EUB agrees intervener acted unfairly toward N.B. Power during hearing

New Brunswick's Energy and Utilities Board has ruled that a participant in one of its hearings failed to properly disclose who he represented, resulting in procedural unfairness against N.B. Power.

The ruling stems from an EUB hearing into a request by the Crown electricity 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 what N.B. Power charges to "balance" the uneven flow of electricity through its system caused by the up and down production of area wind farms.

Saint John Energy and Liberty Utilities are two of eight entities that had representatives submit evidence during the hearing.

Another participant of the hearing, William Marshall, registered to present submissions under his consulting company, WKM Consultants Inc. on his own behalf.

However, N.B. Power lawyer John Furey last month accused Marshall of secretly representing undisclosed third parties, leading to Marshall's admission that Saint John Energy and Liberty Utilities are clients of his consulting firm. He denied he was representing them at the hearing.

Furey later filed a motion asking that the Energy and Utilities Board remove Marshall from the hearing and have his submissions scrubbed from the record.

The parties met virtually on Wednesday for what was supposed to be submissions before the board on the motion. However, on board chair Francois Beaulieu's suggestion, they agreed to discuss the matter through an in-camera alternate dispute resolution process.

The parties came to a unanimous resolution after almost two hours of discussion. 

The parties agreed on forwarding to the board an order that WKM Consultants breached the board's rules of procedure by failing to disclose it was retained by third parties, and that this relationship caused potential or procedural unfairness to N.B. Power as the applicant.

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

Claims of double representation

In explaining the resolution, Furey said Marshall's actions breached the board's rules in two aspects.

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

Furey also argued that Marshall's submissions afforded Saint John Energy "double representation" during the hearing as the municipal power company already had its own representative.

"There was alignment to some extent of the of the positions of those two experts," Furey said Wednesday. "So effectively, there were two experts put forward by the same party, undisclosed to the board or other parties."

Following Furey's remarks, Richard Williams, the province's public intervenor, weighed in, saying Marshall appeared to attempt to "cloak himself in secrecy" so as to be seen as an independent expert simply trying to assist the board in its deliberations.

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

After a lunch break, the board reconvened Wednesday afternoon and Beaulieu told the parties it accepted the terms.

"What the board will be doing next is work on preparing an order and have it translated, so that should probably be distributed to all parties in the coming days," Beaulieu said.

The board will hear closing arguments on the hearing on Sept. 9.