The Fair Trading Commission Act, Cap. 326B of the Laws of Barbados;

• Jurisdiction: Barbados
• Court: Fair Trading Commission (Barbados)
• Judge: Sir Neville Nicholls,Mr. Gregory Hazzard,Mr. Andrew Brathwaite,Mr. Andrew Willoughby,Dr. Philmore Alleyne
• Judgment Date: 24 January 2014
• Docket Number: FTCUR/STYRER-2014-01

In the Matter of the Fair Trading Commission Act, Cap. 326B of the Laws of Barbados;

And in the Matter of the Utilities Regulation Act, Cap. 282 of the Laws of Barbados;

And in the Matter of the Utilities Regulation (Procedural) Rules, 2003 and the Utilities Regulation (Procedural) (Amendment) Rules, 2009;

And in the Matter of the Application by the Barbados Light & Power Company Limited for a Stay of the Decision of the Fair Trading Commission dated the 8 ^th day of August, 2013.

Before:

Sir Neville Nicholls Chairman

Mr. Gregory Hazzard Commissioner

Mr. Andrew Brathwaite Commissioner

Mr. Andrew Willoughby Commissioner

Dr. Philmore Alleyne Commissioner

FTCUR/STYRER-2014-01

FAIR TRADING COMMISSION

DECISION

APPLICATION FOR A STAY OF THE RENEWABLE ENERGY RIDER DECISION

1 The Barbados Light & Power Company Limited (hereinafter referred to as the Applicant) by a Notice of Motion dated and filed on the 3 ^rd of December, 2013 applied for a review and variation of the Decision of the Fair Trading Commission (Commission) on the Renewable Energy Rider (RER) dated August 8 ^th, 2013.

2 The Applicant has also sought an order staying the RER Decision until final determination of the Motion.

3 As it relates to the Application for a Stay of the RER Decision, the Applicant contended that the implementation of the RER Decision before the Motion for a review is heard will be detrimental to it.

4 The Applicant informed the Commission that it implemented the following aspects of the RER Decision:

• a. Informing all prospective customers that the maximum allowable size of the unit is 1.5 times their average usage up to a maximum of 150kW; and

• b. Discontinuing the implementation of the “buy all/sell all” option for prospective large customers and utilising only the Configuration 1 metering arrangement.

THE APPLICANT'S SUBMISSIONS ON THE STAY

5 The Applicant, in its submissions, expressed the view that the stay should be granted. It based its arguments on the fact that it could meet the legal criteria that are ordinarily used by tribunals, such as the Commission, in determining whether a stay or delay of the decision should be granted. The Applicant submitted the following criteria that the Commission should consider when determining whether or not a stay should be granted:

• a. The Applicant's likelihood of success on the merits of the review;

• b. Irreparable harm to the Applicant if a stay is not granted, that is, that there is no adequate redress for the injury that may result;

• c. Absence of significant harm to other parties;

• d. Whether a stay or delay would serve the public interest, that is, that a stay would not adversely affect the public interest; and

• e. Any other criteria the Commission deems appropriate.

6 Additionally, the Applicant indicated that the following grounds/merits support the Motion and equally support the stay:

• a. Under the “sale of excess” billing arrangement, the Applicant will lose base revenue required to adequately cover the cost of serving RER customers.

• b. Customers on the Secondary Voltage Power (SVP) and Large Power (LP) tariffs will obtain reduced benefits under the “sale of excess” compared to the “buy all/sell all” billing arrangement;

• c. The Commission's determination to disallow the Alternate Meter Configuration 2 may result in a substantial increase in the installation cost to some RER customers;

• d. That allowing customers to install systems that would produce up to 1.5 times their total usage and up to a maximum size of 150kW was made on the basis that the Commission would accept the “buy all/sell all” billing arrangement to replace the “sale of excess” arrangement;

• e. The “sale of excess” billing arrangement will disadvantage the Applicant, its non-RER customers and the RER customers who are billed on the SVP and LP tariffs.

THE COMMISSION'S POSITION

Burden and Standard of Proof

7 In order for the Commission to grant the stay which is being sought by the Applicant, the burden and the standard of proof required to be met under the law must be discharged. This matter is analogous to civil proceedings in a court of law; therefore, both the burden and standard of proof in this instance would be the same as civil proceedings in a court of law. The general rule in law is that the burden of proof in civil cases lies on the party who asserts an issue. Therefore, the burden of proof in this instance would be on the Applicant to prove that the stay should be granted.

8 As it relates to the standard of proof, Section 131 of the Evidence Act stipulates that:

“ In a civil proceeding, the court shall find the case of a party proved if it is satisfied that the case has been proven on a balance of probability...