1. CAMPUT 2015 Energy Regulation Course Donald Gordon Conference Centre Queen's University, Kingston, Ontario Role of Tribunal Staff, Interveners and Independent Expert Witnesses in a Hearing Brian McNulty, Associate General Counsel Alberta Utilities Commission

2. Role of Tribunal Staff in the Hearing Public utility commissions, boards and tribunals are quasi-judicial, independent, specialized, expert agencies created by statute. Tribunals are permitted to hire expert staff and counsel to provide assistance in considering applications before them. Public utility tribunals are mandated to make decisions in the public interest. The public interest standard will generally be met by an activity that benefits the segment of the public to which the legislation is aimed, which includes both the utility and its customers.

3. Role of Tribunal Staff in the Hearing The pubic interest also attempts to minimize, or mitigate the potential adverse impacts on more discrete parts of the community. Staff’s role is to assist the tribunal members in making a decision in the public interest by assisting the decision makers to understand the evidence, providing advice and ensuring that the record is complete. Staff do not make the decision. Tribunal members make the decisions in good conscience and in the public interest after considering the evidence and argument in a careful, fair, and objective manner.

4. Role of Tribunal Staff in the Hearing Staff may provide explanation and advice on the evidence and argument presented during the hearing. Staff advice can be an expression of professional opinion on the meaning of the evidence and the reasonableness of the differing expert opinions. However, the decision of the tribunal members must be a product of the members own independent conclusions given in good conscience and based on consideration of all the evidence.

5. Role of Tribunal Staff in the Hearing Procedural fairness requires that a party is entitled to know the case he or she has to meet, has an opportunity to respond and that the persons hearing the evidence render a reasoned decision. How is this reconciled with staff giving advice on contentious issues to tribunal members outside of the hearing room?

6. Role of Tribunal Staff in the Hearing The participants in the hearing are not privy to discussions between staff and the panel members. If staff offer new facts or opinions on a material issue that has not been the subject of attention in the hearing and which could impact the decision, the tribunal has the obligation to inform the hearing parties and give them an opportunity to respond. However, there is no questioning of hearing staff by parties unless they form a separate staff submission group.

7. Role of Tribunal Staff in the Hearing Staff Activities in Hearing Manage hearing logistics Assess positions of parties as evidenced through testimony without advocating any particular position. Tribunal counsel questions applicants and interveners in a neutral manner. Staff questioning at hearing is one of the best ways to help the tribunal understand strengths and weaknesses of the parties’ positions and to complete the record. Research issues that arise during the hearing and supplement questions for tribunal counsel.

8. Role of Tribunal Staff in the Hearing Assist panel with rulings on interlocutory motions by researching relevant parts of the record and applicable precedent. Summarize, explain and comment on evidence for panel as it arises and is requested by panel. Assist panel in preparing questions as required.

9. Role of Tribunal Staff in the Hearing Refrain from communication with parties outside the hearing room regarding matters at issue. Generally refrain from presenting facts, arguments, opinions to panel not already disclosed on the record. Where necessary, identify new facts, factual errors or new relevant information to panel so it can decide whether to disclose to hearing participants.

10. Role of Tribunal Staff Post-Hearing Prepare summaries of the evidence. In some jurisdictions, staff will prepare first draft of decision or parts of decision based on direction of panel. Generally refrain from introducing new facts, information or arguments unless material to the decision. Where necessary, identify area of new information to panel and seek direction of panel before discussing further. Panel will decide what to do with the new information including whether to disclose to parties. Example: Recently released court decision

11. Role of Interveners in Hearing Interveners Interveners are parties with an interest in the application before the tribunal who either support or object to the application. Interveners advance their own position and views on the issues before the tribunal. Interveners do not have the responsibility to ensure that a tribunal’s decisions are in the public interest. However, tribunals are likely to make better decisions in the public interest when they have all viewpoints presented. Some jurisdictions fund participation of certain types of interveners.

12. Role of Interveners in Hearing Through their counsel and witnesses, interveners:  cross examine the applicant’s witnesses and other parties adverse in interest in an effort to undermine or weaken the other side’s case  lead direct evidence which establishes their case  provide argument in favour of the outcome they are seeking

13. Role of Independent Expert Witness Independent Expert Witness Acting in the public interest requires a tribunal to actively test the evidence and to explore the relevant issues in an effort to complete the record necessary to make a decision. Tribunals do not always have the required expertise in- house. In some cases, the tribunal calls independent expert witnesses to address issues that the tribunal considers important and required to complete the record of the proceeding. The tribunal retains the expert witness and a lawyer to act for the expert witness in the proceeding. Although the tribunal pays for expert’s services, it does not in any way direct or otherwise influence the evidence of the expert witness.

14. Role of Independent Expert Witness The expert witness will: prepare evidence, answer information requests pertaining to its evidence; issue its own information requests to other hearing participants related to their evidence attend the hearing and be cross-examined by parties and the tribunal The independent expert witness’ counsel does not cross examine other parties nor file argument.

15. Role of Independent Witness The evidence of an independent witness engaged by the tribunal must still be tested by parties and by the tribunal counsel. Parties must have the ability to respond to the expert evidence. Similar to an expert witness presented by parties to a proceeding, the tribunal must assess the probative value (weight) to be given to the evidence provided by an expert witness engaged by the tribunal.

16. Questions?