The New Brunswick Power and Utilities Board has ruled that a participant in one of its hearings failed to properly disclose who he was representing, resulting in procedural injustice against NB Power.
The ruling stems from an EUB hearing on a request by the Crown power company to increase the amount it charges companies such as Saint John Energy and Liberty Utilities for using its transmission infrastructure.
One particularly controversial proposal is a plan to more than quadruple what NB Power charges to “balance” the uneven flow of electricity through its system caused by the upstream and downstream production of area wind farms.
Saint John Energy and Liberty Utilities are two of the eight entities whose representatives presented evidence during the hearing.
Another audience participant, William Marshall, registered to present presentations under his consulting firm, WKM Consultants Inc. on his own behalf.
However, last month, NB Power attorney John Furey accused Marshall of secretly representing undisclosed third parties, prompting Marshall to admit that Saint John Energy and Liberty Utilities are clients of his consulting firm. He denied that he was representing them at the hearing.
Furey then filed a motion asking the Board of Power and Public Utilities to remove Marshall from the hearing and expunge his presentations from the record.
The parties met virtually Wednesday for what were supposed to be board presentations on the motion. However, following the suggestion of the chairman of the board, Francois Beaulieu, they agreed to discuss the matter through an alternative dispute resolution process in the chamber.
The parties reached a unanimous resolution after nearly two hours of discussion.
The parties agreed to submit to the board an order that WKM Consultants violated the board’s rules of procedure by failing to disclose that it was retained by third parties, and that this relationship caused potential or procedural injustice to NB Power as applicant.
The order will also cause Marshall to withdraw his request to be qualified as an expert witness at the hearing.
Dual Representation Claims
Explaining the resolution, Furey said Marshall’s actions violated board rules in two ways.
He said the first is that by failing to disclose the relationship between his company and other parties at the hearing, NB Power missed an opportunity to question Marshall in a way that could have revealed relevant information.
Furey also argued that Marshall’s submissions gave Saint John Energy “double representation” during the hearing, as the municipal power company already had its own representative.
“There was an alignment to some extent of the positions of those two experts,” Furey said Wednesday. “So effectively, there were two experts presented by the same party, without disclosing them to the board or other parties.”
After Furey’s comments, Richard Williams, the province’s public comptroller, weighed in, saying Marshall seemed to be trying to “hide undercover” to be seen as an independent expert simply trying to help the board in its deliberations.
“It seems obvious, to me at least, that Saint John Energy expected to have … two seemingly unconnected experts who … were almost on the same page,” Williams said.
After a lunch break, the board reconvened Wednesday afternoon, and Beaulieu told the parties he agreed to the terms.
“What the board is going to do next is work on preparing an order and translate it, so it should probably be circulated to all parties in the next couple of days,” Beaulieu said.
The board will hear closing arguments from the hearing on September 9.