2013 Cost of Service Orientation Session The Application Process - The Hearing Process and What Happens at an Oral Hearing? July 9, 2012 Jennifer Lea Counsel, Special Projects Applications and Regulatory Audit Ontario Energy Board

2 Application Process Application Notice Interventions Interrogatories Technical Conference Settlement Conference Evidence Hearing Argument/ Submissions Decision Rate Order Motions/ Appeals Written Hearing – Streamlined 185 days Written Hearing – Standard 230 days Oral Hearing 280 days

3 Parties to a Regulatory Proceeding Applicant Board Panel or Delegated Authority –Decision Makers Board staff –Manage case process for decision maker –Public interest role to ensure accurate and complete record for decision makers Intervenors Ratepayers –Individual interventions –Letters of comment

4 Application filed File with Board Secretary Follow filing requirements at a minimum Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

5 Letter acknowledging application After application received, the Board, will send you a letter saying we received your application If application meets filing requirements application will proceed If application doesn’t meet filing requirements application cannot be processed without further evidence – we will specify

6 Must have a hearing Required by legislation – s.19(2) and 21(2) Ontario Energy Board Act,1998 Exception? –No-one responds to notice –No-one will be adversely affected in a material way by the outcome

7 Steps in a hearing Every hearing includes: Giving notice of the application Creating a record –Filing and testing evidence –argument (submissions) Making a decision Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

8 Notice: customers Notice must be given to anyone who is affected by the application Notice by way of publication in local newspaper(s) of highest circulation Service on particular groups, etc Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

9 Notice: intervenors The notice of application invites individuals or groups to intervene, observe or send comments Right to intervene: –Directly affected (e.g. ratepayer) –Represent a group of customers (e.g. low-income customers, industrial customers) Applicant can object to an intervention; notice describes how Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

10 Notice: proof The Board cannot proceed until it is satisfied notice has been given as directed The Board needs evidence of the date that notice was published File an affidavit proving date of notice, service and publication Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

11 Creating a record Board must decide case on basis of record Record includes: –Application –Evidence –Interrogatories (written Q&A) –Oral Q&A –Submissions Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

12 Creating a record: File everything through Board Secretary’s office The Board Secretary is the keeper of the record If it isn’t filed with the Board Secretary, it’s not on the record!

13 Option: Issues Day If: Complicated application Large distributor Many intervenors Have an issues day Issues conference – parties meet Issues day – Board hears and decides Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

14 Option: Interrogatories Board staff and intervenors will need to ask questions about the application In writing: interrogatories Advantage: time to answer, completeness To minimize questions: –Complete and clear application –Give reasons for the numbers provided –Ask: what does the Board need explained to fully understand the application? Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

15 Option: Technical Conference Oral questions instead of or as well as written interrogatories – technical conference –transcribed and part of the record Advantage: quicker than the interrogatory process –But usually need additional IRs or undertakings May not be suitable for large or complex applications Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

16 Option: ADR Can often settle some or all of the issues to avoid a hearing Applicant, intervenors and staff meet, sometimes with a facilitator, to try to create a settlement proposal Board considers proposal – if accepted, no need to hear the settled issues Proposal becomes part of the record Settlement Conference Guidelines Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

17 Example: Written hearing Use IRs to build a good record –Can have supplemental IRs if necessary Then proceed to submissions from parties (staff, intervenors, applicant) Advantage: Better record, but no need for oral hearing Won’t work if need to debate issues or meet to clarify evidence Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

18 Example: Written hearing with technical conference Add technical conference to clarify application and IR responses –Conference part of record Then written submissions Advantages: –opportunity to discuss evidence and clarify through verbal exchange –less formal than oral hearing Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

19 Example: Written hearing with technical conference & ADR Add ADR to try to settle issues Advantages: –May be able to avoid hearing altogether –More predictable result –Even if no full settlement, better understanding of what’s at issue BUT: have to be willing to negotiate Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

20 Example: Full oral hearing Large and complicated applications may need full oral hearing Include all steps, including evidence from intervenors and Board staff and interrogatories on that evidence ADR optional Advantage: comprehensive review Notice Issues IRs Intv Evid IRs ADR Hearing Filing Tech Conf

21 What Happens at an Oral Hearing? Hearings are public unless ordered to be “in camera”. A sense of formality confers respect on the process and the powers of the Board, as represented by the Panel. When the Panel enters, Board counsel or the case manager will call the Hearing Room to Order and all must stand. The Panel will sit at the dais with the Chair (presiding member) of the Panel in the centre. The Panel will introduce themselves and ask other parties to do the same. The Panel will establish the process for the hearing. The hearing is transcribed by a court reporter in attendance during the hearing.

22 What Happens at an Oral Hearing? General Rules of Conduct All cell phones must be turned to mute or vibrate and not be used during a hearing. –Blackberries and similar devices should be turned to mute or vibrate and be used judiciously and unobtrusively. Participants should wear appropriate business attire rather than “business casual”. No food should be brought into, or consumed, in the hearing room. –Beverages such as water, coffee and juices may be consumed. Participants need not bow when entering or leaving the hearing room while the Panel is sitting. The courtesy of bowing is between counsel and the tribunal/panel members. Role of Board Staff Case managers generally number exhibits and undertakings throughout the course of the hearing and provide them to the Panel on the dais. The system for numbering is: –Exhibits:J 1.1 (1st exhibit of day 1), J 2.1 (1st exhibit of day 2) –Undertakings:K 1.1, K 2.1 In addition to the above, the case manager on the staff team should be alert to “housekeeping” matters such as difficulties with the microphones.

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