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Vancouver
16-Mar-15
NO. S135590
Vancouver Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
NOMI DAVIS, AS REPRESENTATIVE PLAINTIFF
PLAINTIFF
AND:
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
DEFENDANT
NOTICE OF APPLICATION
BROUGHT UNDER THE CLASS PROCEEDINGS ACT [RSBC 1996] Chapter 50
Name of applicants: The Plaintiffs, Nomi Davis and Jessica Klein
To: The Defendant British Columbia Hydro and Power Authority (“BC Hydro”)
TAKE NOTICE that an application will be made by the applicants to the Judicial
Management Judge, Madam Justice Adair, at the courthouse at 800 Smithe Street in
Vancouver on the 27th day of April, 2015 for the orders set out in Part 1 below.
The application is for the orders set out in Part 1 below.
Part 1: ORDERS SOUGHT
1. An Order that the Plaintiffs be permitted to add Tim O’Connor, Ashif Halani,
Sharon Schnurr and Sharon Noble as plaintiffs and file a Second Notice of Civil
Claim in replacement of the Further Amended Notice of Civil Claim.
2. An Order that the Plaintiffs be permitted to amend the September 19, 2014,
Notice of Application for certification by replacing it with a fresh Notice of
Application based on the Second Notice of Civil Claim.
3. An Order rescheduling the procedural steps leading up to the certification hearing
so as to provide inter alia for:
a. Relief from the obligation to file written argument on February 27, 2015,
as per the Order of July 16, 2014;
b. service of Notice of Constitutional Question prior to the certification
hearing; and
c. the Defendant to file material in response to the amended pleadings.
4. An Order changing the style of cause to add all the plaintiffs.
Part 2: FACTUAL BASIS
1. The Plaintiffs reply on the facts and defined terms as pleaded in the draft Second
Notice of Civil Claim in the form appended to this Notice of Application.
2. The Plaintiffs have faced a moving target in these proceedings. The present legal
regime (that authorizes the conduct impugned in these proceedings) did not exist
upon the commencement of this action on July 25, 2013. That legal regime came
into effect with the coming into force of BC Regulation 203/2013 (“Direction No.
4”) on September 25, 2013.
3. It has taken the Plaintiffs until now to formulate and adapt their case to the
following realities that arise as a result of Direction No. 4:
a) Direction No. 4 effectively completes and perfects a statutory /
administrative regime which authorizes BC Hydro to peremptorily
impose, under the pain of Service Refusal, an RF-Emitting Meter on 96%
of its Customers;
b) The Plaintiffs’ claims in tort, as set out in their original pleadings, are now
statute barred;
c) The proper issue for litigation is whether the new regime, as effected
through Direction No. 4, amounts to an unjustifiable infringement of s. 7
and/or s. 8 of the Charter as alleged in the draft Second Notice of Civil
Claim; and
2
d) Direction No. 4 creates categories of BC Hydro customers and those
categories properly form the basis for three classes on whose behalf this
action should proceed as a representative claim.
4. Prior to Direction No. 4, BC Hydro did not have the benefit of the legislative /
regulatory structure which authorized the conduct impugned in this action. BC
Hydro delayed filing a defence pleading in this action until after the enactment of
Direction No. 4.
5. By bringing Direction No. 4 into force on September 25, 2013, the Province
changed the law and thereby changed the case that the Plaintiffs need to bring
against BC Hydro.
6. The Plaintiffs’ original pleadings in this action were based on the pre-Direction
No. 4 scenario; brought on the basis of alleged torts that have since become
barred by the effect of Direction No. 4.
7. The action must now be re-framed as a Charter challenge against the Impugned
Provisions and the Impugned Conduct that is authorized thereunder.
8. The Plaintiffs’ initial amendments to their pleadings in early 2014 were not
appropriately adaptive to the new circumstances brought about by Direction No.
4. Neither the Notice of Civil Claim nor any prior amendments thereto were
suited to litigating the issues that arise as result of Direction No. 4 coming into
force
9. The Second Notice of Civil Claim consists of:
a. An abandonment of all causes of action (except under the Charter s. 7 & s.
8) so as to challenge legislative structure which authorizes the Impugned
Conduct in these proceedings;
b. An elaboration of statement of facts to describe the regulatory landscape
rendered relevant (and impugned) by the coming into force of Direction
No. 4;
c. An elaboration of the statement of facts in support of the Charter claim;
d. An elaboration of the legal basis for the Charter claim
e. The addition of plaintiffs who are proposed as representative plaintiffs of
the three sub-classes that were created out of Direction No. 4, those subclasses being:
3
CLASS A:
Represented by Davis and O’Connor
All residential customers of BC Hydro who are Ineligible Customers
under the Meter Choices Program and therefore required to accept the
operation of an RF-Emitting Meter (“smart meter”) at their respective
homes.
CLASS B:
Represented by Klein and Halani
Non-residential (“general service”) customers of BC Hydro who are
Ineligible Customers under the Meter Choices Program and therefore
required to accept the operation of an RF-Emitting Meter (“smart meter”)
at their respective premises.
CLASS C:
Represented by Schnurr and Noble
All customers of BC Hydro who are Eligible Customers under the Meter
Choices Program.
10. Subsequent to the preparation of the Notice of Application for certification, the
BC Human Rights Tribunal issued a decision which may be relevant to the
application for certification.
11. It would have been preferable to serve the offices of the provincial Attorney
General and federal Attorney General with notice of constitutional question so as
to give them an opportunity to participate at the certification stage of these
proceedings.
Part 3: LEGAL BASIS
12. The Class Proceedings Act, section 5(6), provides that the Court may adjourn the
application for certification to permit the parties to amend their materials or
pleadings or to permit further evidence.
13. In Halvorson v. British Columbia (Medical Services Commission), 2010 BCCA
267, the British Columbia Court of Appeal emphasized that judges tasked with
case management of class actions have to keep in mind the purposes of the CPA
and allow for procedural flexibility, appreciating that plaintiffs in proposed class
actions may re-cast their cases. The Court held, at para. 23:
23 With respect, the case management judge's concern that this Court
departed from the pleadings and arguments initially placed before the
chambers judge on the certification hearing is unwarranted. To hold
plaintiffs strictly at the certification stage to their pleadings and arguments
as they were initially formulated would in many cases defeat the objects of
the Act - judicial economy, access to justice, and behaviour modification:
4
Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001]
2 S.C.R. 534, at paras. 26-29; Hollick v. Toronto (City), 2001 SCC 68,
[2001] 3 S.C.R. 158 at para. 15. In Bendall v. McGhan Medical Corp.
(1993), 14 O.R. (3d) 734 at 747 (Gen. Div.), leave to appeal ref'd [1993]
O.J. No. 4210, in a passage adopted in Endean v. Canadian Red Cross
Society (1997), 36 B.C.L.R. (3d) 350 at para. 58 (S.C.), appeal allowed in
part (1998), 48 B.C.L.R. (3d) 90 (C.A.), the court described certification
as "a fluid, flexible procedural process". There must be procedural
flexibility in order to facilitate realization of the statutory purposes and,
contrary to the view that has been causing the case management judge
such consternation, there is nothing wrong with plaintiffs reformulating
their approach on appeal. As was stated in Markson v. MBNA Canada
Bank (2007), 85 O.R. (3d) 321 at para. 39 (C.A.), leave to appeal ref'd
[2007] S.C.C.A. No. 346,
[39] Provided the defendant is not prejudiced, it is open to a
plaintiff to recast its case to make it more suitable for certification:
see Kumar v. Mutual Life Assurance Co. of Canada, [2003] O.J.
No. 1160, 226 D.L.R. (4th) 112 (C.A.), at paras. 30-34 and Rumley
v. British Columbia, [2001] 3 S.C.R. 184, [2001] S.C.J. No. 39,
205 D.L.R. (4th) 39, at para. 30.
….
31 Undoubtedly, the broad issues identified by this Court must be
grounded in the pleadings and, as Mr. Justice Mackenzie noted, these
issues differ from the issues educed from the appellant's initial pleadings.
It is readily apparent that, when a plaintiff recasts a claim to make it
suitable for certification, it may be necessary to amend the statement of
claim to support the reformulated claim. This follows from the general
principle that all necessary amendments should be made to enable the real
issues between the parties to be determined in order to facilitate the "just,
speedy, and inexpensive determination of every proceeding on the merits":
see Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145
at 153 (C.A.).
14. Pleadings are not meant to limit a case, but to express a case. The pleadings
should not constitute a straightjacket lest they interfere with the proper
presentation of the case. Litigants are not meant to be enslaved by their
pleadings, which are there to aid the Court in serving justice.
15. Given the time that it takes for a class action to proceed, BC Hydro is not going to
be prejudiced by the proposed revamping of the Plaintiffs’ case. It will have time
to respond. No party will be prejudiced to an extent that cannot be
accommodated by an adjournment. No party suffers irreparable harm as a result
of pleadings being clarified to better serve a fair presentation of a case suited to
certification.
5
16. The Province brought a new regime into effect in mid-litigation to create statutory
authorization for the impugned conduct. It is the Province (for which BC Hydro
is agent) that has presented the Plaintiffs with a moving target as to the case to be
met. BC Hydro cannot cry foul in relation to the recalibrations that the Plaintiffs
must make to their case in order to address the shifting landscape.
17. BC Hydro began to install RF-Emitting Meters and charge Opt-Out Fees
immediately upon the implementation of Direction No. 4, regardless of the fact
that this litigation was pending. The Plaintiffs have requested that BC Hydro
refrain from proceeding with installations of RF-Emitting Meters as a result of its
authority to do so arising from Direction No. 4. BC Hydro declined to put such
installations on hold and, as of December 1, 2013, has forged ahead with the very
conduct that is impugned in these proceedings. At no time has BC Hydro altered
its conduct as a result of this litigation or held any aspect of its “smart meter”
program in abeyance. The delay caused by the Proposed Amendment is
inconsequential to BC Hydro from an operational point of view and there is no
prejudice to BC Hydro arising therefrom.
18. Pursuant to Rule 6-2(7)(b)(ii) of the Supreme Court Civil Rules, the Court, on
application by any person, may order that a person be added as a party if that
person's participation in the proceeding is necessary to ensure that all matters in
the proceeding may be effectually adjudicated on.
19. Pursuant to Rule 6-2(7)(c) of the Supreme Court Civil Rules, the Court, on
application by any person, may order that a person be added as a party if there
may exist, between the person and any party to the proceeding, a question or issue
relating to or connected with (i) any relief claimed in the proceeding, or (ii) the
subject matter of the proceeding, that, in the opinion of the Court, it would be just
and convenient to determine as between the person and that party.
20. It would be just and convenient for the issues in these proceedings to be
determined as between the Defendant and the proposed additional plaintiffs.
21. The Plaintiffs further rely on their right to amend pleadings pursuant to Rule 61(1) of the Supreme Court Civil Rules.
Part 4: MATERIAL TO BE RELIED ON
1. The draft Second Notice of Civil Claim and draft replacement Notice of
Application for certification as respectively attached as appendices A and B to
this Notice of Application;
2. the Affidavit of Tim O’Connor sworn September 16, 2014;
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3. the Affidavits of Ashif Halani sworn September 16, 2014; and November 27,
2014;
4. the Affidavit of Sharon Schnurr to be filed;
5. the 2nd Affidavit of Sharon Noble to be filed; and
6. the pleadings and proceedings filed herein and such further and other material as
requested by counsel and allowed by this Honourable Court.
The applicant estimates that the application will take one day.
This matter is not within the jurisdiction of a master.
TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to
respond to this notice of application, you must, by January 20, 2014, in accordance with
the January 8, 2014, order of Madam Justice Adair in these proceedings:
(a) file an application response in Form 33,
(b) file the original of every affidavit, and of every other document, that
(i) you intend to refer to at the hearing of this application, and
(ii) has not already been filed in the proceeding, and
(c) serve on the applicant 2 copies of the following, and on every other party of record
one copy of the following:
(i) a copy of the filed application response;
(ii) a copy of each of the filed affidavits and other documents that you intend to
refer to at the hearing of this application and that has not already been served on
that person;
(iii) if this application is brought under Rule 9-7, any notice that you are required
to give under Rule 9-7 (9).
March 13, 2015
_______________________
David M. Aaron
Counsel for the Plaintiffs
7
To be completed by the court only:
Order made
[]
in the terms requested in paragraphs ...................... of Part 1 of this
notice of application
[]
with the following variations and additional terms:
...............................................................................................................
....................................................
Signature of [ ] Judge [ ] Master
Appendix
THIS APPLICATION INVOLVES THE FOLLOWING:
[Check the box(es) below for the application type(s) included in this application.]
[]
discovery: comply with demand for documents
[]
discovery: production of additional documents
[]
other matters concerning document discovery
[]
extend oral discovery
[]
other matter concerning oral discovery
[x ]
amend pleadings
[x ]
add/change parties
[]
summary judgment
[]
summary trial
[]
service
[]
mediation
[]
adjournments
[]
proceedings at trial
[]
case plan orders: amend
[]
case plan orders: other
[]
experts
8
Appendix “A”
NO. S135590
Vancouver Registry
BETWEEN:
NOMI DAVIS, JESSICA KLEIN, TIM O’CONNOR, ASHIF HALANI, SHARON
SCHNURR and SHARON NOBLE
PLAINTIFFS
AND:
DEFENDANT
BROUGHT UNDER THE CLASS PROCEEDINGS ACT, [RSBC 1996] Chapter 50
SECOND NOTICE OF CIVIL CLAIM
This action has been started by the plaintiffs for the relief set out in Part 2 below.
If you intend to respond to this action, you or your lawyer must
(a) file a response to civil claim in Form 2 in the above-named registry of this court
within the time for response to civil claim described below, and
(b) serve a copy of the filed response to civil claim on the plaintiff.
If you intend to make a counterclaim, you or your lawyer must
(a) file a response to civil claim in Form 2 and a counterclaim in Form 3 in the abovenamed registry of this court within the time for response to civil claim described below,
and
(b) serve a copy of the filed response to civil claim and counterclaim on the plaintiff and
on any new parties named in the counterclaim.
JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to
civil claim within the time for response to civil claim described below.
1
Time for response to civil claim
A response to civil claim must be filed and served on the plaintiff(s),
(a) if you reside anywhere in Canada, within 21 days after the date on which a copy of
the filed notice of civil claim was served on you,
(b) if you reside in the United States of America, within 35 days after the date on which a
copy of the filed notice of civil claim was served on you,
(c) if you reside elsewhere, within 49 days after the date on which a copy of the filed
notice of civil claim was served on you, or
(d) if the time for response to civil claim has been set by order of the court, within that
time.
Claim of the Plaintiffs
Part 1: STATEMENT OF FACTS
Parties
1.
The Plaintiff, Nomi Davis (“Davis”), is an individual residing at 334 Cusheon Lake Road
on Salt Spring Island, in the Province of British Columbia.
2.
The Plaintiff, Tim O’Connor (“O’Connor”), is an individual residing at 130 Dover Place
on Salt Spring Island, in the Province of British Columbia.
3.
The Plaintiff, Jessica Klein (“Klein”), is an individual and proprietor of Homestead
Certified Organic Farm with a business premises at 4855 MacKinnon Road, Peachland.
4.
The Plaintiff, Ashif Halani (“Halani”), is an officer of Robsonstrasse City Motor Inn Ltd.
(“Robsonstrasse”), a company incorporated under the laws of British Columbia and doing
business as Robsonstrasse Hotel & Suites out of premises at 1394 Robson Street,
Vancouver, British Columbia.
5.
The Plaintiff, Sharon Schnurr (“Schnurr”), is an individual residing at 819 Balsam Road,
Kelowna, BC, in the Province of British Columbia.
6.
The Plaintiff, Sharon Noble (“Noble”), is an individual residing at 818 Bexhill Place,
Victoria, in the Province of British Columbia.
7.
The Defendant, British Columbia Hydro and Power Authority (“BC Hydro”), is a Crown
2
corporation and agent of the Crown operating under the Hydro and Power Authority Act
R.S.B.C. 1996, c. 212.
Definitions
“Meter”
8.
For the purposes of this claim, “Meter” means a measuring device used by an electrical
utility to measure and record a customer’s power consumption data.
“Microwave Device”
9.
For the purposes of this claim, “Microwave Device” means a microwave radiofrequencyemitting, communication transmitter that is embedded in some Meters for the purpose of
transmitting customer power consumption data to the utility’s network.
“Smart Meter”
10.
For the purposes of this claim, “Smart Meter” (where capitalised) has the meaning
ascribed to it by definition under section 17(1) of the Clean Energy Act [SBC 2010]
CHAPTER 22 and section 2 of the Smart Meters and Smart Grid Regulation, B.C. Reg.
368/2010 (“the Smart Meter Regulation”).
11.
The statutory definition of Smart Meter, as set out in the CEA and Smart Meter
Regulation, includes the requirement that the meter transmit and receive information in
digital form; however, the definition does not include any reference to the means of
transmission, nor does it prescribe or refer to transmission by way of radiofrequency
communication or any other such “wireless” means.
12.
A Smart Meter may or may not contain a Microwave Device. Some Smart Meters do not
contain a Microwave Device and, instead, transmit data by way of hard-wired
telecommunication lines.
13.
Where a Smart Meter does contain a Microwave Device, the operation of the Microwave
Device may either be enabled or disabled.
“Radio-off Meter”
14.
For the purposes of this claim, “Radio-off Meter” means a Smart Meter that contains a
Microwave Device, the operation of which has been disabled.
3
“RF-Emitting Meter”
15.
For the purposes of this claim, “RF-Emitting Meter” means a Smart Meter that contains a
Microwave Device, the operation of which has been enabled. This is the kind of meter
that is impugned in these proceedings. It is popularly referred to as a “smart meter” and
such references are cited herein using the term “smart meter” in quotation marks without
capitalization.
“Dwelling”
16.
For the purposes of this claim, “Dwelling” means a domestic residence or commercial
premises to which a utility provides electrical service.
“Customer”
17.
For the purposes of this claim, “Customer” means any individual, person, partnership,
company or other entity receiving electrical service from an electrical utility at any
particular Dwelling.
“Opt-Out Fee”
18.
For the purposes of this claim, “Opt-Out Fee” means a fee that an electrical utility
charges to a Customer in exchange for the utility abiding by the Customer’s choice to be
free from the installation / operation of an RF-Emitting Meter at a particular Dwelling.
“Failed Installation Fee”
19.
For the purposes of this claim, “Failed Installation Fee” means a fee related to BC
Hydro’s attendance at a Dwelling to install an RF-Emitting Meter where installation is
not carried out because of either an objection made by a Customer or an obstruction.
“Service Refusal”
20.
For the purposes of this claim, “Service Refusal” means a refusal by an electrical utility
to initiate or continue the supply of electrical service to a Dwelling for reason of a
Customer’s refusal to:
a) Allow the installation of an RF-Emitting Meter at a Dwelling; or
b) Pay an Opt-Out Fee or Failed Installation Fee.
4
“Impugned Conduct”
21.
This claim challenges the constitutionality of the following conduct by BC Hydro:
a) Operation of an RF-Emitting Meter at a Dwelling of a Customer who at any time
requests that there be no operation of an RF-Emitting Meter at his/her Dwelling;
b) Threatening or effecting a Service Refusal;
c) Exacting payment from a Customer of an Opt-Out Fee in exchange for BC Hydro
abiding by the Customer’s choice to be free from the installation / operation of an
RF-Emitting Meter at a particular Dwelling.
d) Exacting payment from a Customer of a Failed Installation Fee related to BC
Hydro’s attendance at a Dwelling to install an RF-Emitting Meter where
installation is not carried out because of either an objection made by a Customer
or an obstruction.
(“the Impugned Conduct”)
“Impugned Provisions”
22.
This claim challenges the constitutional validity of the various legislative and/or
administrative acts to the extent that they individually and/or collectively, by purpose or
effect, authorize the Impugned Conduct, including:
a) Clean Energy Act [SBC 2010] CHAPTER 22, section 17;
b) Smart Meters and Smart Grid Regulation, B.C. Reg. 368/2010 (“the Smart Meter
Regulation”);
c) Hydro and Power Authority Act, R.S.B.C. 1996, c. 212, section 20;
d) Electricity and Gas Inspection Act, (R.S.C., 1985, c. E-4), section 7;
e) BC Hydro Electric Tariff (“the Tariff”), sections 2.3, 4.2 - 4.2.5 and 9.5;
f) BC Regulation 203/2013 (“Direction No. 4”) and the amendments to the Tariff, as
dictated by Direction No. 4, (i.e. sections 4.2.1, 4.2.2, 4.2.3 & 4.2.4) including the
criteria for opt-out eligibility under the Meter Choices Program, the imposition of
an Opt-Out Fee, the imposition of a Failed Installation Fee, the definition of a
“smart meter” as an RF-Emitting Meter and the establishment of such a meter as
BC Hydro’s standard meter that must be installed at each Customer’s Dwelling.
5
Regulation of Electrical Service in British Columbia
23.
BC Hydro is a public utility that enjoys a virtual monopoly over the provision of
electrical service to its 1.8 million customers in British Columbia, with the exception of
New Westminster and portions of the Okanagan and Kootenay regions that are serviced
by FortisBC Inc. (“Fortis”).
24.
Fortis is an investor-owned, regulated utility engaged in the business of generation,
transmission, distribution and bulk sale of electricity in the southern interior of British
Columbia, serving over 162,000 customers directly and indirectly through municipally
owned utilities in its service area.
25.
Both BC Hydro and Fortis are regulated by the British Columbia Utilities Commission
(“the Commission”) under the provisions of the Utilities Commission Act [RSBC 1996]
Chapter 473.
Exemption from regulation
26.
The deployment of a program of RF-Emitting Meters is subject to section 45(1) of the
Utilities Commission Act, which prohibits the expansion of a public utility in the absence
of approval by the Commission by way of a certificate of public convenience and
necessity (“CPCN”).
27.
With respect to BC Hydro’s installation and operation of Smart Meters and related
equipment, the Clean Energy Act exempts BC Hydro from having to obtain a CPCN
under section 45(1) of the Utilities Commission Act. The exempting provisions of the
Clean Energy Act are subsections 7(j) & (k) as well as subsections 17(2) to (4).
28.
The above-referenced exemption does not apply to Fortis or any other electrical utility.
29.
On July 26, 2012, Fortis applied to the Commission for a CPCN in relation to a program
whereby Fortis proposed to:
a) Install and operate an RF-Emitting Meter at the Dwelling of each Customer; and
b) Effect a Service Refusal at any Dwelling where the Customer refused the
installation or operation of an RF-Emitting Meter.
(“the Peremptory Program”)
30.
By Order C-7-13 dated July 23, 2013, the Commission declined to authorize the
Peremptory Program and, instead, issued Fortis a CPCN on the condition that Fortis
obtain the Commission’s approval of an opt-out program whereby:
6
a) Each Customer may choose to opt out of accepting an RF-Emitting Meter (“the
Opt-Out Right”);
b) In place of an RF-Emitting Meter, a Radio-off Meter will be installed at the
Dwelling of any Customer who exercised the Opt-Out Right;
c) Transmit functions on the Radio-off Meters of opt-out Customers will remain
disabled until the Customer chooses to opt back in to the “smart meter” program;
d) In the event that the opt-out Customer moves from his/her Dwelling, the opt-out
choice will move with the Customer; and
e) Each Customer who exercises the Opt-Out Right may be charged an Opt-Out Fee
in an amount to be approved by the Commission.
31.
On August 30, 2013, Fortis applied to the Commission for approval of an opt-out
program whereby:
a) Customers may choose to have a Radio-off Meter put in place at any time;
b) Customers wanting to have a Radio-off Meter must complete and sign an
application form as prescribed by Fortis;
c) Fortis will charge a per-Dwelling setup fee of $110. This fee applies to Customers
who elect to have a Radio-off Meter installed during the initial “smart meter”
project roll-out, to Customers who elect to have a Radio-off Meter put in place
subsequent to the “smart meter” being installed and to existing opt-out Customers
who move premises;
d) Fortis will read the Radio-off Meter every two months, charging a $22 fee for
each reading; and
e) A Customer electing to switch from a Radio-off Meter to a standard radio-on AMI
meter will pay a final manual meter reading fee of $22.
32.
By Order G-220-13, dated December 19, 2013, the Commission declined Fortis’ August
30, 2013, application and, instead, ordered that:
a) Fortis must confirm with the Commission on or before January 27, 2014, that the
enrollment process for the Radio-off Meter option is comparable to the process a
Customer must follow to obtain general electric service. Processes that impose an
unnecessary barrier for those wishing to avail themselves of the service are not
acceptable to the Commission;
7
b) Customers who elect, prior to the deployment of Smart Meters in their region, to
have a Radio-off Meter put in place will be charged a per-premises setup fee of
$60 rather than $110;
c) Customers who elect, subsequent to the deployment of the Smart Meters in their
region, or customers who have previously had a Radio-off Meter installed and
move premises, will be charged a per-premises setup fee of $88.00 rather than
$110;
d) The Radio-off Meter will be read every two months and Customers will be
charged an $18 fee for each reading rather than $22;
e) A Customer electing to switch from a Radio-off Meter to a standard radio-on AMI
meter will pay a final manual meter reading fee of $18 rather than $22; and
f) The per-premises setup fees and the bi-monthly manual meter reading fee are set
on a permanent basis. FortisBC is directed to track manual meter reading costs
associated with the Radio-off AMI Meter program and to provide a report on
these costs and the number of participants to the Commission by September 30,
2016, irrespective of whether or not a fee revision is proposed.
33.
The Commission has also approved an opt-out program of another public electrical
utility, Nelson Hydro, whereby each Customer may choose, at any time, for any reason
whatsoever, to be free of a radiofrequency-emitting electrical meter at his/her Dwelling.
34.
On September 25, 2013, the Lieutenant Governor in Council issued BC Regulation
203/2013 (“Direction No. 4”) requiring the Commission to effect a BC Hydro opt-out
program (“the Meter Choices Program”) in accordance with terms and language dictated
by the Lieutenant Governor in Council.
35.
But for Direction No. 4, the Commission would have ordinarily exercised regulatory
approval over any BC Hydro opt-out program. That oversight would have been exercised
through the Commission’s approval of any changes to terms and conditions of the BC
Hydro Electric Tariff (“the Tariff”) in accordance with which BC Hydro is required to
provide electricity to its Customers.
36.
Direction No. 4 mandates that the Commission must order amendments to the Tariff in
the form of language attached as an appendix. Direction No. 4 required that the
Commission order such amendments within 30 days of the issuance of Direction No. 4.
37.
Whereas the Fortis opt-out program, as approved by the Commission, allows any Fortis
customer to opt out by payment of the approved fee, Direction No. 4 creates a program
8
whereby the opt-out choice is denied to 96% of BC Hydro customers, as explained below.
Imposition of RF-Emitting Meters
38.
Until recently, BC Hydro has used only non-communicating, electro-mechanical and
digital meters (“Legacy Meters”) to measure and record Customer electricity
consumption.
39.
In 2010, the British Columbia Legislature enacted the Clean Energy Act and the Smart
Meter Regulation which, together, require that BC Hydro “must install and put into
operation smart meters and related equipment” by the end of 2012.
40.
The Clean Energy Act and Smart Meter Regulation definition of Smart Meters does not
require RF-Emitting Meters.
41.
Beginning in the summer of 2011, without having to obtain a CPCN or any other
regulatory approval, BC Hydro began replacing Legacy Meters with RF-Emitting Meters
without giving any Customer the choice to opt out.
42.
In some cases, BC Hydro delayed installation of the RF-Emitting Meter; however, BC
Hydro at all material times took the position that the “smart meter” was mandatory and
that position was advanced under the coercive threat of Service Refusal.
43.
On July 18, 2013, Bill Bennett, Minister of Energy and Mines, made the following
statement by way of press release announcing BC Hydro’s “Meter Choices Program”:
As we have said, nobody will be forced to take a smart meter. I believe that this is
a fair and reasonable solution for all British Columbians.
44.
After more than two years of peremptory installations, and two months after the
commencement of this Action, the Lieutenant Governor in Council issued BC Regulation
203/2013 (“Direction No. 4”) dated September 25, 2013, which effected a “Meter
Choices Program” whereby an opt-out choice was to be provided to only residential
Customers who had thus far managed to avoid the installation of an RF-Emitting Meter
(“Eligible Customers”).
45.
Despite the Minister’s statement, the following categories of BC Hydro Customers
remain without the choice to be free of an RF-Emitting Meter at their Dwellings; their
only alternative to an RF-Emitting Meter is Service Refusal:
a) Any non-residential Customer, otherwise referred to as a commercial or “general
service” Customer;
9
b) Any residential Customer at whose Dwelling an RF-Emitting Meter had already
been installed as of September 25, 2013, regardless of whether that installation
was against the Customer’s express objections; and
c) Any residential Customer at whose Dwelling service was commenced after
December 1, 2013.
(“Ineligible Customers”)
46.
Ineligible Customers who, as of September 25, 2013, had not yet had an RF-Emitting
Meter installed have either been subject to an actual or threatened Service Refusal or
have succumbed to the installation of an RF-Emitting Meter under the threat of Service
Refusal.
Customer resistance efforts up to September 25, 2013
47.
From the summer of 2011 onwards, by way of signage and correspondence, thousands of
Customers complained to BC Hydro about “smart meters” and put BC Hydro on notice of
their refusal to consent to the installation of such meters at their Dwellings (“the
Objecting Customers”).
48.
By locking their old, non-emitting meters in cages, guarding their homes and/or other
self-help mechanisms, some residential Objecting Customers, as of September 25, 2013,
had succeeded in warding off the installation of an RF-Emitting Meter, at which time
they were given the choice to opt out under the Meter Choices Program.
49.
Some Objecting Customers, as of September 25, 2013, had suffered the installation of an
RF-Emitting Meter at their Dwelling and, consequently, were deemed permanently
ineligible to opt out under the Meter Choices Program. These include:
a) Objecting Customers, such as Tim O’Connor, on whose Dwelling an RF-Emitting
meter was forcibly installed, notwithstanding the posting of signage and/or the
implementation of lock-boxes or cages around their old non-emitting meters; and
b) Objecting Customers, such as Nomi Davis, who allowed the replacement of
meters at their Dwellings:
i) after BC Hydro coercively threatened them with Service Refusal;
and/or
ii) on the basis of BC Hydro’s deceptive misinformation as to the
nature of emissions, functionality of the meter or the availability of
an opt-out program.
10
Authority to install and operate an RF-Emitting Meter
50.
The language of the Tariff is ordinarily regulated by the Commission.
51.
The Tariff sets out the terms and conditions by which BC Hydro supplies electricity to its
Customers, including terms regarding the metering of consumption and the requirement
that the Customer provide BC Hydro with Dwelling access for the purpose of repairing or
replacing a meter.
52.
Whereas the functional definition of Smart Meter in the 2010 Clean Energy Act and
Regulation does not necessitate a meter with wireless communicating (RF) functionality,
the 2013 Tariff amendments, as dictated by Direction No. 4, define “smart meter” as a
meter that:
a) meets the requirements set out in section 2 of the Smart Meter Regulation; and
b) has components that transmit data by radio and those components are activated.
53.
As such, for the first time in British Columbia legislative history, the Tariff amendments,
as dictated by Direction No. 4, define “smart meter” as an RF-Emitting Meter.
54.
The Tariff amendments, as dictated by Direction No. 4, go on to:
a) establish the RF-Emitting “smart meter” as “BC Hydro’s standard meter for
measuring Electricity consumption...at a Customer’s Premises”;
b) require that BC Hydro must install a Smart Meter at a Customer’s Premises,
except where the Customer is eligible to opt out; and
c) establish the criteria for determining whether a Customer is eligible to opt out.
55.
The Tariff amendments, as dictated by Direction No. 4, became effective on October 25,
2013, the date by which the Tariff required the Commission to order the amendments into
effect.
56.
Direction No. 4, at section 4, also explicitly directs that:
a) the Commission must not exercise a power in a way that would directly or
indirectly prevent BC Hydro from installing or operating meters, including RFEmitting Meters;
b) the Commission must not require BC Hydro to install a Legacy Meter or Radiooff Meter for:
11
i) Any non-residential Customer; or
ii) Any Customer at whose Dwelling an RF-Emitting Meter was
already installed as of September 25, 2013.
57.
Direction No. 4, in combination with the following provisions, effectively completes a
statutory / administrative regime which authorizes BC Hydro to peremptorily impose,
under the pain of Service Refusal, an RF-Emitting Meter on 96% of its Customers:
a) Clean Energy Act [SBC 2010] CHAPTER 22, section 17 which mandates the
installation and operation of Smart Meters and authorizes BC Hydro to enter any
Dwelling, without the consent of the Customer, for a purpose relating to the
installation or replacement of meters;
b) Smart Meters and Smart Grid Regulation, B.C. Reg. 368/2010 (“the Smart Meter
Regulation”) to the extent that it prescribes or authorizes the installation and
operation of an RF-Emitting Meter;
c) Hydro and Power Authority Act, R.S.B.C. 1996, c. 212, section 20 which
authorizes BC Hydro to enter any Dwelling, without the consent of the Customer,
for any purpose relating to the use, construction, maintenance, safeguarding or
repair of its “plants” which is defined to include its meters;
d) Electricity and Gas Inspection Act, (R.S.C., 1985, c. E-4), section 7 which
authorizes BC Hydro to enter any premises belonging to or occupied by a
purchaser to whom it has undertaken to supply electricity, including its
Customers, for the purpose of installing meters, inter alia; and
e) BC Hydro Electric Tariff (“the Tariff”), sections 4.2 - 4.2.5 which provide inter
alia that BC Hydro may install on the Customer’s Premises any meter or
apparatus which it may need for its use and convenience; section 2.3 which
provides that BC Hydro may refuse to provide service or may discontinue service
to any Customer who refuses to provide meter access or fails to pay a fee,
including those fees which are impugned by this Action; and section 9.5
(Dwelling access).
Authority to charge fees
58.
Direction No. 4 left the Commission with no discretion as to:
a) the definition of “smart meter” as an RF-Emitting Meter;
12
b) the designation of that RF-Emitting Meter as BC Hydro’s standard meter that
must be installed at each Customer’s Dwelling, except where a Customer opts
out;
c) the establishment of the Meter Choices Program;
d) the criteria for determining Customer eligibility to opt out under the Meter
Choices Program;
e) the amount of the Opt-Out Fee to be set on an interim basis; and
f) the amount of the Failed Installation Fee to be set on an interim basis.
59.
Direction No. 4 did leave it to the Commission to make a final determination of the OptOut Fee and Failed Installation Fee. In that regard, Direction No. 4 required the
Commission to ensure that BC Hydro’s rates allow it to collect sufficient revenue in each
fiscal year to enable it to recover from the Customers who participate in the Meter
Choices Program the additional costs attributable to the choice of meter made by those
Customers.
60.
On April 25, 2014, the Commission issued Order G-59-14 approving Opt-Out Fee
charges and Failed Installation charges, as particularized below.
Customer “choice” during Election Period
61.
Direction No. 4 defines those Customers who are eligible to opt out under the Meter
Choices Program, that is, Customers who meet both of the following criteria as of the
coming into force of Direction No. 4 on September 25, 2015:
a) The Customer receives “residential” service (as opposed to general service as at a
commercial premises); and
b) An RF-Emitting Meter has yet to be installed at the Customer’s Dwelling.
(“Eligible Customers”)
62.
Direction No. 4 established a three-month period of September 1 - December 1, 2013
(“the Election Period”) during which each Eligible Customer could elect to either:
a) Accept an RF-Emitting Meter without fee.
b) Accept a Radio-off Meter for a fee to be determined by the Commission;
c) Retain a Legacy Meter for a fee to be determined by the Commission;
13
63.
Within the Election Period, BC Hydro sent correspondence (“the Direct
Communication”) to Eligible Customers offering them the following choices on the basis
of the following estimated fees (“the Estimated Fees”):
a) a standard smart meter (RF-Emitting Meter) at no cost;
b) a Radio-off Meter, for a one-time set-up fee (estimated to be $100) and a monthly
operating fee (estimated to be $20); and
c) keeping an old meter (Legacy Meter) for a monthly fee (estimated to be $35).
64.
By way of the Direct Communication, BC Hydro informed Eligible Customers that:
If you do not confirm your choice by December 1, 2013, BC Hydro will not
exchange the meter at your home and the monthly fee for keeping an old meter
will be added to your BC Hydro bill.
65.
The Direct Communication included a standard form declaration which the Eligible
Customer could execute, indicating choice of meter, and return to BC Hydro.
66.
Within the Election Period, Eligible Customers received the Direct Communication by
way of three separate letters.
67.
In or about mid-November of 2013, two weeks before the expiry of the Election Period,
various Customers received telephone calls from BC Hydro prompting a “choice” to be
exercised by December 1, 2013.
68.
As of September 25, 2013, there were 68,078 Objecting Customers who were considered
by BC Hydro to be Eligible Customers under the Meter Choices Program, that being less
than 4% of all BC Hydro Customers.
69.
Out of those 68,078 Eligible Customers, as of December 16, 2013, after having received
the Direct Communication and associated telephone calls:
a) 48,242 Eligible Customers had acceded to the installation of an RF-Emitting
Meter rather than pay the Estimated Fees;
b) 450 Eligible Customers had elected to accept a Radio-off Meter on the basis of
the Estimated Fees;
c) 2,254 Eligible Customers had elected to keep their Legacy Meters on the basis of
the Estimated Fees;
14
d) 13,112 Eligible Customers, including Sharon Noble and Sharon Schnurr, had
remained reticent during the Election Period and were deemed, in accordance
with Direction No. 4, as having elected to keep their Legacy Meters on the basis
of the Estimated Fees;
e) 4,020 Eligible Customers had responded to BC Hydro with an “invalid option”
and were deemed as having elected to keep their Legacy Meters on the basis of
the Estimated Fees.
70.
By Order G-95-14 dated April 25, 2014, the Commission approved opt-out fees in an
amount less than the Estimated Fees referred to by BC Hydro in its Direct
Communication. In particular, the fees approved by the Commission are:
a) accepting a Radio-off Meter, for a one-time set-up fee of $22.60 (not $100 as
estimated) and a monthly operating fee of $20;
b) keeping an old meter (Legacy Meter) for a monthly fee of $32.40 (not $35 as
estimated); and
c) a Failed Installation Fee of $65.
(“the Approved Fees”)
71.
Whereas 48,242 Eligible Customers had acceded to the installation of an RF-Emitting
Meter on the basis of the Estimated Fees, none of those customers were invited to reexercise their “choice” in relation to the lesser “Approved Fees”.
72.
The Eligible Customers who did not, during the Election Period, accede to the installation
of an RF-Emitting Meter have explicitly elected (or were deemed to have elected) to
retain their Legacy Meters or accept a Radio-off Meter. Each of these customers has
either paid the applicable Approved Fees or, for non-payment of the fee, the Customer
has been coercively threatened with Service Refusal until the Customer either:
a) Succumbed to payment of the fee;
b) Succumbed to the installation of an RF-Emitting Meter rather than pay the fee, as
in the case of Sharon Schnurr; or
c) Succumbed to a Service Refusal.
Impropriety of Direct Communication
73.
Although it occurred 2 to 4 months after the commencement of this action, the Direct
Communication was silent as to the existence of this action or the fact that this action was
15
proposed as a class proceeding on behalf of the class in which the Eligible Customers
stand to be included.
74.
The Direct Communication seeks to obtain the written agreement and surrender of
putative class members to the very conduct that is impugned by way of this action.
RF-Emitting Meters are not necessary to BC Hydro
75.
The installation of an RF-Emitting Meter at the Dwelling of each Customer is not the
only practical and feasible way by which BC Hydro can functionally and feasibly operate
as a utility.
76.
The operation of an RF-Emitting Meter is not necessary to BC Hydro’s ability to read,
repair or replace its meters.
77.
BC Hydro has available to it alternative methods to functionally and feasibly measure
and collect electrical consumption data without the operation of an RF-Emitting Meter.
78.
It is possible for BC Hydro to disable the transmitter of any RF-Emitting Meter so that it
is no longer generating emissions and thereby operates as a Radio-off Meter. BC Hydro
has done this with at least 450 Customers who are considered Eligible Customers under
the Meter Choices Program and who have elected to pay an Opt-Out Fee in exchange for
having a Radio-off Meter.
79.
BC Hydro manually collects electrical consumption data from the Dwellings of
Customers who have Radio-off Meters or Legacy Meters.
80.
BC Hydro has demonstrated, through the Meter Choices Program, that it is capable of
running its utility while offering Customers the opportunity to opt out of having an RFEmitting Meter.
81.
As of December 16, 2013, BC Hydro has operated with at least 19,836 Customers having
a meter other than an RF-Emitting Meter.
82.
More than 46,000 of BC Hydro’s installed RF-Emitting Meters generate emissions but,
due to technical issues, do not succeed in communicating data to BC Hydro. BC Hydro
manually collects electrical consumption data from these meters. BC Hydro refuses to
disable the RF emissions on these meters regardless of the fact that they serve no
function.
83.
Several major electrical utilities in North America allow each of their customers the
choice to be free of an RF-Emitting Meter.
16
BC Hydro uses RF-Emitting Meters as part of its communication infrastructure
84.
At any given Dwelling where an RF-Emitting Meter has been installed, BC Hydro uses
that meter, for BC Hydro’s own operational and commercial benefit, as part of BC
Hydro’s wireless communication infrastructure for transmitting power consumption data
pertaining to a number of other Dwellings in the vicinity.
85.
BC Hydro has access to, and does use, equipment that functions so as to complete BC
Hydro’s communication infrastructure in lieu of the operation of an RF-Emitting Meter at
any given Dwelling.
Biological effects
86.
BC Hydro’s RF-Emitting Meters are the same as those used by Fortis.
87.
Each RF-Emitting Meter emits microwave radiation at a frequency range of 902
Megahertz (MHz) to 928 MHz (“the Emissions”), very close to the frequency range of
cell phones.
88.
The Province of British Columbia has not adopted any standards for the regulation of the
Emissions and no federal licensing requirements are applicable to the Emissions.
89.
Health Canada states that:
a) some of the RF energy emitted by “smart meters” will be absorbed by anyone
who is nearby;
b) the amount of energy absorbed depends largely on how close one’s body is to a
“smart meter”; and
c) RF energy from smart meters results in very low RF exposure levels across the
entire body.
90.
Where an RF-Emitting Meter is operating at a Dwelling, the occupants of that Dwelling
will be exposed to the Emissions.
91.
At any given Dwelling, the Emissions cause biological effects in individuals who are
exposed to them. The extent of those biological effects will increase with:
a) proximity of the individual to the RF-Emitting Meter; and
b) duration of exposure.
17
92.
The biological effects caused by exposure to RF emissions include:
a) increase in heart rate;
b) weight gain;
c) DNA damage;
d) changes in brain chemistry and electrical activity; and
e) cellular stress response, i.e. the biological reaction of cells to a variety of harmful
stimuli (e.g., temperature, toxic ions, pH, alcohol).
93.
RF emissions cause key biological reactions in cells that occur well before the tissue
shows a rise in temperature as a result of the RF exposure.
94.
There is consensus in the scientific community as to the fact that exposure to the RF
emissions causes biological effects. Those biological effects have not been established as
being safe to human health.
Intervals between exposures
95.
The interval between exposures is a relevant factor in the potential cumulative biological
impact of RF emissions.
96.
Each emission from an RF-Emitting Meter consists of a short “burst” of radiation lasting
18 to 125 milliseconds.
97.
The RF-Emitting Meter emits a burst of radiation every 68 seconds, at minimum. The
number of emissions increases during network setup or following a perturbation.
98.
The RF-Emitting Meter emits between 1,268 and 190,000 bursts in a 24-hour period.
99.
BC Hydro does not intend to turn off its RF-Emitting Meters. Their transmitting function
is sustained, at the above-referenced intervals, on a 24-hour basis, every day of each year.
Duration of exposure
100.
Customers with an RF-Emitting Meter operating at their homes will be incessantly
exposed to the Emissions, at the above-referenced intervals, for an indefinite duration.
101.
The duration over which an individual is exposed to RF emissions is a relevant factor in
the potential cumulative biological impact of RF emissions.
18
102.
The biological response to RF emissions is cumulative. The probability of RF emissions
causing a biological effect, and the severity of an effect, increases with the duration of
exposure.
103.
Microwave communications, including cellular telephones, have not been in general use
for a duration sufficient for all potential health effects to have emerged.
104.
The World Health Organization has called for more investigation into the possible
adverse health effects from RF exposure.
105.
Health Canada does not specify any limit on RF exposure duration.
106.
Health Canada states that it continues to monitor the science regarding RF exposure and
will take action if future research establishes that RF energy exposure poses a health risk
to Canadians.
107.
Health Canada states that the signals emitted by “smart meters” are similar to cell phones.
108.
Health Canada encourages parents to limit their children's use of cell phones.
109.
Health Canada provides guidance to concerned cell phone users so that they may take
practical measures to reduce their exposure to RF energy. These measures include
limiting the length of cell phone calls, using hands-free devices, and replacing cell-phone
calls with texting.
110.
BC Hydro’s RF-Emitting Meters will subject Customers to chronic RF exposure, day in
and day out, at potentially close range, over an indefinite duration, at the abovereferenced intervals.
Adverse to Health
111.
There is a real issue of potential harm to the human body arising from exposure to the
Emissions.
112.
Long-term exposure to RF emissions is a concern that carries much weight amongst the
scientific and medical community.
113.
Harmful biological effects from exposure to RF emissions have been reported by
scientific epidemiological studies involving diseases that take years, even decades, to
develop.
114.
The Emissions from BC Hydro’s RF-Emitting Meters are, in material respects,
19
comparable to the emissions that were the subject of the above-referenced
epidemiological studies.
115.
Science hasn’t established that the RF emissions or RF-Emitting Meters are safe. On the
contrary, there is evidence that RF emissions could be a health risk and, furthermore,
there is evidence that RF emissions are a health risk.
116.
Serious and reasonable concerns exist regarding the effects of RF exposure on DNA
expression, cellular processes and homeostasis.
117.
Some of the health concerns arise from the fact that RF emissions, at very low levels of
exposure, can cause changes in the body that are indicative of cellular damage. These
concerns are supported by measured increases in cancer risk that are linked to the
radiation.
118.
Cancer is a group of diseases that has been linked to DNA damage, a widely reported
biological effect of radiation.
119.
In 2011, the World Health Organization's International Agency for Research on Cancer
(IARC) classified RF emissions as “possibly carcinogenic” for humans.
120.
On April 19, 2013, IARC published its reasons for the said classification, including the
fact that positive associations have been observed between RF exposure and cancer.
121.
The April 19, 2013, IARC publication includes the finding that children are particularly
vulnerable to RF emissions.
122.
The American Academy of Pediatrics (AAP), a non-profit professional organization of
60,000 primary care pediatricians, supports the reassessment of radiation standards for
cell phones and other wireless products and the adoption of standards that are protective
of children.
123.
On April 12, 2012, the American Academy of Environmental Medicine (“AAEM”) called
for immediate caution regarding "smart meter" installation due to potentially harmful RF
exposure. The AAEM was founded in 1965, and is an international association of
physicians and other professionals interested in the clinical aspects of humans and their
environment.
Legal basis: SC 6 is not an applicable standard
124.
There is no legislated, regulatory or any other legal standard, applicable in British
Columbia, that regulates exposure to RF-Emitting Meters.
20
125.
Health Canada has promulgated guidelines (“Safety Code 6”) for radiation exposure, but
those guidelines have not been adopted by the Province of British Columbia and do not
otherwise apply as a legal standard in British Columbia.
126.
Safety Code 6 is neither an act of parliament nor is it a regulation. The guidelines
contained in Safety Code 6 are brought into effect through Industry Canada’s emission
licensing procedures, which apply pursuant to Industry Canada’s jurisdiction under the
Radiocommunication Act R.S.C., 1985, c. R-2.
127.
Industry Canada’s emission licensing procedures do not apply to BC Hydro’s RFEmitting Meters for reason that the RF-Emitting Meters are exempt from licensing
requirements under the Radiocommunication Act and the Radiocommunication
Regulations.
128.
In the absence of the application of Industry Canada’s licensing requirement, there is no
opportunity for Safety Code 6 to apply as a regulatory standard.
129.
Further and in the alternative, Safety Code 6 does not regulate duration of exposure to RF
emissions and, as such, does not give any consideration to the health implications of
long-term, chronic exposure.
Personal choice
130.
Some individuals choose to eliminate or minimize their exposure to RF emissions in their
residential environment or workplace.
131.
The choice to be free from the operation of an RF-Emitting Meter at one’s Dwelling is a
fundamental personal choice and an act of environmental self-determination.
Nomi Davis
132.
Davis and her husband are residential customers of BC Hydro with respect to the supply
of power to their home at the above-referenced address.
133.
Davis and her husband choose that their home be free of an RF-Emitting Meter; however,
they have been deprived of that choice as a result of BC Hydro’s installation of an RFEmitting Meter at their home.
134.
On August 22, 2012, at the home of Davis, BC Hydro installed an RF-Emitting Meter
which has since been operating continuously.
135.
Prior to Direction No. 4 coming into force, Davis requested that the RF-Emitting Meter
be removed from her home and BC Hydro did not accede to that request.
21
136.
On September 25, 2013, Direction No. 4 came into force, with the result that Davis and
her husband became ineligible to choose to be free of an RF-Emitting Meter at their
home (for reason that an RF-Emitting Meter had already been installed there).
137.
In reliance on the Impugned Provisions, BC Hydro takes the position that the operation of
an RF-Emitting Meter at the Davis home is compulsory, the only other option being
Service Refusal.
138.
Davis and her husband require BC Hydro’s electrical service, without which they would
be deprived of a necessity to their daily life.
Tim O’Connor
139.
O’Connor is a residential customer of BC Hydro with respect to the supply of power to
his home at the above-referenced address.
140.
O’Connor chooses that his home be free of an RF-Emitting Meter; however, he has been
deprived of that choice as a result of BC Hydro’s installation of an RF-Emitting Meter at
his home.
141.
On or about October 27, 2012, at the home of O’Connor, BC Hydro installed an RFEmitting Meter which has since been operating continuously.
142.
Prior to Direction No. 4 coming into force, O’Connor requested that the RF-Emitting
Meter be removed from his home and BC Hydro did not accede to that request.
143.
On September 25, 2013, Direction No. 4 came into force, with the result that O’Connor
became ineligible to choose to be free of an RF-Emitting Meter at his home (for reason
that an RF-Emitting Meter had already been installed there).
144.
an RF-Emitting Meter at the O’Connor home is compulsory, the only other option being
Service Refusal.
145.
O’Connor requires BC Hydro’s electrical service, without which he would be deprived of
a necessity to his daily life.
Jessica Klein
146.
Klein is a non-residential (“General Service”) customer of BC Hydro with respect to the
supply of power to her commercial farm at the above-referenced address.
22
147.
Klein chooses that her farm be free of an RF-Emitting Meter; however, she is being
deprived of that choice as a result of BC Hydro’s insistence, as of September 16, 2013, on
the installation of an RF-Emitting Meter at Klein’s farm and BC Hydro’s indication of its
intention to proceed unilaterally in that regard. BC Hydro has threatened to charge a
Failed Installation Fee to Klein in the event that its installer cannot install an RF-Emitting
Meter.
148.
On September 25, 2013, Direction No. 4 came into force, with the result that Klein
became ineligible to choose to be free of an RF-Emitting Meter at her farm (for reason
that she is a general service customer).
149.
an RF-Emitting Meter at the Klein farm is compulsory, the only other option being
Service Refusal.
150.
Klein requires BC Hydro’s electrical service, without which she would be deprived of a
necessity to her commercial operation.
Ashif Halani
151.
Robsonstrasse is a non-residential (“General Service”) customer of BC Hydro with
respect to the supply of power to Robsonstrasse Hotel & Suites (“the Hotel”) at the
above-referenced address.
152.
Halani is an officer of Robsonstrasse and the resident manager of Robsonstrasse Hotel &
Suites.
153.
On behalf of himself and Robsonstrasse, Halani chooses that the Hotel be free of an RFEmitting Meter; however, he has been deprived of that choice as a result of BC Hydro’s
installation of an RF-Emitting Meter at the Hotel.
154.
On September 25, 2013, Direction No. 4 came into force, with the result that
Robsonstrasse and Halani became ineligible to choose to be free of an RF-Emitting Meter
at the Hotel (for reason that Robsonstrasse is a general service customer).
155.
On or about September 30, 2014, at the Hotel, BC Hydro installed an RF-Emitting Meter
156.
an RF-Emitting Meter at the Hotel is compulsory, the only other option being Service
Refusal.
157.
Robsonstrasse requires BC Hydro’s electrical service at the Hotel, without which it would
23
be deprived of a necessity to its commercial operation.
Sharon Schnurr
158.
Schnurr is a residential customer of BC Hydro with respect to the supply of power to her
home at the above-referenced address.
159.
Schnurr chooses that her home be free of an RF-Emitting Meter; however, she has been
deprived of that choice as a result of BC Hydro’s installation of an RF-Emitting Meter at
her home.
160.
As of September 25, 2013, BC Hydro had not installed an RF-Emitting Meter at the
home of Schnurr, with the result that Schnurr became eligible to choose to be free of an
RF-Emitting Meter at her home subject to her payment of an Opt-Out Fee.
161.
In reliance on the Impugned Provisions, BC Hydro takes the position that payment of the
Opt-Out Fee is compulsory, the only other options being Service Refusal or the
installation of an RF-Emitting Meter.
162.
Schnurr did not pay the Opt-Out Fee.
163.
In February of 2015, at the home of Schnurr, BC Hydro installed an RF-Emitting Meter
164.
Schnurr requires BC Hydro’s electrical service, without which she would be deprived of a
necessity to her daily life.
Sharon Noble
165.
Noble is a residential customer of BC Hydro with respect to the supply of power to her
home at the above-referenced address.
166.
Noble seeks to freely choose that her home be free of an RF-Emitting Meter; however,
BC Hydro has exacted payment of an Opt-Out Fee as a consequence of her making that
choice.
167.
As of September 25, 2013, BC Hydro had not installed an RF-Emitting Meter at the
home of Noble, with the result that Noble became eligible to choose to be free of an RFEmitting Meter at her home subject to her payment of an Opt-Out Fee.
168.
Noble paid the Opt-Out Fee.
169.
In reliance on the Impugned Provisions, BC Hydro takes the position that payment of the
24
Opt-Out Fee is compulsory, the only other options being Service Refusal or the
170.
Noble requires BC Hydro’s electrical service, without which she would be deprived of a
necessity to her daily life.
Part 2: RELIEF SOUGHT
The Plaintiffs seek the following relief:
1.
Certification of this action pursuant to the Class Proceedings Act, RSBC 1996, chapter
50.
2.
A declaration that, to the extent that the Impugned Provisions authorize BC Hydro to
engage in the Impugned Conduct, both the Impugned Provisions and the Impugned
Conduct unjustifiably infringe s. 7 and s. 8 of the Canadian Charter of Rights and
Freedoms (the “Charter”), Part I of the Constitution Act, 1992, being schedule B to the
Canada Act 1982 (U.K.), 1982, c. 11 (the “Constitution Act”) and are, to that extent, of
no force and effect;
3.
That such a declaration be given retroactive effect dating back to BC Hydro’s first
instance of the Impugned Conduct in the summer of 2011;
4.
An order in the nature of a permanent injunction:
(a) requiring BC Hydro to forthwith cease and desist from the operation of
an RF-Emitting Meter at the Dwelling of any Plaintiff who at any time
requests that there be no operation of an RF-Emitting Meter at his/her
Dwelling;
(b) prohibiting BC Hydro from charging (or threatening to charge) an OptOut Fee to any Customer; and
(c) Prohibiting BC Hydro from engaging (or threatening to engage) in a
Service Refusal;
5.
An declaration as to the invalidity of any agreement provided by any Plaintiff under
the Meter Choices Program to accept an RF-Emitting Meter or pay an Opt-Out Fee;
6.
An order requiring BC Hydro to forthwith promulgate the contents of this Court’s final
order to each of its Customers along with an explicit invitation that any Customer may,
25
at any time, without cost and without Service Refusal, exercise a choice to be free of
an RF-Emitting Meter at his/her Dwelling;
7.
An order of damages in the amount of any Opt-Out Fee and/or Failed Installation Fee
collected by BC Hydro;
8.
Further and in any event, pursuant to section 24(1) of the Charter, an order for
damages in the aggregate for breach of the rights of the Plaintiffs as protected under
the Charter;
9.
Interest pursuant to the Court Order Interest Act [RSBC 1996] ch. 79;
10.
Costs, including special costs and applicable taxes on those costs; and
11.
Such further and other relief as this Honourable Court deems just.
Part 3: LEGAL BASIS
171.
The Plaintiffs rely on:
a) the Charter and, in particular, sections 1, 7, 8 and 24 thereof; and
b) s. 52 of the Constitution Act, 1982.
Charter overview
172.
BC Hydro is an agent of the state and is subject to the application of the Charter.
173.
Each Plaintiff has been deprived of his or her s.7 Charter rights of liberty and security of
the person and/or s. 8 Charter right to be free from intrusion into private space.
174.
Section 7 of the Charter states:
7. Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental
justice.
175.
Section 8 of the Charter states:
8. Everyone has the right to be secure against unreasonable search or seizure.
Charter, Section 7 - Liberty Interest
26
176.
The s. 7 right to liberty is engaged and infringed by state interference with the right of the
individual to a protected sphere of autonomy over fundamental personal choices going to
the core of what it means to enjoy individual dignity and independence, including:
a) the determination of one’s environmental exposures generated from one’s own
home;
b) the choice to take precautionary avoidance measures against long-term, sustained
exposure to an environmental agent, the safety of which remains a matter of
reasonable concern; and
c) the choice to be free of an RF-Emitting Meter situated at one’s own home.
177.
The said state interference occurs by way of the Impugned Provisions and the Impugned
Conduct that is authorized thereunder, both of which deprive the Plaintiffs of the power
and autonomy to make fundamental personal choices about how to live in their own
homes.
Charter, Section 7 - Security interest
178.
Security of the person encompasses a notion of personal autonomy involving control over
one’s bodily integrity free from state interference.
179.
The s. 7 right to security of person is engaged and infringed by state interference with an
individual’s bodily integrity in the sanctity of his/her own home. The said state
interference occurs by the Impugned Provisions which authorize BC Hydro’s imposition
of an RF-emitting device at one’s place of residence, a device that generates sustained
emissions of a possibly harmful environmental agent such that those emissions are
absorbed into the bodies of anyone nearby, with biological effects.
180.
The s. 7 right to security of person is further engaged and infringed by state interference
with the ability of an individual to make and act upon decisions concerning his or her
own home and body, to exercise control over matters fundamental to his or her bodily
integrity, and by the resultant impairment to his or her human dignity and independence.
181.
The s. 7 right to security of person is further engaged and infringed by state interference
with the right to privacy of the body and its health, which is violated by subjecting the
individual to long-term exposure to an environmental agent which has been publicly
identified as a possible human carcinogen. The said interference is exacerbated by the
fact that the exposure is imposed at the individual’s own home where it is inescapable.
182.
The said state interference occurs by way of the Impugned Provisions and the Impugned
27
Conduct that is authorized thereunder, both of which deprive the Plaintiffs of their
security of person.
Territorial privacy under the Charter, Section 8
183.
The legal principles cited above are framed in relation to the individual at home, i.e. the s.
7 liberty / autonomy right to make decisions about one’s exposure to environmental
agents generated from one’s home, as well as the s. 7 security of the person right to be
free from state intrusions with one’s bodily integrity in one’s own home.
184.
In this context, the s. 7 rights to liberty, autonomy and security of person at home have
application in conjunction with s. 8, which protects “territorial privacy” – the right to
privacy at home.
185.
There is no place on earth where persons can have a greater expectation of privacy than
within their home. The right of privacy includes freedom from physical intrusion into a
private space. The home is the place where one has the greatest right to be left alone; to
decide for oneself what bioactive environmental agents are going to be generated from
that locus.
186.
Individual rights under s. 7 and s. 8 of the Charter are engaged and infringed by the
state’s physical intrusion into the private space of the home through the physical
imposition of a biologically engaging environmental agent, the safety of which remains a
matter of reasonable concern. The said infringements occur by way of the Impugned
Conduct as authorized by the Impugned Provisions.
187.
An environmental agent that has been classified by the World Health Organization as a
possible human carcinogen cannot simply be foisted on an individual by generating that
agent from a device situated on/at their own home. Where the state does so, via the
imposition of an RF-Emitting Meter, it violates s. 7 and s. 8 of the Charter.
Biological effects trigger rights
188.
Exposure to the RF emissions causes biological effects. That fact, in itself, triggers a
right of autonomy and free choice, regardless of whether the said biological effects have
been established as being adverse to human health. One has a right against being
physically “touched” by the state in one’s own home.
189.
It is a violation of s. 7 (autonomy and personal security) and s. 8 (territorial privacy) to
forcefully situate an RF-Emitting Device at an individual's home where that device
generates an environmental agent that is known to have effects on human biology, a
fortiori where the safety of such exposure remains a matter of reasonable concern.
28
190.
The safety of the Emissions remains a matter of reasonable concern.
191.
Given that there is evidence that RF Emissions could be a health risk, the individual
choice to be free of an RF-Emitting Meter at home is an intimately personal choice as
well as a reasonable choice.
192.
There exists a reasonable basis for concern about health risk so as to justify a
precautionary approach to avoidance of an RF-Emitting Meter at one’s Dwelling.
193.
There exists a reasonable basis for concern about health risk so as to give rise to a right of
autonomy and free choice as to whether an RF-Emitting Meter is operational from one’s
own Dwelling.
Business Premises
194.
The legal principles cited above are framed in relation to the individual at home, i.e. the s.
7 liberty / autonomy right to make decisions about one’s exposure to environmental
agents generated from one’s home; the s. 7 security of the person right to be free from
state intrusions with one’s bodily integrity in one’s own home; and the s. 8 right to
territorial privacy. Every legal principle pleaded herein, in relation to individual rights at
home, has similar application mutatis mutandis to individual rights at one’s business
premises.
195.
Section 7 protects the liberty / autonomy right to make decisions about one’s exposure to
environmental agents generated from one’s own business premises. Section 7, in
guaranteeing security of the person, also protects the right to be free from state intrusions
with one’s bodily integrity at one’s own business premises. Section 8 protects territorial
privacy in a business premises.
Opt-Out Fees, Failed Installation Fees and Service Refusals
196.
It is a violation of s. 7 and/or s. 8 of the Charter for the state, through the Impugned
Provisions and/or the Impugned Conduct, to effect a Service Refusal or exact payment of
an Opt-Out Fee or a Failed Installation Fee as a consequence of an individual’s refusal to
allow conduct that would otherwise amount to a violation of s. 7 and/or s. 8.
Principles of Fundamental Justice
197.
The Impugned Provisions and the Impugned Conduct deprive the Plaintiffs of their s. 7
rights to liberty and security of the person. The said deprivation occurs in a manner
which is inconsistent with the principles of fundamental justice in the following respects:
a) arbitrariness;
29
b) over-breadth;
c) gross disproportion;
d) lack of parity; and
e) lack of democratic process.
Arbitrariness
198.
The application of the Impugned Provisions and the Impugned Conduct is arbitrary.
199.
By operation of the Impugned Provisions, Eligible Customers may pay to be free of an
RF-Emitting Meter but Ineligible Customers (including those on whom an RF-Emitting
Meter has been forced) must accept an RF-Emitting Meter or else be subject to Service
Refusal and Failed Installation Fees. The law discriminates on an arbitrary basis as to
which Customers are eligible to opt out.
200.
Further, there is an arbitrary distinction as between Eligible Customers who can afford to
pay the Opt-Out Fee (who may be free of an RF-Emitting Meter at their homes) and
Eligible Customers who cannot afford the fee and, at law, are required to accept an RFEmitting Meter or else be subject to Service Refusal and Failed Installation Fees.
201.
The object of the law giving rise to the Meter Choices Program is framed by the
Minister’s statement that “nobody will be forced to take a smart meter”. There is no
rational connection between the object of the law and the limit it imposes on liberty and
security of the person by forcing Ineligible and impecunious Customers to submit to the
Over-breadth
202.
The Impugned Conduct and the Impugned Provisions are overly broad in that they
prohibit more individual rights than is necessary to achieve the stated objective.
203.
BC Hydro’s own conduct demonstrates that it can function as a utility while providing
some of its Customers with the choice to be free of an RF-Emitting Meter. Another
utility, Fortis, provides each of its customers with that choice. The Impugned Conduct
and the Impugned Provisions are overly broad in that they force the installation of an RFEmitting Meter on Customers who are, at law, ineligible to opt out.
204.
With respect to Eligible Customers, the Impugned Provisions and the Impugned Conduct,
by imposing an Opt-Out Fee, effectively deter Customers from autonomously exercising
30
the s. 7 liberty right to choose to be free of an RF-Emitting Meter. The Impugned
Conduct and the Impugned Provisions are overly broad in that they diminish the right of
free choice as protected under the Charter and impose a cost to the individual’s exercise
of his/her right to be personally secure and free from state intrusions with his/her bodily
integrity in his/her own home or premises.
Gross disproportion
205.
The Impugned Conduct and the Impugned Provisions are grossly disproportionate. The
gravity of the Charter infringements of individuals’ autonomy and security at home are
grossly disproportionate to the benefit and legislative purpose of the law. The law
authorizes BC Hydro to coerce its Customers, under the pain of disconnection, to host
components of the utility’s network infrastructure that will be used to relay the
consumption data pertaining to a regional sector of Dwellings. The law gives
disproportional weight to the operational and business interests of the state utility without
regard to the individual’s right to environmental self-determination at the home or
commercial premises.
Lack of parity
206.
The Impugned Provisions are lacking in parity as they authorize BC Hydro to act with
impunity, free from the regulatory oversight of the Commission. Where the Commission
has exercised its jurisdiction with respect to Fortis’ smart meter program, the resulting
opt-out right is available to each customer, exercisable at any time, at a fraction of the
cost of the Opt-Out Fee required of BC Hydro Customers, 96% of whom are deemed
ineligible to opt out at all.
Lack of democratic process
207.
In defining “smart meter” as an RF-Emitting Meter and prescribing such a meter as BC
Hydro’s standard meter that must be installed, Direction No. 4 effectively completes the
statutory / administrative regime which authorizes BC Hydro to engage in the Impugned
Conduct.
208.
Direction No. 4 came into force by order in council, not through an act of the British
Columbia Legislature. As such, the force of law which authorizes the coercive
imposition of RF emissions in the home has been effected by state power in the absence
of any legislative or regulatory scrutiny and without the democratic process by which the
said deprivation of liberties could be the subject of meaningful debate amongst elected
representatives.
Charter, Section 1
31
209.
Section 1 of the Charter reads as follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.
210.
The said infringements of s. 7 and s. 8 cannot be justified pursuant to the criteria of s. 1,
the burden of proof of which lies on BC Hydro.
Plaintiffs’ address for service:
c/o David M. Aaron, Barrister & Solicitor, 208 - 507 Baker Street Nelson, BC V1L 4J2
Tel: 250.551.6840 Fax: 866.685.7376 Email: [email protected]
Place of trial: Vancouver, British Columbia
The address of the registry is: 800 Smithe Street, Vancouver, BC V6Z 2E1
Dated:
_____________________
David M. Aaron
32
Appendix
Part 1: CONCISE SUMMARY OF NATURE OF CLAIM:
A representative claim in tort for intrusion upon seclusion, trespass and nuisance;
Part 2: THIS CLAIM ARISES FROM THE FOLLOWING:
A dispute concerning:
[x] a matter not listed here
Part 3: THIS CLAIM INVOLVES:
[x] a class action
[x] constitutional law
Part 4:
a) Clean Energy Act [SBC 2010] CHAPTER 22
b) Smart Meters and Smart Grid Regulation, B.C. Reg. 368/2010
c) Hydro and Power Authority Act, R.S.B.C. 1996, c. 212
d) Electricity and Gas Inspection Act, (R.S.C., 1985, c. E-4)
e) BC Regulation 203/2013
f) Canadian Charter of Rights and Freedoms [Schedule B to the Constitution Act,
1982]
33
Appendix “B”
This application replaces an application filed by the plaintiffs Nomi Davis and Jessica
Klein on September 19, 2014 and is filed pursuant to the order of Madame Justice Adair
pronounced ____________.
NO. S135590
Vancouver Registry
BETWEEN:
PLAINTIFFS
AND:
DEFENDANT
NOTICE OF APPLICATION
APPLICANTS:
The Plaintiffs, Nomi Davis, Jessica Klein, Tim O'Connor,
Ashif Halani, Sharon Noble and Sharon Schnurr
TO:
The Defendant, British Columbia Hydro and Power
Authority (“BC Hydro”)
AND TO: Its solicitors:
Lawson Lundell LLP
1600 - 925 West Georgia Street
Vancouver, BC V6C 3L2
Attention: Marko Vesely
TAKE NOTICE that an application will be made by the applicants to the Judicial
Management Judge at the courthouse at 800 Smithe Street, in Vancouver at a time to be
determined by the Court for the orders set out in Part 1 below.
Part 1: ORDERS SOUGHT
1. The applicants seek orders pursuant to the Class Proceedings Act, [RSBC 1996]
ch. 50:
a. Certifying this action as a class proceeding;
b. Defining the classes in accordance with the respective criteria set out in
Schedule “A” to this Notice of Application;
c. Appointing each of the Plaintiffs as a representative plaintiff of a
corresponding class as set out in Schedule “A” to this Notice of
Application;
d. Certifying as common issues the issues set out in Schedule “B” to this
Notice of Application;
e. Directing the manner in which class members may opt out of the
proceeding in accordance with the Litigation Plan that is set out in
Schedule “C” to this Notice of Application;
f. Approving the form, timing and method of notice (“the Notice”) to be
given to the respective members of each class to notify them of the
certification of the class proceedings in accordance with the Litigation
Plan that is set out in Schedule “C” to this Notice of Application;
g. Requiring that the Defendant mail the Notice to each of its customers and
pay the cost of the Notice; and
h. Requiring that this class proceeding be conducted in accordance with the
Litigation Plan that is set out in Schedule “C” to this Notice of
Application.
2. Such further and other orders as this Honourable Court may deem just.
2
Part 2: FACTUAL BASIS
Introduction
2. For the purpose of this Notice of Application, the Plaintiffs adopt the facts and
defined terms set out in the Second Notice of Civil Claim.
3. This action involves a common assertion on behalf of members of each class of
the s. 7 and s. 8 Charter rights as articulated in the Second Notice of Civil Claim.
4. Broadly stated, the issues in these proceedings are whether the Impugned
Conduct, as authorized by the Impugned Provisions and as experienced by each
respective class, amounts to an unjustifiable infringement of s. 7 and/or s. 8 of the
Charter.
The pleadings disclose a cause of action
5. The Plaintiffs’ Charter challenge is based inter alia on the following assertions of
fact:
a) The Emissions cause biological effects in individuals who are exposed to
them;
b) There is a real issue of potential harm to the human body arising from
exposure to the Emissions;
c) The safety of the Emissions remains a matter of reasonable concern; and
d) The choice to be free from the operation of an RF-Emitting Meter at one’s
Dwelling is a fundamental personal choice.
(“the Key Facts”)
6. The Impugned Conduct and the Impugned Provisions, in the context of the Key
Facts, amount to:
a) deprivation of the s. 7 liberty interest as articulated at paragraphs 176 – 177 of
the Second Notice of Civil Claim;
b) deprivation of the s. 7 security interest as articulated at paragraphs 178 – 182
of the Second Notice of Civil Claim; and
c) infringement of the s. 8 right to territorial privacy as articulated at paragraphs
183 – 187 of the Second Notice of Civil Claim.
3
7. The legal basis articulated at paragraphs 188 – 196 of the Second Notice of Civil
Claim is germane to the causes of action under each of s. 7 liberty, s. 7 security
and s. 8 territorial privacy.
8. In various respects as articulated at paragraph 197 of the Second Notice of Civil
Claim, the above-referenced s.7 deprivations are alleged to have occurred in a
manner that is inconsistent with the principles of fundamental justice. These
allegations are supported by the factual assertions, as set out in the Second Notice
of Civil Claim, particularly:
a) Arbitrariness: the facts setting out the manner in which the Impugned
Provisions operate to distinguish who may and may not opt out (paragraphs 38
– 74 of the Second Notice of Civil Claim);
b) Over-breadth: the factual assertion that the Impugned Conduct is not
necessary to BC Hydro’s functionality (paragraphs 75 – 83 of the Second
Notice of Civil Claim);
c) Gross disproportion: the facts setting out how the law authorizes BC Hydro to
coerce its Customers, under the pain of disconnection, to host components of
the utility’s network infrastructure that will be used to relay the consumption
data pertaining to a regional sector of Dwellings (paragraphs 38 - 74 of the
Second Notice of Civil Claim);
d) Lack of parity: the facts setting out how other utilities in BC Hydro are
subject to regulatory scrutiny with respect to their RF-Emitting Meter
programs while BC Hydro is not (paragraphs 23 – 72 of the Second Notice of
Civil Claim); and
e) Lack of democratic process: the facts setting out how the law authorizing the
Impugned Conduct came into effect in the absence of any legislative process
(paragraphs 38 – 72 of the Second Notice of Civil Claim).
Identifiable class
9. Pursuant to the s. 7 right of the individual to a protected sphere of autonomy over
fundamental personal choices, inter alia, this action, if certified, will seek relief
on behalf of any BC Hydro Customer who at any time requests that there be no
operation of an RF-Emitting Meter at his/her Dwelling. Furthermore, the action
seeks protection against both the imposition of an RF-Emitting Meter as well as
the imposition of Service Refusal, Opt-out Fees or Failed Installation Fees in lieu
of the RF-Emitting Meter.
10. Every BC Hydro Customer is subject to either the imposition of an RF-Emitting
Meter or Service Refusal, Opt-out Fees or Failed Installation Fees in lieu of the
4
RF-Emitting Meter. Direction No. 4 determined to which of these scenarios any
given Customer is subject.
11. A class proceeding is proposed on behalf of all of BC Hydro’s 1.8 million
Customers divided into three classes:
CLASS A:
All residential customers of BC Hydro who are Ineligible Customers under the
Meter Choices Program and therefore required to accept the operation of an RFEmitting Meter (“smart meter”) at their respective homes.
CLASS B:
Non-residential (“general service”) customers of BC Hydro who are Ineligible
Customers under the Meter Choices Program and therefore required to accept the
operation of an RF-Emitting Meter (“smart meter”) at their respective premises.
CLASS C:
All customers of BC Hydro who are Eligible Customers under the Meter Choices
Program.
12. Each class is primarily defined by customer groupings effected by Direction No.
4, which sets out which Customers may or may not opt out from having an RFEmitting Meter.
13. Any particular person's claim to membership in any class can be determinable by
stated, objective criteria, as established by Direction No. 4.
14. Of BC Hydro’s 1.8 million customers, approximately 96% are Ineligible
Customers (in Classes A and B) while the remaining 4% are Eligible Customers
(in Class C).
15. Each proposed class consists of two or more persons as required by the Act.
Common Issues
16. The claims of class members raise issues, as set out under Schedule “B” to this
Notice of Application, that are common to all members of each class respectively.
In any given class, the class members' claims share a substantial common
ingredient to justify the class action.
17. In any given class, the common issues are not dependent upon individual findings
of fact that have to be made with respect to each individual claimant.
5
18. The common issues predominate over issues affecting only individual class
members.
19. In any given class, the each proposed common issue is a substantial ingredient of
each class member's claim and the resolution of that issue is necessary to the
resolution of that claim.
20. In any given class, the answer to a question raised by a common issue for the
representative is capable of extrapolation, in the same manner, to each member of
the class.
21. There is a reasonable prospect that a resolution of the common issues would
significantly advance the action. If the common issues were to be resolved, they
would be determinative of whether the Impugned Provisions may operate to
authorize BC Hydro to engage in the Impugned Conduct.
22. If the answers to the common issues relating to any given class are favourable to
the class members, then those answers will significantly advance the claims of all
members within that class. Success for one would be success for all.
23. In contrast, if the answers to the common issues relating to any given class are
unfavourable to the class members, those answers could defeat all or some of the
claims of all members within that class.
24. Determining the common issues will also avoid the duplication of fact-finding
that would arise if class members were to sue individually.
25. Determining the common issues would be efficient in a class proceeding context.
Preferable procedure
26. It would be impractical and prohibitive for individual class members to bring
single actions in the face of this dispute, the resolution of which is likely to
involve technical issues of fact and law, experts and consideration of a potentially
voluminous body of evidence. The form of the action favours its determination
by way of class action.
27. It is not the case that a significant number of the members of any class have a
valid interest in individually controlling the prosecution of separate actions.
28. The class proceeding would not involve claims that are or have been the subject
of any other proceedings.
29. There are no other practical or efficient means of resolving the claims. The
Impugned Conduct has not been subject to the regulatory oversight of the BC
6
Utilities Commission, which imposed a universally available opt-out program on
Fortis.
30. The remedial jurisdiction of the British Columbia Human Rights Tribunal under
the Human Rights Code is limited to claims of discrimination arising out of a
disability. The instant action is not brought on behalf of disabled persons, nor is it
premised on the existence of a disability. Rather, on behalf of any customer,
regardless of disability, it advances a cause of action based inter alia on the s. 7
right to autonomy over fundamental personal choices. That cause of action does
not require a disability; it is premised largely on the four “Key Facts” articulated
above.
31. On September 14, 2011, Citizens for Safe Technology Society and Una St. Clair
filed a complaint with the B.C. Human Rights Tribunal against BC Hydro (“the
Human Rights Complaint”) against the Impugned Conduct.
32. The Human Rights Complaint was brought as a representative complaint.
33. By its decisions dated August 28, 2012, and September 12, 2013, the Human
Rights Tribunal determined that the Human Rights Complaint could proceed as a
representative complaint on behalf of a class defined as “those persons allegedly
diagnosed or identified by a medical practitioner as having EHS
[electrohypersensitivity] who have been advised to avoid wireless technology”.
34. On September 18, 2014, the Human Rights Tribunal granted BC Hydro’s
application for early dismissal of the Human Rights Complaint on the basis of the
Tribunal’s finding that there was no reasonable prospect that the Complainants
would be able to establish a causal link between smart meter emissions and EHS.
In its reasons for that decision the Human Rights Tribunal stated, at paragraphs
141 – 143:
a) accepted that there is a real issue of potential harm to the human body
arising from exposure to EMF frequencies;
b) lauded the BCUC and B.C. Hydro for providing the opt out options that
they do; and
c) found that the issue (of potential harm to the human body arising from
exposure to EMF frequencies) is clearly one of concern to the public.
Representative plaintiffs
35. Each representative plaintiff has no conflict of interest with his/her respective
class and will fairly represent its interests.
7
36. Direction No. 4 has the effect of determining the different ways in which
individual Customers may suffer under the Impugned Conduct.
37. Class A includes all residential customers of BC Hydro who are Ineligible
operation of an RF-Emitting Meter (“smart meter”) at their respective homes.
Davis and O’Connor are each Ineligible Customers for reason that an RFEmitting Meter had already been installed as of the date on which Direction No. 4
came into force, that being September 25, 2013. The manner in which an RFEmitting Meter came to be installed prior to September 25, 2013, is not material
to the determination of the common issues.
38. Class B includes all non-residential (“general service”) customers of BC Hydro
who are Ineligible Customers under the Meter Choices Program and therefore
required to accept the operation of an RF-Emitting Meter (“smart meter”) at their
respective homes. Klein and Halani are each Ineligible Customers for reason that
they are non-residential (“general service”) customers. While Halani has suffered
the installation of an RF-Emitting Meter on that basis, Klein remains under BC
Hydro’s threat that the said installation will occur unilaterally.
39. Class C includes all residential customers of BC Hydro who are Eligible
Customers under the Meter Choices Program. As an Eligible Customer, Noble
has succumbed to the payment of an Opt-Out Fee while Schnurr has not paid the
Opt-Out Fee and, consequentially, has been subjected to the installation of an RFEmitting Meter at her home.
Litigation plan
40. The representative plaintiffs have a litigation plan.
41. BC Hydro already has in place an established accounting relationship with each
individual class member as well as an established network of postal
communication with each class member.
Part 3: LEGAL BASIS
Proposed Certification
42. The Plaintiffs propose that the Court certify the classes set out in Schedule “A”
to this Notice of Application.
43. The proposed common issues are set out in Schedule “B” to this Notice of
Application.
Criteria for Certification
8
44. The Plaintiffs meet the requirements for class certification under section 4 of the
Class Proceedings Act, [RSBC 1996] ch. 50. In particular:
a) the pleadings disclose a cause of action;
b) there is an identifiable class of 2 or more persons;
c) the claims of the class members raise common issues, whether or not
those common issues predominate over issues affecting only individual
members;
d) a class proceeding would be the preferable procedure for the fair and
efficient resolution of the common issues; and
e) there is a representative plaintiff who
i) would fairly and adequately represent the interests of the class,
ii) has produced a plan for the proceeding that sets out a workable
method of advancing the proceeding on behalf of the class and of
notifying class members of the proceeding, and
iii) does not have, on the common issues, an interest that is in conflict
with the interests of other class members.
45. As the statutory language is mandatory, the court must certify the action if the
requirements under s. 4(1) are met.
[See: Harrington v. Dow Corning Corp. [2000] B.C.J. No. 2237 (B.C.C.A.); and
Rumley v. British Columbia [1999] B.C.J. No. 689 (B.C.C.A.).]
Standard of proof
46. The standard of proof on an application for certification is that the plaintiff must
show "some basis in fact" that each of the requirements of certification is met,
other than the requirement of pleading a cause of action. However, the
certification stage is not meant to test the merits of the action. While evidence is
required, it is not necessary for the plaintiff to prove each requirement on a
balance of probabilities: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013
SCC 57 [Pro-Sys] at paras. 99-102.
47. The certification judge is required to consider the evidence and serve a screening
role, but is not required to engage in an "extensive assessment of the complexities
and challenges that a plaintiff may face in establishing its case at trial": Pro-Sys at
paras. 102-105.
9
The pleadings disclose a cause of action
48. Whether or not a cause of action is properly pleaded is judged on the pleadings in
the same way as a motion to strike. The test is, assuming the facts as pleaded are
true, whether it is plain and obvious that the plaintiff's claim cannot succeed: ProSys at para. 63.
49. The Plaintiffs’ cause of action in the present case is based on the allegation that,
to the extent that the Impugned Provisions authorize BC Hydro to engage in the
Impugned Conduct, both the Impugned Provisions and the Impugned Conduct
unjustifiably infringe s. 7 and s. 8 of the Canadian Charter of Rights and
Freedoms (the “Charter”).
50. The factual and legal basis for the Plaintiffs’ cause of action is set out in detail in
the Second Notice of Civil Claim, as are the remedies sought by the Plaintiffs.
51. It is not plain and obvious that the Plaintiffs cannot succeed with respect to their
claims under s. 7 and s. 8 of the Charter.
Identifiable Class
52. The class can be identified by objective criteria without reference to the merits of
the case.
Common issues
53. The requirement that the class proceeding involves issues common to members of
the class is concerned with procedural efficiencies and avoidance of duplication
of judicial fact-finding that can be gained by a class action as opposed to multiple
individual actions involving similar issues.
54. The commonality question should be approached purposively.
55. The common issue criterion is not a high legal hurdle, and an issue can be a
common issue even if it makes up a very limited aspect of the liability question
and even though many individual issues remain to be decided after its resolution:
Cloud v. Canada (Attorney General), (2004), 73 O.R. (3d) 401 at para. 53 (C.A.),
leave to appeal ref'd [2005] S.C.C.A. No. 50.
56. A common issue need not dispose of the litigation; it is sufficient if it is an issue
of fact or law common to all claims and its resolution has a reasonable prospect of
advancing the litigation for (or against) the class: Harrington v. Dow Corning
Corp., [1996] B.C.J. No. 734, 48 C.P.C. (3d) 28 (S.C.), aff'd 2000 BCCA 605,,
[2000] B.C.J. No. 2237, leave to appeal to S.C.C. ref'd [2001] S.C.C.A. No. 21;
Charlton [2015] B.C.J. No. 88 2015 BCCA 26 at para. 111.
10
57. An issue will be "common" only where its resolution is necessary to the
resolution of each class member's claim.
58. It is not essential that the class members be identically situated vis-a-vis the
opposing party.
59. It not necessary that common issues predominate over non-common issues.
However, the class members' claims must share a substantial common ingredient
to justify a class action. The court will examine the significance of the common
issues in relation to individual issues.
60. Success for one class member must mean success for all. All members of the class
must benefit from the successful prosecution of the action, although not
necessarily to the same extent.
61. The claims of class members raise issues, as set out under Schedule “B” to this
Notice of Application, that meet all of the above-referenced criteria for
commonality in relation to each class respectively.
62. There is a rational connection as between the criteria for class membership (which
are determinative of the manner in which the Customer has been treated under
Direction No. 4), the claims advanced on behalf of the respective class (that such
treatment infringes their Charter rights), the issues arising out of those claims
(whether that treatment violates the Charter) and the relief sought on behalf of the
class (relief from that treatment).
Preferable Procedure
63. Section 4(2) of the Act states:
(2) In determining whether a class proceeding would be the preferable procedure
for the fair and efficient resolution of the common issues, the court must consider
all relevant matters including the following:
a) whether questions of fact or law common to the members of the class
predominate over any questions affecting only individual members;
b) whether a significant number of the members of the class have a valid
interest in individually controlling the prosecution of separate actions;
c) whether the class proceeding would involve claims that are or have
been the subject of any other proceedings;
d) whether other means of resolving the claims are less practical or less
efficient;
11
e) whether the administration of the class proceeding would create greater
difficulties than those likely to be experienced if relief were sought by
other means.
64. There are too many individual claimants to litigate each claimant’s case
separately.
65. The amount that each claimant is entitled to recover is too small to enable each
claimant to litigate his or her case separately.
66. The litigation of the common issues is likely to require expert evidence with
respect to the Key Facts.
67. It is not economically feasible to litigate each claimant’s case separately.
68. The form of the action is such that it can properly proceed as a class action, which
is the preferable procedure for the fair and efficient resolution of the common
issues.
69. It would be practical to effect communication with class members.
70. It would be practical to make the requested relief available to the individual class
members.
Proposed representative plaintiffs are appropriate
71. The representative plaintiffs would fairly and adequately represent the interests of
each class respectively.
72. On the common issues, no representative plaintiff has an interest that is in conflict
with the interests of other members of his/her respective class.
73. The representative plaintiffs have produced a plan for the litigation that sets out a
workable method for advancing the proceeding.
Part 4: MATERIAL TO BE RELIED ON
At the hearing of the application, the applicants will rely on the following affidavits and
other documents:
1.
2.
3.
4.
5.
6.
the Affidavit of Delia Maria Aaron #1 sworn November 18, 2013;
the Affidavit of Delia Maria Aaron #2 sworn January 6, 2014;
the Affidavit of Delia Maria Aaron #3 sworn September 13, 2014;
the Affidavit of Nomi Davis sworn September 8, 2014;
the Affidavit of Jessica Klein sworn September 8, 2014;
the Affidavit of Marcel Gamache sworn September 10, 2014;
12
7. the Affidavit of Margaret Sylvester sworn September 11, 2014;
8. the Affidavit of Norman Herbert Moffat sworn September 12, 2014;
9. the Affidavit of Dharmesh Natha sworn September 12, 2014;
10. the Affidavits of Ashif Halani sworn September 16, 2014; and November
27, 2014;
11. the Affidavit of Una St. Clair sworn September 16, 2014;
12. the Affidavit of Tim O’Connor sworn September 16, 2014;
13. the Affidavit of Jurgen Goering sworn September 16,, 2014;
14. the Affidavit of Myrle Testart sworn September 16, 2014;
15. the Affidavit of Sharon Noble sworn September 17, 2014;
16. the 2nd Affidavit of Sharon Noble to be filed;
17. the Affidavit of Sharon Schnurr to be filed;
18. the pleadings and proceedings filed herein and such further and other
material as requested by counsel and allowed by this Honourable Court.
The Court has ordered that this application be scheduled for five days.
TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to
respond to this notice of application, you must, by a date to be determined by the Court:
(a) file an application response in Form 33,
(b) file the original of every affidavit, and of every other document, that
(i) you intend to refer to at the hearing of this application, and
(ii) has not already been filed in the proceeding, and
(c) serve on the applicant 2 copies of the following, and on every other party of
record one copy of the following:
(i) a copy of the filed application response;
(ii) a copy of each of the filed affidavits and other documents that you
intend to refer to at the hearing of this application and that has not already
been served on that person;
(iii) if this application is brought under Rule 9-7, any notice that you are
required to give under Rule 9-7 (9).
Dated:
_______________________
David M. Aaron
This Notice of Application was filed by David M. Aaron, Barrister & Solicitor, whose
place of business and address for service is 208 - 507 Baker Street, Nelson, BC V1L 4J2
Tel: 250.551.6840 Fax: 866.685.7376.
13
SCHEDULE “A”
CLASS DESCRIPTIONS
CLASS A:
All residential customers of BC Hydro who are Ineligible Customers under the Meter
Choices Program and therefore required to accept the operation of an RF-Emitting Meter
(“smart meter”) at their respective homes.
CLASS B:
Non-residential (“general service”) customers of BC Hydro who are Ineligible Customers
under the Meter Choices Program and therefore required to accept the operation of an
RF-Emitting Meter (“smart meter”) at their respective premises.
CLASS C:
Program.
14
SCHEDULE “B”
COMMON ISSUES
A. Issues of fact common to all classes
1. Do the Emissions cause biological effects in individuals who are exposed to
them?
2. Is there a real issue of potential harm to the human body arising from exposure to
the Emissions?
3. Does the safety of the Emissions remain a matter of reasonable concern?
4. Is the choice to be free from the operation of an RF-Emitting Meter at one’s
Dwelling a fundamental personal choice?
B. Issues of law common to Class A: Ineligible residential customers represented by
Davis/O’Connor
5. Are either of s. 7 or s. 8 of the Charter unjustifiably infringed by BC Hydro’s
operation of an RF-Emitting Device at the home of a Customer who requests that
there be no operation of an RF-Emitting Meter at his/her home? Are either of s. 7
or s. 8 of the Charter unjustifiably infringed by the law that authorizes BC
Hydro’s conduct in that regard?
C. Issues of law common to Class B: Ineligible general service customers
represented by Klein/Halani
6. Are either of s. 7 or s. 8 of the Charter unjustifiably infringed by BC Hydro’s
operation of an RF-Emitting Device at the premises of a “general service”
Customer who requests that there be no operation of an RF-Emitting Meter at
his/her premises? Are either of s. 7 or s. 8 of the Charter unjustifiably infringed
by the law that authorizes BC Hydro’s conduct in that regard?
D. Issues of law common to Class C: Eligible customers represented by
Schnurr/Noble
7. Are either of s. 7 or s. 8 of the Charter unjustifiably infringed by BC Hydro
exacting payment from a Customer of an Opt-Out Fee? Are either of s. 7 or s. 8
of the Charter unjustifiably infringed by the law that authorizes BC Hydro’s
conduct in that regard? Should the Court order damages in the amount of any
Opt-out Fee collected by BC Hydro?
15
8. Where a Customer has agreed (or been deemed to agree) to accept an RFEmitting Meter or pay an Opt-Out Fee under the Meter Choices Program, is that
agreement valid? Are either of s. 7 or s. 8 of the Charter unjustifiably infringed
by the law that holds a Customer to any such agreement?
E. Issues of law common to two or more classes
threatening or effecting a Service Refusal? Are either of s. 7 or s. 8 of the
Charter unjustifiably infringed by the law that authorizes BC Hydro’s conduct in
that regard?
exacting payment from a Customer of a Failed Installation Fee? Are either of s. 7
or s. 8 of the Charter unjustifiably infringed by the law that authorizes BC
Hydro’s conduct in that regard? Should the Court order damages in the amount of
any Failed Installation Fee collected by BC Hydro?
11. Should any declaration of a Charter infringement be given retroactive effect?
12. Should the Court issue, pursuant to section 24(1) of the Charter, an order for
damages in the aggregate for breach of Charter rights?
13. Should the Court order special costs against BC Hydro, pursuant to section
37(2)(c) of the Class Proceedings Act, [RSBC 1996]?
16
SCHEDULE “C”
BETWEEN:
PLAINTIFFS
AND:
DEFENDANT
PLAINTIFFS’ PROPOSED LITIGATION PLAN
Introduction
1. After disposition of the certification motion, assuming success for the Plaintiffs,
the Plaintiffs will ask the court to set a schedule for the remaining steps in the
action. Subject to input from the Defendant, and directions from this Honourable
Court, the Plaintiffs propose the following litigation plan.
Notice and opt-out
2. The Plaintiffs propose that notice to the respective classes be in the form
appended as Schedule “A” to this Litigation Plan (“the Notice”).
3. The Plaintiffs will ask the Court to order that the Notice be mailed by the
Defendant to each of its customers and that the costs of the Notice be paid by the
Defendant.
4. The Plaintiffs propose that the Notice be mailed within 30 days of the entry of the
certification order.
17
5. The Plaintiffs propose that the opt-out date be set for 90 days after the date that
the Notice is mailed.
6. The Plaintiffs propose the following opt-out procedure:
a. a person may opt out of the class proceeding by sending a written election
to opt out to a person designated by the Court before a date fixed by the
Court; and
b. no class member may opt out of the class proceeding after the expiration
of the opt-out period.
c. The Plaintiffs will ask the Court to appoint a person to receive the opt-out
notices and report to the Court the number of persons who opted out by
the date fixed by the Court.
Litigation relating to the common issues
7. The Plaintiffs anticipate that the litigation of the common issues will follow a
fairly traditional pre-trial and trial plan and propose that a case management
conference be arranged within 30 days of the certification order to address the
following issues:
a. pleadings - confirm that pleadings are closed, that all contemplated
amendments have been concluded and that all parties have been joined;
b. identification and simplification of issues - ensure that liability and
damages issues have been simplified and narrowed as much as possible;
c. discovery - the Plaintiffs propose that lists of documents be exchanged on
the common issues within 60 days of the case management conference and
that the examinations for discovery on the common issues be scheduled
within 90 days after lists of documents have been exchanged.
d. expert evidence - the Plaintiffs anticipate the exchange of detailed expert
reports. All expert reports will be exchanged within 90 days of the
completion of examinations for discovery, unless the Court orders
otherwise.
e. trial date and length of trial - the Plaintiffs propose that the trial of the
common issues be set for a period of three weeks and commence 90 days
after the last expert reports have been served. The Plaintiffs anticipate that
the trial date can be set at the first post-certification case management
conference.
18
Case Management and Interlocutory Applications
8.
Subject to the availability of the Court and counsel, the Plaintiffs propose
meetings before the case management judge every 90 days unless the parties
agree or the Court directs that such hearings are not required or are required on a
more frequent basis.
9.
Unless a particular application is a matter of urgency, all interlocutory
applications will be heard at these regular case management hearings.
10.
Any party bringing an interlocutory application will file application material at
least 14 days prior to the case management conference. The respondent(s) will file
any responding material 7 days prior to the conference. The applicant(s) will file
any written argument 5 days prior to the hearing. The respondent(s) will file any
written argument 3 days prior to the hearing. The Court will determine whether
any additional oral argument is required and direct the parties accordingly.
Judgment
11. The Plaintiffs will seek judgment on the common issues at the end of the common
issues trial.
Individual Issues Determination
12. If the Defendant is wholly successful on the common issues, the case will be at an
end and no individual issues determination will be required.
13. If the Plaintiffs are successful on the common issues, in whole or in part, an
orderly process for the resolution of any remaining issues may be required.
Within 60 days of the issuance of a judgment for the Plaintiffs on any of the
common issues, the parties will convene for argument under s. 27 of the Class
Proceedings Act to determine the appropriate course for any outstanding issues.
19
SCHEDULE “A’ TO PLAINTIFFS’ PROPOSED LITIGATION PLAN
NOTICE TO BC HYDRO CUSTOMERS
CERTIFICATION OF BRITISH COLUMBIA CLASS ACTION
REGARDING “SMART METERS”
Read this notice carefully as it may affect your rights.
THE CLASS ACTION
This notice is directed to all BC Hydro customers who meet the following criteria set out
below.
A class action is pending in the British Columbia Supreme Court seeking relief against
the following conduct by BC Hydro:
a) Operation of a radiofrequency-emitting smart meter (“an RF-Emitting Meter”) at
a home or business premises (“Dwelling”) of a customer who at any time requests
that there be no operation of an RF-Emitting Meter at his/her Dwelling;
b) Threatening or effecting a Service Refusal, that is, a refusal by BC Hydro to
initiate or continue the supply of electrical service to a Dwelling for reason of a
customer’s refusal to:
i. Allow the installation of an RF-Emitting Meter at a Dwelling;
ii. Pay an Opt-Out Fee, that being a fee that BC Hydro charges to a
Customer in exchange for the utility abiding by the Customer’s
choice to be free from the installation / operation of an RFEmitting Meter at a particular Dwelling; or
iii. Pay a Failed Installation Fee, that being a fee related to BC
Hydro’s attendance at a Dwelling to install an RF-Emitting Meter
where installation is not carried out because of either an objection
made by a Customer or an obstruction.
c) Exacting payment from a Customer of an Opt-Out Fee in exchange for BC Hydro
abiding by the Customer’s choice to be free from the installation / operation of an
RF-Emitting Meter at a particular Dwelling.
d) Exacting payment from a Customer of a Failed Installation Fee related to BC
Hydro’s attendance at a Dwelling to install an RF-Emitting Meter where
installation is not carried out because of either an objection made by a Customer
or an obstruction.
20
THE CERTIFICATION ORDER
Madam Justice Adair certified the above-referenced action (“the Class Action”) as a class
proceeding and appointed representative plaintiffs of the classes defined as follows:
CLASS A:
All residential customers of BC Hydro who are Ineligible Customers under the
Meter Choices Program and therefore required to accept the operation of an RFEmitting Meter (“smart meter”) at their respective homes.
CLASS B:
Non-residential (“general service”) customers of BC Hydro who are Ineligible
operation of an RF-Emitting Meter (“smart meter”) at their respective premises.
CLASS C:
Program.
WHAT TO DO IF YOU MEET THE CLASS DEFINITION
If you meet the definition of a Residential Class member, your rights will be affected by
this proceeding.
If you do not wish to participate in the Class Action, you must take action to exclude
yourself by opting out of the Class Action. If you do not opt out of the Class Action, you
will be automatically included in the Class Action and bound by the terms of any
judgment or settlement in the Class Action whether favourable or not. You will be
entitled to share in the amount of any award or settlement recovered in the Class Action.
If you wish to opt out of the Class Action you must do so on or before____ by sending a
written election signed by you as the Class member stating that you are opting out of the
Class Action to: David M. Aaron, Barrister & Solicitor, by mail at Box 479, Nelson, BC,
V1L 5R3 or by email at [email protected] or by fax at 1-866-685-7376.
No Class member will be permitted to opt out of the Class Action after _____.
If you opt out by the deadline, it means that you can bring your own lawsuit and will not
be bound by the result in this lawsuit. It also means that you cannot collect any money
that might ultimately be paid to Class members as a result of this lawsuit.
21
FEES
Class counsel has entered into an agreement with the representative plaintiffs with respect
to legal fees and disbursements. The agreement must be approved by the Court to be
effective. Members of the Class will not be personally liable to pay Class counsel any
legal fees or disbursements.
ADDITIONAL INFORMATION
Any questions about the matters in this notice should NOT be directed to the Court
because its administrative structure is not designed to address this type of inquiry. The
certification order and other information may be obtained by visiting the website at
www.davisclassaction.ca
Questions for counsel should be directed by mail, email or fax to:
David M. Aaron, Barrister & Solicitor
Box 479, Nelson, BC, V1L 5R3
[email protected] Fax: 1-866-685-7376
INTERPRETATION
This notice is a summary of the terms of the certification order. If there is any conflict
between the provisions of this notice and the terms of the certification order, the
certification order shall prevail. The certification order may be reviewed at the website
www.davisclassaction.ca
22
To be completed by the court only:
Order made
[]
in the terms requested in paragraphs ...................... of Part 1 of this notice of
application
[]
with the following variations and additional terms:
...............................................................................................................
...............................................................................................................
...............................................................................................................
Date: .......[dd/mmm/yyyy]........
....................................................
Signature of [ ] Judge [ ] Master
23
Appendix
THIS APPLICATION INVOLVES THE FOLLOWING:
[Check the box(es) below for the application type(s) included in this application.]
[]
discovery: comply with demand for documents
[]
discovery: production of additional documents
[]
other matters concerning document discovery
[]
extend oral discovery
[]
other matter concerning oral discovery
[]
amend pleadings
[]
add/change parties
[]
summary judgment
[]
summary trial
[]
service
[]
mediation
[]
adjournments
[x]
proceedings at trial
[]
case plan orders: amend
[]
case plan orders: other
[]
experts
24

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