Motion sickness: Can too much process undermine tribunal effectiveness? CAMPUT Regulatory Key Topics Meeting Montreal, January 28-30, 2018 JP Mousseau AUC Counsel

Process is good, right? Providing some form of process before deciding a motion is generally a good idea but it can sometimes add time and expense to a proceeding without material benefit. Some factors to consider when deciding on process include: The motivation for the motion. The scope and nature of the issue. The impact of the decision on parties. The impact of the decision on the proceeding itself.

So what’s the problem? Motions can extend proceeding timelines significantly because resolution generally require some process. Registered parties make submissions on the motion . The party that brought that motion replies to those submissions. Ruling on the motion. Depending upon its nature, the resolution of a motion can add weeks or even months to proceeding.

Some basic strategies Determine if any process is actually required. Is the relief requested obvious and necessary or clearly without merit? Does the motion have the support of all parties? Short response deadlines where reasonable and fair. Short rulings – tribunals have wide discretion on process matters. Motion deadline 2-3 weeks before hearing to protect tribunal preparation time (motions after deadline heard in hearing)

Motions and costs Improper motions or improperly timed motions can be addressed through costs – i.e. “The Commission is surprised that the XXX filed a substantial motion requesting further and better responses to information requests less than a day before its evidence was due given the length of time it had to review the information in question. The Commission will consider the timing of this motion and its impact on the overall proceeding when reviewing the costs claimed by the XXX in accordance with Section 11.2(h) of Rule 022: Rules on Costs in Utility Rate Proceedings.”

Common motions Confidentiality Further and better responses to IRS Adjournments and time extensions Excluding or compelling evidence

Confidentiality requests Factors for confidentiality generally include: Could disclosure reasonably result in: (a) undue material financial loss or gain, (b) significant harm or prejudice to a competitive or negotiating position, or (c) harm to individuals, public safety or to the environment. Is the information personal, financial, commercial, etc. and consistently treated as confidential. Does the interest in confidentiality outweigh the public interest in the disclosure of the information. Does the person submitting the document have legal obligations to maintain confidentiality.

Some solutions Define categories or documents that are presumptively confidential – e.g., personal health records, certain types of bid information, etc. Determine if the information is relevant and material. Determine if the information can be provided in a summary, aggregate or other form that does not expose the elements of the information that are confidential. If requests arises from an IR process, encourage parties to share the documents privately before deciding confidentiality - may turn out that neither party wants the information on the record.

Interrogatories: full and adequate responses Most tribunals have a formal interrogatory process that defines limits for information requests and responses. Motions generally relate to ambiguous/overly broad questions (fishing expeditions), or non-responsive or incomplete responses. Important to have clear and explicit rules requiring a responder to specify why it is unwilling or unable to provide a full and complete response.

Some solutions Determine if an interrogatory process is even necessary. Convene a “technical meeting” for complex proceedings where parties can seek clarification directly from the applicant or each other. Issue tribunal IRs before the parties’ IRs. Require responders to make reasonable efforts to expeditiously clarify ambiguous requests before response deadline. Prescreen and eliminate unreasonable requests before seeking replies. Include a “motions day” in the process (for IRs in complex proceedings). Address improper interrogatories and responses through costs.

Adjournments and time extensions Consult with participants before setting the hearing schedule. Build extra time into the schedule in anticipation of motions and delays, especially on complex proceedings. For short time extension requests, grant to all participants and adjust the whole schedule by a day or two to accommodate. For rural hearings with landowner involvement, avoid hearings during seeding, calving, harvest, etc.