EUB agrees intervenor acted unfairly to NB Power at hearing

The New Brunswick Energy and Utilities Board ruled that a participant in one of its hearings failed to properly disclose who he was representing, resulting in procedural unfairness against NB Power.

The decision stems from an EUB hearing into a request by the Crown Electric Company to increase the amount it charges companies like Saint John Energy and Liberty Utilities to use its transmission infrastructure.

One particularly controversial proposal is a plan to more than quadruple NB Power’s charges to “balance” the uneven flow of electricity through its system caused by the highs and lows of output from the region’s wind farms.

Saint John Energy and Liberty Utilities are two of eight entities whose representatives presented evidence at the hearing.

Another hearing participant, William Marshall, registered to make submissions through his consulting firm, WKM Consultants Inc. on his own behalf.

However, NB Power attorney John Furey last month accused Marshall of secretly representing undisclosed third parties, leading Marshall to admit that Saint John Energy and Liberty Utilities are clients of his consulting firm. He denied representing them at the hearing.

NB Power attorney John Furey told the EUB that Marshall’s failure to disclose his relationships to third parties led to missed opportunities to ask him relevant questions during his presentation of evidence during the trial. hearing. (Graham Thompson/CBC)

Furey then filed a motion asking the Energy and Utilities Board to remove Marshall from the hearing and have his submissions expunged from the record.

The parties met virtually on Wednesday for what were supposed to be submissions to the board on the motion. However, at the suggestion of board chairman Francois Beaulieu, they agreed to discuss the matter through an alternative dispute resolution process behind closed doors.

The parties reached a unanimous resolution after nearly two hours of discussion.

The parties have agreed to forward to the Board an order that WKM Consultants violated the Board’s procedural rules by failing to disclose that it was retained by third parties and that this relationship caused potential or procedural unfairness to NB Power by as an applicant.

The order will also see Marshall withdraw his request to be qualified as an expert witness at the hearing.

Claims of dual representation

In explaining the resolution, Furey said Marshall’s actions violated council rules in two respects.

He said the first is that by failing to disclose the relationship between his company and the other parties to the hearing, NB Power missed opportunities to question Marshall in a way that could have revealed relevant information.

Furey also argued that Marshall’s submissions offered Saint John Energy “dual representation” at the hearing, as the municipal power company already had its own representative.

Public Intervenor Richard Williams says Marshall’s submissions could be interpreted as a double representation of Saint John Energy at the EUB hearing. (Saint John Energy)

“There was some alignment in the positions of these two experts,” Furey said Wednesday. “So effectively there were two experts proposed by the same party, not disclosed to the board or other parties.”

Following Furey’s remarks, Richard Williams, the province’s public advocate, weighed in, saying Marshall appeared to be trying to “hide himself in secrecy” in order to be seen as an independent expert simply trying to help the council in its deliberations.

“It seems obvious, to me at least, that Saint John Energy was hoping to have…two seemingly unrelated experts who…were sort of almost on the same page,” Williams said.

After a lunch break, the board reconvened on Wednesday afternoon and Beaulieu told the parties he agreed to the terms.

“What the council will do next is work on preparing an order and have it translated, so it should probably be distributed to all parties in the next few days,” Beaulieu said.

The council will hear arguments at the September 9 hearing.

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