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FAQ: The Public Hearing Process

 

How does the Board approve applications?

The Ontario Energy Board (OEB or Board) operates as an adjudicative tribunal and carries out its functions through oral or written public hearings and rule-making.

Public hearings provide a forum for groups or individuals who may be affected by the actions of a utility or other market participants, to express their views to the Board. Hearings may be either oral or written. The Board bases its decisions or reports on facts or evidence examined during the hearing process. The public’s participation helps ensure that the Board makes an informed decision.

 

Is the Board a Court?

Hearings before the Board are conducted in a court-like manner, but are not as formal as a court of law. The Board conducts its hearings under authority of the Ontario Energy Board Act, 1998 and the Statutory Powers Procedure Act (SPPA) which sets out the minimum rules of procedure the Board must follow. In addition, under the authority of the SPPA, the Board has formulated its own Rules of Practice and Procedure to govern its proceedings.

Copies of the Board’s Rules of Practice and Procedure are available on our Web site under the Regulatory Instruments section of Rules, Guidelines and Forms or can be obtained by calling the Board’s Consumer Relations Centre at 1-877-632-2727.

 

Who hears the cases?

Panels of one or more Board members are assigned to hear cases. In some circumstances, the power to determine a proceeding has been delegated to an employee of the Board. A panel of the Board would determine any appeal.

 

Do I need a lawyer to appear?

Parties who wish to participate in the hearing may appear on their own behalf. It is not mandatory to have a lawyer represent you at a hearing. Depending upon the type and complexity of the application, the applicant will, in all likelihood, be represented by legal counsel to support their application.

 

Where are the hearings held?

The majority of the Board's oral hearings are held in one of two hearing rooms at the Board’s offices located on the 25th floor at 2300 Yonge Street in Toronto. In cases where there are matters that have generated substantial public participation and interest within the service area of the utility that has filed the application, the Board may schedule hearings in appropriate venues in the area to facilitate the public's access to the hearing.

 

Language

The hearing may be conducted in English or French. Unless otherwise requested, the hearing will be conducted in English. Any request for a hearing in the French language should be made to the Board Secretary at the time the intervention is filed in order to allow for arrangements for appropriate translator or interpreter services to be made.

 

How does the Hearing Process start?

The hearing process starts when:

Prior to holding a public hearing, a Notice of Application or a Notice of Public Hearing is published in newspapers or served on individuals. If the application pertains to an area designated bilingual under the French Languages Services Act, the Notice of Application will also be published in French language daily and weekly newspapers within the service area.

The Notice of Application or Notice of Hearing gives a brief outline of the subject matter to be determined at the hearing (including whether or not the proceeding will be written or oral), and provides the steps required for a party to participate in the proceeding.

 

How can I participate?

There are a number of ways in which you may participate in the proceeding and assist the Board in making an informed decision.

 

Intervenor

Interested groups or individuals who may be affected by the utility’s actions may actively participate in the hearing. Active participants are called intervenors. Intervenors may include customers, consumer and trade associations, environmental groups, public interest groups and affected individuals. Anyone intending to actively participate in the proceeding, by submitting evidence, arguments, interrogatories (written questions) or by cross-examining a witness or witnesses, is required to file a letter of intervention with the Board and serve a copy on the applicant at the address specified in the application.

Each letter of intervention must state:

Upon receipt of your letter of intervention, the Board will review your letter and you will be notified by the Board Secretary that you have either been accepted as an intervenor or that your letter of intervention has been rejected. The Board may reject your request for intervenor status if you fail to prove to the Board that you have a direct interest in the proceeding or that you do not intend to actively participate in the proceeding. If your letter of intervention is rejected, the Board will provide reasons for the rejection.

Intervenors may be eligible to file a cost award with the Board to receive all or part of their reasonably incurred costs in the proceeding. For information on the Board's Cost Award Process, please refer to the “Do I have to pay my own costs for participating?” question.

 

Observer

Interested groups or individuals who do not want to actively participate in the proceeding, but who wish to monitor the progress of the proceeding, may file a request with the Board Secretary to receive these documents. There is no fee involved to receive documents issued by the Board to observers. To receive documents pertaining to the proceeding filed and issued by the other parties to the proceeding, you may request them from the individual parties who filed them. You may be required to pay for expenses incurred in preparing and delivering of the documents to you.

All documents filed in a proceeding may be examined free of charge in the Public File Room at the Board’s offices.

 

Written Comment

If you wish to comment on the application without becoming an intervenor, you may write a letter of comment to the Board Secretary clearly stating your views. All such letters will become part of the public record in the proceeding and a copy will be provided to the Board members deciding the application, as well as to the applicant. It should be noted, however, that a letter of comment is not sworn evidence and is not subject to cross-examination.

 

Oral Comment

If you wish to comment during an oral proceeding, you may advise the Board Secretary, who will then contact you to arrange a date and time for your appearance at the hearing. The Board may determine whether a person who makes an oral presentation shall do so under oath or affirmation and be subject to cross-examination by the parties to the proceeding or be unsworn.

If you provide an oral or written comment only, you have not been granted intervenor status. You will not automatically be given any of the pre-filed evidence and you will not be allowed to cross examine witnesses.

 

How long does a Hearing take?

The duration of a hearing of the evidence depends upon the type and complexity of the application. For example: a natural gas rates hearing is representative of a major hearing and may last as long as 6 weeks, depending upon how many of the issues are settled prior to the hearing. The hearing of a facilities application generally requires 1 week of sitting time. Franchise and certificate hearings are usually done in writing and are often completed in one or two days.

The total elapsed time in a natural gas rates hearing from the date the application is filed to the date the Board issues its final decision or order may be as long as 10 months.

 

How do I prepare for the Hearing?

As an intervenor you are eligible to receive all pre-filed substantiating evidence submitted by a party. You will also receive copies of their evidence, interrogatories and replies to interrogatories from the other intervenors. Likewise, you will be expected to send copies of your evidence, questions and replies to all parties to the hearing. Any document that you intend to rely on as evidence in the hearing must be filed with the Board and sent to all other parties at least 24 hours in advance of any reference to it in the hearing.

 

How am I advised of the date for an Oral Hearing?

The Board will issue a Notice of Hearing to all parties stating the date, time and location of the hearing. Alternatively, a Procedural Order which lists the dates of the different events, including the date, time and place of the hearing may be issued.

 

What happens at an Oral Hearing?

At the commencement of the oral hearing, the Presiding Member will outline the procedure to be followed in the hearing. The Presiding Member will ask all parties to the hearing, including any legal counsel, to identify themselves for the purpose of the hearing and the public record.

The Presiding Member will also ask if anyone wishes to make an oral presentation to the Board, and if so, arrange a suitable time.

Upon completion of the opening remarks, the Board will proceed to hear the evidence associated with the application. Witnesses usually give evidence in panels whereby each issue identified on the Issues List will be addressed by all parties until all the evidence with respect to that issue is complete. The applicant in most instances will provide its evidence first. Upon completion of the applicant's evidence, other parties will have the opportunity to cross-examine the applicant’s witness panels. Intervenors will then be required to present their evidence, which is also subject to cross-examination by the other parties, including the applicant.

When all the evidence pertaining to all matters on the Issues List has been heard, the parties are entitled to make a final argument or submission. The timing and form of all final arguments will be determined by the Hearing Panel. Final arguments are either oral or written and provide the parties with the opportunity to summarize the facts and argue the points they feel are relevant for the Board's consideration in determining the matter at hand.

 

Are the Board's proceedings recorded?

The Board's oral hearings are transcribed by court reporters and a written record (transcript) is usually available within 2½ hours after the completion of the hearing day. Anyone may order a copy of the transcript from the court reporter, in hard copy or electronic format, upon payment of the required fee.

Electronic recording of the proceedings is not permitted.

NOTE: Copies of transcripts can be obtained from the Board’s service provider which is:

Viva Voce Reporting Ltd.
The National Bank Building
Suite 1206, 150 York Street
Toronto, Ontario
M5H 3S5
(416) 366-8623 or e-mail farr@istar.ca

 

How does the Board issue a Decision?

The Board may issue a Decision either orally or in writing. The Board is required to provide reasons for its Decision on the request of any party. All parties to the proceeding will be advised of the time of the oral ruling.

Generally, a Decision for a major rates case or reference can be expected within 90 days after the conclusion of the evidentiary portion of the hearing. For hearings involving leave to construct or franchise applications, the time for the release of the Decision or may be shorter.

Copies of written Decisions are issued to all parties to the proceedings. All Board decisions are public documents. Major cases are published on our Web site and copies are available to the general public by contacting the Board’s Consumer Relations Centre.

Once a Decision on a major rates case has been issued, the Board will shortly thereafter issue a Board Order directing the Board’s Decision be implemented.

 

Is the Board's Decision final?

The Board's Decisions are subject to various types of appeals. A motion may be filed with the Board, by any of the parties to the hearing, requesting the Board to rehear or review any application. Upon review, the Board may issue an order to alter or amend any previous order it has made.

The Board's Management Committee can delegate powers and duties to an employee of the Board. Any Decisions made by that employee can be appealed to the Board.

An appeal from a Decision of the Board also lies to the Divisional Court, but only on matters of law and jurisdiction, not of fact. The appeal to the Divisional Court must be commenced within 30 days after issuing the rule or order, unless leave has been received from the Divisional Court to extend the appeal deadline.

The final way to appeal is to the Lieutenant Governor in Council. This is a petition to the Cabinet of the Ontario Government. Any party or person interested, may file a petition with the Clerk of the Executive Council within 28 days from the date a rule or order was issued. Cabinet may confirm the Board’s rule or order, or require the Board to rehear the matter. Cabinet does not have the power to change the Board’s rules and orders.

 

Media

Occasionally, the Board will receive a request by the media to record a portion of one of the hearings. Any permission to record the proceeding by the news media is at the discretion of the Hearing Panel. If permission is granted, the Board requires the media to place their equipment in a manner that does not disturb the proceedings.

 

Do I have to pay my own costs for participating?

The Board has the authority under section 30 of the Ontario Energy Board Act, 1998 to award costs to intervenors in the proceeding.

Applying for a cost award is a two step process. In order to determine eligibility, an intervenor must first prove to the Board that they are eligible to apply for an award of costs because they fall under one of the eligibility criteria established in the Board's Cost Eligibility Guideline. The criteria are as follows:

When filing a letter of intervention, the intervenor is required to state whether an award of costs will be sought at the conclusion of the proceeding, as well as the reason(s) the intervenor meets one or more of the eligibility criteria. Board Members hearing the application (the Hearing Panel) determine whether a party is accepted as an Intervenor and make an eligibility determination based on the information submitted by the intervenor.

All local distributors of natural gas or electricity and all agents, brokers or marketers of natural gas or electricity are not eligible for a cost award.

The Board also may, in special circumstances, find that an intervenor who is typically not eligible for a cost award, is eligible in a particular proceeding.

The Board will respond to a letter of intervention advising the party whether they have been accepted as an intervenor in the proceeding and whether they have been deemed eligible for cost awards.

The Board has established a Cost Awards Tariff which details rates that can be charged for various services such as legal fees, consulting fees and witness fees, as well as for disbursements such as travel and accommodation expenses.

Any cost award granted by the Board is done so at the conclusion of the hearing. The Board may order that one of the parties, usually the applicant, reimburse other parties for their reasonably incurred costs of participating in the hearing process, namely:

Intervenors have the opportunity to receive up to 100 percent of their reasonably incurred costs, provided that in the Board’s opinion, they have participated responsibly in the proceeding and have contributed to the Board’s understanding of the issues.

The Board may also assess costs against an intervenor where the Board feels the intervention is frivolous or vexatious or has caused undue delay.

The Board may also award costs to a party on the basis of a fixed amount per day for participating in pre-hearing activities such as technical conferences, issue conferences, settlement conferences or pre-hearing conferences.

 

How do I claim my Cost Award?

When final arguments are submitted in a proceeding, or any time the Board directs, parties eligible to apply for cost awarda may speak to the amount of, and reasons for the costs they seek.

Within 14 days of the last date for submitting final arguments, parties seeking cost awards must submit a cost statement in accordance with the Board’s Cost Assessment Guidelines, detailing the cost award being sought on forms available from the Board Secretary. Copies of each cost statement must be filed with the Board and submitted to the parties costs are being claimed from.

At the conclusion of the proceeding, the Hearing Panel determines the percentage of each intervenor’s expenses that should be reimbursed based on the intervenor’s level of participation and his/her contribution to the Board’s understanding of the issues. This determination will either be included as part of the Board’s Report/Decision with Reasons, or a Supplementary Cost Decision with Reasons.

The Board reviews the individual intervenor’s cost statements for reasonableness according to the Board’s Cost Assessment Tariff, taking into account the percentage awarded by the Hearing Panel, and makes a recommendation on the amount to be awarded.

The Board then issues a Cost Order directing the party designated as the payor to reimburse the intervenor for the amount of the cost award as determined by the Hearing Panel. The recommendation may be objected to by either the applicant or the intervenor. The final determination of the actual amount of the award will be made by the Hearing Panel.

 

How do I contact the Board?

Contact Us

 


Related Information

About the Energy Sector: Public Hearings