission (Barbados)
• Judge: Sir Neville V. Nicholls,Professor Andrew Downes,Mr. Gregory Hazzard
• Judgment Date: 14 February 2007
• Docket Number: NO. 2 OF 2007

In the Matter of the Application for a Review of the Decision of the Fair Trading Commission

filed by

The Barbados Consumer Research Organisation

Before:

Sir Neville V. Nicholls

Chairman

Professor Andrew Downes

Commissioner

Mr. Gregory Hazzard

Commissioner

NO. 2 OF 2007

FAIR TRADING COMMISSION

DECISION AND ORDER

PART ONE – BACKGROUND

The Original Application

1 Cable & Wireless (Barbados) Limited (C&W) submitted an application to the Fair Trading Commission “Commission” on August 5, 2003 seeking:

• a) an adjustment to the domestic line rate for business and residential customers;

• b) the introduction of flat rate charging plans and usage based rates for domestic calls made from fixed lines;

• c) such further or other relief not inconsistent with the above as the Commission sees fit.

2 C&W in its application proposed revised rates for residential and business users of the domestic service. C&W stated that should the proposed domestic rates be approved, C&W intended to adjust international direct dialed (IDD) rates below the current maximum rates.

3 At the conclusion of the rate hearing, the Commission denied C&W's application and ordered that the existing rates for the domestic telephone service should prevail and that the Commission would hear the parties on costs at a date to be fixed.

4 Cable & Wireless (Barbados) Limited (C&W) applied for a Motion for Review that was dismissed by order dated July 20, 2004 and it was further ordered that the Commission would hear the parties on costs at a later date.

5 The Commission prepared and developed Draft Cost Assessment Guidelines (Guidelines) to ensure transparency in the Cost Assessment process prior to convening a costs hearing. The Commission thereafter sought to engage in a public consultation process that invited comments and suggestions on the Guidelines that would guide the award of costs to intervenors.

6 In reviewing the written comments from the Office of the Public Counsel, The Barbados Light & Power Ltd., C&W, Mr. Alvin Cummins, Mr. David A. Commissiong on behalf of Mr. Alvin Thorpe and Mr. Malcolm Gibbs-Taitt on behalf of BARCRO both C&W and the Public Counsel questioned the legality of intervenors being awarded any such costs other than out-of-pocket expenses.

7 The Commission determined that a case should be stated pursuant to Section 41 of the Fair Trading Commission Act, CAP. 326B (Act) and Order 57 Rule 4 of the Rules of the Supreme Court for the opinion of the high court in an action interfiled ( The Public Counsel v. Fair Trading Commission) and heard by the Honourable Mr. Justice Christopher Blackman. A decision was given in the matter on September 28, 2006 in which the court gave the opinion that only intervenors who were represented by Attorneys-at-Law were entitled to costs on a party and party basis, whereas intervenors who were not legally represented were entitled to out-of-pocket expenses only.

8 Pursuant to section 46 of the Fair Trading Commission Act, the Commission convened a hearing to determine how it would exercise its discretion in relation to an order for the costs of the 2003 rate adjustment application by C&W and the eligibility of persons participating therein to recover such costs. Applicants who were desirous of making claims were required to make written submissions which would be supplemented by oral submissions at the actual hearing. Written submissions should set out why the parties in question should be allowed to recover such costs in the form of expenses or on a party and party basis where the intervenor was represented by legal counsel. Submissions should also cover who should bear those costs.

9 The costs hearing was fixed for February 14, 2007 and oral submissions were made by eight (8) intervenors and/or their representatives as well as legal counsel for C&W. The Commission heard oral arguments from Mr. Michael Carrington for Mr. Leroy McClean, Mr. Alvin Cummins, Mr. Hallam Hope for CARITEL, Mr. Olson Robertson, Mr. Malcolm Gibbs-Taitt for Barbados Consumer Research Organisation Inc. (BARCRO), Mr. Alvin Thorpe, Mr. Barry Carrington, Office of Public Counsel for the Council for the Disabled, Mr. Noel Smith and Mr. Patterson Cheltenham, Q.C. for Cable & Wireless (Barbados) Limited.

Original Decision

10 The Commission issued its costs hearing decision on May 2, 2007 and decided and ordered that all parties should bear their own costs of the rate adjustment hearing including the costs of the costs hearing.

Filing of the Motion for Review

11 Mr. Malcolm Gibbs-Taitt, on behalf of the Barbados Consumer Research Organisation Inc. (BARCRO) filed a NOTICE of Motion for Review pursuant to Section 36 of the Fair Trading Commission Act, CAP. 326B and Rule 53 of the Utilities Regulation (Procedural) Rules (Rules), S.I. 104 of 2003 on May 16, 2007.

12 Rule 53 of the Rules states, inter alia, that:

“(1) the Commission may at any time, without notice or a hearing of any kind, correct a typographical error, error of calculation, misstatement, ambiguity, technical error or other similar error made in its decision or order. (2) Any party to a proceeding may by motion request a review of a final decision or order.”

Order requested by BARCRO

13 The relief sought by BARCRO in its Notice of Motion for Review is that the Commission should, in whole or in part, vary or set aside its decision and additionally that all costs in the matter be borne by C&W.

Written Hearing Review

14 The Commission decided that (a) the determination of the preliminary issue of whether the matter should be reviewed and (b) the consideration of the review on the merits i.e. to assess whether the costs hearing decision should be varied or rescinded, would be by means of a written hearing pursuant to Rule 37 (1) of the Rules.

15 On May 30 and June 14, 2007 BARCRO filed written submissions with the Commission. These submissions were filed on all of the parties who participated in the costs hearing and they were given twenty-one (21) calendar days to respond to BARCRO's submissions. Legal Counsel for the Respondent (C&W) and the Public Counsel were the only two parties who filed written submissions in response to BARCRO's Motion for Review. Thereafter, BARCRO filed a written submission of reply on August 2, 2007.

Duty of Commission

16 In hearings the Commission sits as an adjudicative panel and is required by legislation and principles of natural justice to make a determination based on the evidence put before it. By virtue of section 36 of the Act the Commission has jurisdiction on an application from a party or on its own motion to review, vary or rescind any decision given by it. The decision to allow a review is not taken lightly and in instances when the Commission allows a review it is prescribed by the Rules. The Commission's discretion to review and vary or rescind a decision or order is applied with a view to ensuring that there is consistency and predictability in the Commission's decision-making process.

17 A review is not a vehicle for applicants or intervenors to re-argue their submissions made at an earlier hearing simply because they do not agree with the decision. Under the Act, the authority of the Commission to allow a review is discretionary. An applicant must first demonstrate, on a prima facie basis, the existence of the permissible grounds of Review, this is referred to as the threshold question.

18 Rule 55 (1) of the Rules states that:

“(1) The Commission shall determine with a hearing, in respect of a motion brought under Rule 53 the threshold question of whether the matter should be reviewed or whether there is reason to believe the order should be rescinded or varied.”

19 In accordance with Rule 55 (3) the Commission decided that it would combine the consideration of the threshold question and a review on the merits and would hold a consolidated hearing. As such, legal counsel for C&W and the Public Counsel in their written submissions addressed both (a) the threshold question and (b) the review on the merits to determine whether the decision should be varied or rescinded.

20 To discharge its first task vis-à-vis whether a review should be granted the Commission considered the Motion for Review and the complete written submissions and presentations received from all parties to the proceedings.

The Threshold Question

21 Unlike legal counsel for C&W and the Public Counsel, BARCRO did not specifically deal with the issue of the threshold question. However, in accordance with Rule 55 of the Rules, the Commission examined BARCRO's full written submissions when determining the threshold question of whether the decision of February 14, 2007 should be reviewed and to determine whether the decision and order should be varied or rescinded, thus a review on the merits.

22 BARCRO's written submissions contained the reasons why it believed that the decision should be reviewed, which are hereinafter examined in Parts three and four.

23 Legal Counsel for C&W and the Public Counsel in their submissions expounded on the issue of the threshold question. Both submitted that BARCRO is required to show on a prima facie basis that an error of law or fact exists by presenting specific examples or instances of error by reference to the evidence. It is their view that BARCRO has not presented to the Commission any facts which would support the existence of an error of fact or of law.

24 The Commission approached the threshold question by considering whether BARCRO has established on a prima facie basis that an error of fact or law exists within the decision. The Commission considers that BARCRO must place before it specific references to aspects of its decision to demonstrate error of law or error of fact within the decision.

25 According to Black's Law Dictionary, a prima facie case is:

• (a) the establishment of a legally required rebuttable...