Patrick Wruck Suite 410, 900 Howe Street Commission Secretary Vancouver, BC Canada V6Z 2N3 P: 604.660.4700 Commission.Secretary@bcuc.com TF: 1.800.663.1385 bcuc.com F: 604.660.1102 March 10, 2021 Sent via email Letter L-6-21 Re: Customer Choice Program – Dispute #38963 (Acct )/Access Gas Services Inc. Dear : The British Columbia Utilities Commission (BCUC) has received a Customer Choice dispute from you, on behalf of owner of (Customer). The BCUC has considered the evidence relating to this matter and outlines its findings below.
Nature of the dispute The Customer filed the dispute on the basis of deceptive marketing, citing a misrepresentation of identity by the gas marketer’s sales representative.
Evidence and other considerations The Agreement, dated February 15, 2018, came into effect April 1, 2018. The Customer filed the dispute on October 16, 2020.
According to you, “there are multiple valid reasons why this contract with Access Gas must be terminated. The contract was signed under false pretenses, it should not be legally valid because Access Gas gave my father false information. This led him to believe the rates were cheaper and it was a government plan, which is the only reason he signed.”
You state that the Access Gas sales representative told your father that he was a government agent and that FortisBC [Gas Commodity] rates were going up soon. You also allege that the sales representative did not explain the terms of the Agreement and that he told that FortisBC would call within the week and ask a variety of questions and that he must answer yes to all of them in order to lock in the contract and save money.
Access Gas Services Inc., the Gas Marketer, states that it attempted to contact you via email to discuss your concerns regarding misrepresentations, but that as of October 21, 2020, Access had not received a response from you.
Access Gas considers the agreement valid and binding.
File 64372 | Customer Choice Program – GEM Dispute 38963 – Access Gas
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Letter L-6-21 During the Third-Party Verification (TPV) call, which was recorded and provided as evidence in the dispute, confirmed that he:
• is owner of ; • has authority to bind agreements for his organization; • has been provided with a copy of the signed Agreement; • agreed to a price of no more than $5.89 per G/J for a term of five years; • understands that he may or may not save money in the Customer Choice program; and • has the right to cancel the Agreement without penalty within 10 days. As the matter has not been resolved directly between the Customer and the Gas Marketer, the BCUC has reviewed, investigated, and adjudicated the matter.
BCUC determination The conduct you described, if true, is inconsistent with Article 15 of the Code of Conduct 1 . Further, it is evident in the recording of the TPV call that does not speak English as his first language. In a situation such as this, involving allegations of deceptive acts or practices - misrepresentation - section 5(2) of the Business Practices and Consumer Protection Act 2 (Act) places the burden of proof on the supplier to demonstrate that the deceptive act or practice was not committed.
Access Gas states that it has not received previous misrepresentation concerns of this nature regarding the Access Gas representative assigned to this Agreement but that "a further investigation cannot be conducted with the sales representative as he is not actively working with Access." Access Gas further states that "even in the case where the sales representative is no longer working with us, Access consistently follows the same dispute investigation process by thoroughly reviewing the written Agreement and Third Party Verification (TPV) recording, along with any correspondence with our Customer Service team."
Access Gas has not disputed the facts you have put forward, regarding the sales representative’s alleged misrepresentations. While the sales representative might not be actively working with Access Gas, it does not necessarily follow that “a further investigation cannot be conducted with [him]...” Therefore, the BCUC finds that Access Gas has not discharged the burden under section 5(2) of the Act to demonstrate that the deceptive act or practice was not committed.
For these reasons, the BCUC finds the Agreement should be cancelled as of the dispute date. Sincerely, Original signed by: Patrick Wruck Commission Secretary
1 Code of Conduct for Gas Marketers, Article 15 p. 10. 2 British Columbia Business Practices and Consumer Protection Act, section 5(2) File 64372 | Customer Choice Program – GEM Dispute 38963 – Access Gas 2 of 3
Letter L-6-21 AS/jb Enclosure
cc: Ms. Megan Sedawie Unbundling Supervisor Access Gas Services Inc. megans@accessgas.com An application for reconsideration of this determination can be made following the guidelines enclosed.
File 64372 | Customer Choice Program – GEM Dispute 38963 – Access Gas
Mr. Charlie Barrotta Vice President Access Gas Services Inc. charlie.barrotta@accessgas.com
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Customer Choice Program Dispute Reconsideration Guidelines
January 2012
British Columbia Utilities Commission Sixth Floor, 900 Howe Street, Box 250 Vancouver, British Columbia, Canada V6Z 2N3
Telephone (604) 660-4700; Facsimile (604) 660-1102 B.C. Toll Free: 1-800-663-1385
Internet Email: customer.choice@bcuc.com Website: http://www.bcuc.com
TABLE OF CONTENTS Page No. 1.0 INTRODUCTION .....................................................................................................................1 2.0 STEPS IN THE DISPUTE RECONSIDERATION PROCESS ...............................................................1 2.1 Submit a Dispute ................................................................................................................. 1 2.2 The Reconsideration Process .............................................................................................. 2 2.2.1 Phase I – Initial Review ........................................................................................... 2 2.2.2 Phase II – Commission Reconsideration ................................................................. 2 3.0 ALTERNATIVES TO THE RECONSIDERATION PROCESS ..............................................................3 3.1 File for Leave to Appeal to the Court of Appeal of BC ........................................................ 3 3.2 The Office of the Ombudsperson of BC .............................................................................. 3
British Columbia Utilities Commission CUSTOMER CHOICE PROGRAM Dispute Reconsideration Guidelines 1.0 INTRODUCTION If a Customer or a Gas Marketer believes the Commission has made an error in the course of making a decision on a dispute, either party may raise the issue for further review by applying to the Commission for reconsideration. The Commission will not reconsider a dispute decision on the basis that the parties are unhappy with the decision. For a reconsideration to proceed, the applicant is required to establish a prima facie case (a case that until it is rebutted establishes that an error has been made) that reconsideration is warranted.
The following is an outline of the reconsideration process for the Customer Choice Program. This outline is used by the Commission to determine whether to accept an application for reconsideration and how to proceed with that reconsideration.
2.0 STEPS IN THE DISPUTE RECONSIDERATION PROCESS 2.1 Submit a Dispute Applications for reconsideration must be received by the Commission in writing within 30 days of the date of the disputed decision. An application for reconsideration must:
identify the disputed decision to be reconsidered including the dispute number, FortisBC account number and gas marketer’s name;
state the legal or factual grounds upon which the decision should be changed; state the applicant’s desired outcome; contain the name, address and telephone number of the applicant or the applicant’s representative; and
be signed by the applicant or the applicant’s representative. Applications should be addressed to Customer Choice Program and can be submitted via email, mail or fax to: Email: customer.choice@bcuc.com Fax: (604) 660-1102 Mail: Sixth Floor - 900 Howe Street, Box 250, Vancouver, BC V6Z 2N3 Once the Commission receives an application it will conduct an initial review to determine whether the application shall proceed.
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British Columbia Utilities Commission 2.2 The Reconsideration Process The Commission considers written submissions from the parties involved in a dispute in two phases of the reconsideration process. These two phases are outlined in the sections below.
2.2.1 Phase I – Initial Review In the interest of both efficiency and fairness, and before the Commission proceeds with a determination on the merits of an application for reconsideration, the application undergoes an initial screening phase. In this phase the applicant must establish a prima facie case sufficient to warrant full consideration by the Commission. The first phase is a preliminary examination in which the application is assessed in light of some or all of the following questions:
Should there be reconsideration by the Commission? If there is to be reconsideration, should the Commission allow new evidence? If there is to be reconsideration, should it focus on the items from the application for reconsideration, a subset of these items or additional items?
Following the Commission’s review of the application, the Commission issues a notice to the other party involved in the disputed decision requesting them to submit a response to the application for reconsideration by addressing those questions set out in the notice. Upon receipt of the other party’s response, the Commission asks the applicant to provide reply comments to the response received from the other party.
After the first phase evidence has been received, the Commission generally applies the following criteria to determine whether or not a reasonable basis exists for allowing reconsideration:
Has the Commission made an error in fact or law? Has there been a fundamental change in circumstances or facts since the initial decision? Is there new evidence or further information that was not taken into consideration in adjudicating the initial decision?
In addition, the Commission may exercise its discretion and decide to undertake reconsideration of a decision whenever it deems there is just cause. If the Commission decides that a request for reconsideration should proceed, the application moves on to Phase II of the process. If the Commission decides that reconsideration should not proceed, the Commission will provide all parties with written notice of its decision.
2.2.2 Phase II – Commission Reconsideration If the Commission decides an application for reconsideration should proceed, the Commission issues a Phase II Reconsideration Notice to the Customer and the Gas Marketer outlining the issues to be reconsidered and whether new evidence is allowed and setting the schedule for submissions. In moving to Phase II of the reconsideration process, the Commission will consider written arguments addressing the substance of the issues approved for reconsideration. When submitting written arguments, the parties must copy each other and must respond on or before the dates set out in the Phase II Reconsideration Notice.
The Commission bases its decision on the application on the submitted arguments. Dispute Reconsideration Guidelines 2
British Columbia Utilities Commission 3.0 ALTERNATIVES TO THE RECONSIDERATION PROCESS In addition to the Commission’s reconsideration process, there are two alternatives available to parties who wish to challenge a Commission decision or the fairness of the process used by the Commission to arrive at the decision:
File for leave to Appeal the Commission’s decision with the Court of Appeal of British Columbia File a complaint with the Office of the Ombudsperson of BC These options are discussed in more detail below. 3.1 File for Leave to Appeal to the Court of Appeal of BC The Utilities Commission Act provides a second alternative for challenging a Commission decision. This alternative is by way of the Court of Appeal of British Columbia. The Court of Appeal will consider only alleged errors of law or jurisdiction.
An application to obtain leave to appeal to the Court of Appeal must be launched within 30 days of the Commission issuing its Decision. Applicants must first obtain the court's leave for the appeal before commencing the actual appeal. The court will sometimes take into consideration as a factor in granting leave whether or not the party applying has exhausted its other remedies. Therefore, the party applying for leave may also want to apply for reconsideration by the Commission at the same time.
If a participant chooses to pursue an appeal, the procedures may be quite complex and formal. Normally, lawyers become involved at this stage, as their knowledge of court procedures and legal arguments tends to be very useful. It is not necessary, however, to hire a lawyer in order to make an appeal to the Court of Appeal.
3.2 The Office of the Ombudsperson of BC If a customer is not satisfied with the Commission's handling of a complaint, he or she may contact the provincial Ombudsperson's Office to review the process used. The BC Ombudsperson reviews the Commission’s processes, including the process for resolving complaints. The BC Ombudsperson can recommend reconsideration of a matter because of an error in procedure, but cannot overturn a Commission decision.
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