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Precedent-setting decision regarding bottle depot handling fees

The Alberta Beverage Container Management Board (BCMB) received the much-anticipated decision of Madam Justice Biel...


The Alberta Beverage Container Management Board (BCMB) received the much-anticipated decision of Madam Justice Bielby in judicial reviews by the Western Brewers Association (WBA) and Alberta Bottle Depot Association (ABDA) concerning the setting of beer container handling commissions on June 26, 2003. The court has validated the "regulated industry" pricing approach to the setting of handling fees for bottle depots. As a result there is now a Canadian precedent to set handling fees that also helps to address the political "baseball style" of arbitrating waste management fees, which has been the last resort for setting waste management fees.

Madam Justice Bielby quashed the decision of the BCMB to refer the setting of beer handling rates to an arbitration panel, and sent the question of beer container handling commissions back to the BCMB to be reconsidered in light of her decision. The decision is quashed on the basis that the information and methodology utilized previously was insufficient, and the process leading to the decision was unfair to the parties. She held that the methodology must be consistent with the "traditional" utility rate-setting approach.

The BCMB must gather sufficient information and take the following steps to utilize this approach, including:

 The BCMB must gather appropriate evidence from the Uniform Code of Accounts, and other capital cost information as may be required;
 The BCMB must define a procedure for representations to be made by the interested parties to provide a fair opportunity for the parties to know the information gathered and for the interested parties or their counsel to make representations to the Board;
 The Board shall consider the recommendations of BCMB Management and the representations of the interested parties, and utilize the approach required by Madam Justice Bielby to determine an appropriate handling commission for each container. If the Board is not unanimous in its decision, the question of handling commissions will be referred to an arbitration; and,
 The arbitration procedure should be revised, and should not be the "baseball style" arbitration originally proposed by the BCMB.

The decision provides the BCMB with a road map for the appropriate information and calculations to be utilized, while upholding the composition of the BCMB, and its ability to refer handling commission decisions to arbitration.

(See "Sense and Cents: Alberta’s new approach to bottle-depot handling fees" in the April/May 2003 edition.)


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