A review of Ontario Energy Board Decisions and Orders on Cost Awards from 2016
reveals that the OEB has been more likely to disallow parts of
intervenor cost claims than in past periods. In at least six cases,
the OEB has declined to award an intervenor the full amount of
costs claimed. For the most part, the OEB's cost award
disallowances have not been prompted by objections from applicants,
but instead have resulted from the OEB's own review of the cost
claims made. The OEB's decisions appear to indicate a move
towards controlling intervenor costs, especially in cases where the
total value of intervenor cost claims is significant.
The OEB's framework for cost awards is set out in the Practice Direction on Cost Awards. The
Practice Direction sets out what types of intervenors are eligible
for cost awards (primarily ratepayer group representatives) and
directs the process to apply for cost eligibility. The OEB's
practice is to require eligible intervenors to submit their cost
claim at the end of a proceeding, and then to allow the applicant
(who will pay the cost award) to file any objection before the OEB
makes a decision. Section 5 of the Practice Direction sets out the
things that the OEB may consider in determining the costs payable
to an eligible intervenor, including whether the party has: (i)
participated responsibly in the process, (ii) contributed to a
better understanding of one or more of the issues in the process,
(iii) made reasonable efforts to combine its intervention with that
of one or more similarly interested parties, (iv) made reasonable
efforts to focus its participation in the process so that it is
relevant and not unduly repetitive, and (v) engaged in conduct that
has unnecessarily lengthened the process. The OEB publishes its Decisions and Orders on Cost Awards after all
cost claims have been submitted and considered.
A number of Decisions and Orders on Cost Awards issued by
the OEB in 2016 have resulted in disallowances of portions of costs
claimed by intervenors. In some cases, the disallowances have been
significant (more than $25,000). The main factors cited by the OEB
in making these determinations are that the number of hours claimed
(which drives the amount of the cost claim) are out of proportion
with either or both of the contributions made by the intervenor and
the hours spent by similarly situated intervenors. Another area of
concern is around the costs for experts retained by intervenors,
especially where the expert's work overlaps with the role
already played by the intervenor. Examples of recent Decisions and Orders on Cost Awards where the
OEB has discussed these items can be found here, here, here and here.
As we explained in a recent
post, the OEB has now announced the creation of a new Consumer
Engagement and Participation Framework. Among other things, this
will include the addition of "Regional Consumer
Representatives" who will apparently be selected by the OEB to
gather information from and advocate on behalf of local customers
during the hearing. Presumably, this new framework will have
implications for the determination of cost awards in future
proceedings. If we assume that the Regional Consumer
Representatives will have assured funding to actively participate
in each proceeding, their role will no doubt raise questions about
how other intervenors are to participate in a proceeding while
respecting the OEB's expectation that parties combine their
intervention with similarly situated parties and refrain from
repeating the positions and roles taken by others. Perhaps some of
these questions will be answered when the OEB releases its pilot
and implementation plan for Regional Consumer Representatives in
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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