Rep: OEB
Doc: 12QQR
Rev: 0























ONTARIO ENERGY BOARD
Volume: 20 (REDACTED)
20 MAY 2003
BEFORE:

R. BETTS
PRESIDING MEMBER
G. DOMINY
MEMBER






1RP-2002-0133
2IN THE MATTER OF the Ontario Energy Board Act, 1998, S.O. 1998, c.15 (Schedule B); AND IN THE MATTER OF an Application by Enbridge Gas Distribution Inc. for an Order or Orders approving or fixing just and reasonable rates and other charges for the sale, distribution, transmission and storage of gas commencing October 1, 2002.


3RP-2002-0133


420 MAY 2003
5HEARING HELD AT TORONTO, ONTARIO


6APPEARANCES


7 
PAT MORAN
Board Counsel
COLIN SCHUCH
Board Staff
SUZANNE TONG
Board Staff
FRED CASS
Enbridge Gas Distribution
BRUCE MacODRUM
CME
ELISABETH DeMARCO
CEED
JAY SHEPHERD
School Boards
BRIAN DINGWALL
HVAC Coalition
MICHEAL JANIGAN
VECC
ROBERT WARREN
CAC
ROBERT HOWE
CWI and Accenture
MELANIE AITKEN
Direct Energy
ROGER HIGGIN
Ecoanalysis
PETER THOMPSON
IGUA
VINCENT DeROSE
IGUA
JOHN SPROAT
CWLP
ELIZABETH STEWART
Enbridge Inc. et al






8TABLE OF CONTENTS


9 PROCEDURAL MATTERS:
[17] In-camera session commenced at 11:55 a.m.
[142] In-camera session ended at 12:56 p.m.
[143] PROCEDURAL MATTERS:
[144] DECISION:
[151] SUBMISSIONS BY MS. DeMARCO:
[170] SUBMISSIONS BY MR. ADAMS:
[186] SUBMISSIONS BY MR. DINGWALL:
[198] SUBMISSIONS BY MS. AITKEN:
[213] SUBMISSIONS BY MR. HOWE:
[233] SUBMISSIONS BY MR. SPROAT:
[257] SUBMISSIONS BY MS. STEWART:
[271] SUBMISSIONS BY MR. CASS:
[278] REPLY SUBMISSIONS BY MS. DeMARCO:
[299] REPLY SUBMISSIONS BY MR. ADAMS:
[317] REPLY SUBMISSIONS BY MR. DINGWALL:
[333] REPLY SUBMISSIONS BY MS. AITKEN:
[351] DECISION:
[385] PROCEDURAL MATTERS:
[393] 
10EXHIBITS


11
12UNDERTAKINGS


13
14--- Upon commencing at 11:00 a.m.
15 MR. BETTS: Thank you everybody. Please be seated.


16 Welcome everybody. We've all had a bit of a break from this hearing, but we are resuming today on day 20 of this application, RP-2002-0133. The matters before us, at least early this morning, involve production of evidence, and I will explain for the transcript that is the reason for the delayed start because there was still some procedural issues and production matters involved with that process.


17PROCEDURAL MATTERS:


18 MR. BETTS: When we parted last, the Board had issued a decision regarding the production of evidence in a motion that was put to the Board. During our adjournment, there has been an agreement reached on how that evidence would be presented to the Board, or at least I should say a proposal presented to the Board.


19 We do appreciate the efforts made by the producing party to meet the Board's evidentiary needs, by the way. The details of that proposal basically are as follows and I'll present those for the record. It was proposed that the unredacted transactional documents between CWLP and CWI will be produced in confidence to the OEB panel on Tuesday, May 20th; the Board will hear submissions from the responding parties with regard to confidentiality and relevance of the documents or portions thereof. If the Board decides the documents are not confidential, they will be sealed and will remain with the panel pending the outcome of the court proceedings. If the Board determines that the documents are confidential, the Board will require anyone seeking copies of them to sign a confidentiality agreement and personal undertaking, and will require that the portion of the hearing in which the documents are discussed to be held in camera.


20 Any non-moving party which seeks access to the documents will be required to apply to the panel. The panel will determine entitlement to access on a need-to-know basis. If the panel allows any such application, the non-moving parties will be required to sign a confidentiality agreement and a personal undertaking, and the summons will be withdrawn.


21 As a result of that proposal, in fact, the Board withdrew the summonses to two parties on Friday, I guess that would be May 16th.


22 Based upon that proposal, it's the Board's intent to move very shortly into an in-camera session to consider the confidential nature and, in fact, the relevancy of the evidence that has been presented to it and we have not had a time to digest or understand, but it is here with us at this point.


23 That in-camera session would be restricted to the moving parties and the producing parties to deal, again, with the questions of relevance and confidentiality.


24 With respect to that procedure, are there any submissions?


25 MR. MacODRUM: Mr. Chairman, are you going to invite the proponents of this agreement to place on the public record their reasons why you feel you should give weight to the agreement?


26 MR. BETTS: Mr. MacOdrum, we've dealt with two decisions on this matter already and in each case -- well, in the last case anyway we established a procedure for dealing with the evidence that has been requested by the Board, and it involved a series of dates including filing of the evidence and then submissions on request for confidentiality and then responses to those requests, and that was basically to be concluded by this date.


27 Those dates have not necessarily been achieved at this point, but basically the procedure still remains the same. It was the Board's intent to have the issue of relevance and confidentiality dealt with by the moving and producing parties. And that would be dealt with in a confidential forum.


28 MR. MacODRUM: So do I understand correctly, Mr. Chair, that the Board then is not going to deal with any further with the merits, or put on the public record the basis upon which your summonses were withdrawn other than just the contents of this agreement which you have summarized?


29 MR. BETTS: I can only say that the Board is prepared to hear the initial arguments on confidentiality and relevance in a closed session, in camera. What happens after that, the Board has not decided.


30 MS. AITKEN: If I may, it's Melanie Aitken for Direct Energy here in the back row.


31 MR. BETTS: Wave a hand there. Okay, thank you. Your name again, I'm sorry?


32 MS. AITKEN: It's Melanie Aitken, I'm here for Direct Energy. I have a brief point to make at the outset just to be clear Direct Energy would not be taking a position challenging the request for confidentiality protection for documents otherwise relevant and appropriate to be produced and with respect to which Accenture, or whichever moving party may be seeking confidentiality protection.


33 Our submission is rather that due to the interrelated nature of confidentiality and the access question which, as I understand from your remarks, would be dealt with subsequent to confidentiality, compels that counsel at least for the parties that would be seeking access be entitled to be present.


34 I appreciate that the Board's orders did already contemplate a procedure for dealing with relevance and confidentiality which would have excluded non-parties, non-moving parties, but just -- and made no reference, it would seem, to rule 10 of the rules which seem to me in any event on their face to contemplate that any party, including intervenors, would have an opportunity to participate in objecting to any claim to confidentiality.


35 That road may already have been crossed, but I bring it to your attention in submitting that counsel to those parties who would be seeking access be entitled to be present to observe the argument that's made in connection with seeking the confidentiality protection. And that's particularly so in light of the fact that the relevance, in fact, even of some of the documents that have been provided to you, as I understand it from your remarks, may be debated.


36 I guess a final point and probably the most fundamental one from Direct Energy's perspective is that if any of the parties who are here exclusively seeking access are entitled to be present, that certainly Direct Energy be granted such corresponding access.


37 MR. BETTS: Thank you. And just further to your remarks if I didn't make it clear, you were correct in stating that the issue of access would be handled separately and following any decisions on relevance and confidentiality. It may not be part of the same decision.


38 Any further submissions?


39 MR. DINGWALL: I'm wondering, sir, whether or not my submissions might be moot in respect of your last statement, but I would suggest that the panel consider the on-going interest in procedural submissions. If there is a decision by the panel which grants access to confidential information, an in camera session is going forward, and those additional parties walk into the room having not had the history lesson of dealing with the historical arguments raised in terms of relevance and confidentiality, that may not be as efficient a procedural perspective.


40 So my suggestion would be that the Board consider, as much as Ms. Aitken was suggesting, that the additional applying parties have access to the in-camera session just to help move along the procedural efficiencies. Whether or not you seek to hear argument from these parties can be something that you deal with perhaps by allowing these parties access, if you will, to the in-camera session merely as observers without the ability to make argument in terms of the confidentiality of relevance boundaries, but with respect to being in the room at the time, sir. I think that would provide significant procedural efficiencies as well as a good basis of context for all the additional parties.


41 MR. BETTS: I'm certainly hearing some submissions requesting additional or at least counsel and in one case perhaps a little bit broader involvement in the in-camera session to begin very shortly.


42 Are there any further submissions with respect to that?


43 MS. DeMARCO: Thank you, Mr. Chair. Elizabeth DeMarco on behalf of CEED. I would like to, on behalf of CEED, echo the submissions of Direct Energy. We have no objection at this point to confidentiality of the documents in question. We are concerned that to sever the confidentiality and relevance question from the access question may be artificial at this point and challenging to the procedural rights and natural justice rights of a number of parties present who would and may be affected by the substance of those discussions as they relate to the later issues of access to the outsourcing hearing issues.


44 MR. BETTS: Any further submissions?


45 MR. ADAMS: Mr. Chairman, one brief submission.


46 MR. BETTS: I need to see -- I hear the voice.


47 MR. ADAMS: Behind Mr. Janigan's head here.


48 Separating the access from the confidentiality questions makes it difficult for intervenors that have interests to follow along. We don't intend to play an active role in the discussion of the motion, but we would like to be part of the record. And as we identified in our letter to the Board on Friday, we're prepared to comply with any of the confidentiality requirements that the board imposes. We think it would just be more efficient if we were allowed to participate in the full process.


49 MR. BETTS: Thank you, Mr. Adams. Any other submissions?


50 MR. SPROAT: Mr. Chairman, I have a submission in response, if that's appropriate at this stage. I don't know whether anyone else is supporting it.


51 MR. BETTS: Is there anything further in support of that position before I hear a response? Then please respond?


52 MR. SPROAT: Thank you, Mr. Chair.


53 We've obviously struggled at some length in dealing with these documents and the Board has heard a number of submissions that I've made and other parties with a similar interest have made respecting the confidentiality and the sensitivity of these documents and indeed, as you know, an appeal was taken by the parties relating to at least in part the obligation to produce these documents.


54 Now, as a result of discussions last week and previous discussions that have taken place with Board counsel and the intervenors, we came to a procedure, I would call it, whereby we thought that we could meet the needs of the Board to have access to this information while addressing the very significant confidentiality concerns of my clients, CWLP, CWI and others. And as I am hearing the arguments that are being put to you, it's suggesting there might be some greater efficiency in expanding the scope of people who are privy to the argument respecting confidentiality.


55 In my submission that's not the case and in any event, whatever efficiencies are argued for shouldn't lead the Board, at this stage, to expand the people with access to the in camera argument that will take place, and in my submission, it actually would be of assistance to the Board to be able to hear these submissions respecting confidentiality respecting relevance to have the documents in front of you because to some extent, I think that some of the concerns raised by parties such as Direct Energy may be put in context, if not eliminated, depending upon how the Board views what should be produced to the moving parties.


56 So in my submission, the process wouldn't be assisted and that we should simply proceed to the in camera submissions in the presence of the moving parties and the producing parties and then as a logical next step consider submissions by other parties who wish to have access to confidential documents.


57 Those are my submissions.


58 MR. BETTS: Thank you, Mr. Sproat.


59 Mr. Howe, did you have something?


60 MR. HOWE: Yes, Mr. Chairman. My submission is that the issue of access has virtually been decided already by the Board in its May 1st order. At paragraphs 288 and 289 of the May 1st order, the Board held, first of all, that a need of the transactional documents. It recognized at paragraph 288, my client's justifiable concern about public disclosure of the transactional documents. The Board went on to hold at paragraph 289 as follows:


61 "However, the Board, in its production order, is not requiring public disclosure. The production is confined to a limited number of specific individuals who have signed and are subject to the terms of an undertaking to maintain the confidentiality of any documents produced to them. The specifics of what needs to be kept confidential when the proceeding resumes will be dealt with in the procedure that will be addressed later in this decision.


62 The Board will require CWLP to produce the transactional documents to the moving parties on the same confidential basis required by the Board's previous production order."


63 Now, I would submit, stopping there for just a moment, sir, that this is really, the process that we're engaged in now is really in fulfillment of that order, there have been some proceedings back and forth since then, but we're coming forward producing the transactional documents.


64 So I would submit that the process has already been determined by the Board. The Board, as you may recall, in its May 1st order set out an access process, if you will, once this process has been determined. So I think my friends who are representing the non-moving parties are being premature.


65 MR. BETTS: And at this point when you refer to access, you're really referring to preliminary access prior to a determination of both relevance and confidentiality?


66 MR. HOWE: Yes, sir.


67 MR. BETTS: Thank you. Any further submissions in response to this position?


68 MS. STEWART: Mr. Chairman, very briefly on behalf of the Enbridge non-party producing parties on the motion, I just wanted to record our support and agreement with the positions put forward by Mr. Sproat and Mr. Howe.


69 As you have described it from the outset this morning, the Board has certain evidentiary needs and in my submission it's appropriate that the panel consider the documentation in the format and along the lines of the procedure outlined by the panel, and that after that determination is made, then the issue of wider access can be addressed.


70 MR. BETTS: Thank you, Ms. Stewart.


71 Any further submissions on this request?


72 MS. DeMARCO: Mr. Chairman, if I could just -- it's Elizabeth DeMarco on behalf of CEED. I think you crystallized the issue the first time better than I did as preliminary access and subsequent access. Really what we are talking about is access and its full range and meaning and as a result, this is why I think both CEED and a number of the other parties that are now applying for access in its fullest meaning do request to be present for these discussions.


73 MR. BETTS: Thank you. We will pause for just a moment. I don't think we're going to have to ask for an adjournment, but we'll conclude that shortly.


74 [The Board confers]


75 MR. BETTS: Before we make a decision on this, I have a question for the producing parties. There was at least one of the intervenors suggested that perhaps counsel only could be included in this session. I didn't hear your position on that proposal. And do you need a moment to think about that?


76 MR. SPROAT: Mr. Chairman, our position is that at this stage it would be premature even to have counsel involved in that discussion and for the same reasons previously submitted. Our position is that it should proceed in camera with the moving parties and not with other parties or their counsel.


77 MR. BETTS: Thank you.


78 Any further submissions from responding parties? Thank you.


79 [The Board confers]


80 MR. BETTS: Thank you. The panel has concluded that it will stand by its previous decision in terms of the methodology for handling this. We will review this, this evidence with the moving parties and the producing parties only, and from -- following that we will then deal with the question of what other parties will have access to the evidence that remains part of the proceeding and that will be the Board's decision on that request.


81 Are there any further submissions on the procedure in general?


82 Yes, Mr. Adams.


83 MR. ADAMS: After you've made the initial ruling on the motion, and if there is further consideration of what access other parties have, how do the parties that are not moving parties participate in that discussion?


84 MR. BETTS: Thank you, and I'll try to make that clear, but please ask questions if it isn't clear.


85 It's the Board's position that we will come out of the closed session or the in-camera session with a decision on the evidence as to relevance and confidentiality. We will then entertain submissions or consider submissions from any other parties who wish to continue as parties to the proceeding from that point forward, and that would obviously include any requests for access that has not previously existed.


86 So that is a matter that will be fully reviewed and, I believe, will be able to be reviewed in public, but I must admit, each step of this procedure is a new one for us, so we'll make those decisions as we go.


87 MR. ADAMS: Thank you.


88 MR. BETTS: And that clarified it, Mr. Adams? Thank you.


89 MR. MacODRUM: Mr. Betts, just to clarify your last comment. So you intend to place your reasons for your decision with respect to confidentiality and relevance on the public record after the in-camera hearing shortly?


90 MR. BETTS: I can't tell you what the nature of that decision will be until we make it, and I only can tell you that the Board respects the fact that reasons are important, particularly to people that are being excluded from the process, but definitely important to the public in general.


91 So we will certainly take that point and consider it very seriously, but I'm sure we will try to give good reasons so that people can understand how we got to that stage.


92 MR. MacODRUM: And those will be on the public record?


93 MR. BETTS: Yes. Our decision will certainly be on the public record.


94 MR. MacODRUM: Thank you.


95 MR. DINGWALL: Given that we're moving to an in-camera session, sir, is there any fixed point in time, either by reference to the determination of the in-camera session or otherwise, that can give the balance of the intervening community some understanding of when there would be a decision on the access question so that we have some certainty as to the process for the balance of the hearing?


96 MR. BETTS: Thank you, and that is a very important point. I will assure everybody that we will not -- we will make every effort to avoid catching anybody outside of their rights and that. I'm not sure what the process might be, and it may very well -- I guess we've done in the past, we've actually taken phone numbers of parties to contact them with ample notice so that they could return.


97 Perhaps before I get into that kind of an intricate process, I wonder if the participants in this in-camera session have any idea on how long it might take to deal with this initial stage? Does anyone want to venture or hazard a guess?


98 MR. SPROAT: Mr. Chairman, in terms of the submissions that we would be making in the in-camera session, we don't anticipate that the submissions would be lengthy, but I would anticipate that the Board would want to take some opportunity to review the documents, and the Board may have questions arising out of that.


99 So in terms of how long the total process would take, I can't give you a reliable estimate; although, I don't think the submissions will be that long.


100 MR. BETTS: Thank you.


101 And Mr. Dominy and I did talk about this, and we are respectful of the fact that if, in fact, we decide that some of this evidence is not relevant, that we will have to take the opportunity to study it pretty closely. And that, in fact, is perhaps the portion of the break that we will be uncertain of. We will want to be very certain that if we're ruling something to be irrelevant that, in fact, it has no relevance.


102 So I am suggesting that we probably don't have an end in sight for this at this point. And perhaps the way that we should be doing this is try to establish a communication system that will allow us to reach those parties that are being excluded from this session.


103 MR. MacODRUM: Mr. Chair, can I suggest that given the current hour and the Board's needs, as well as the needs of the producing parties, it seems to me that it's unlikely that we are going to get fully clear of this issue today. And perhaps if what the Board Staff might do is e-mail us all what the status of the thing -- or this matter is late this evening and could apprise us of whether we are required here tomorrow morning or not.


104 MR. BETTS: Any comments or responses to that suggestion?


105 MR. CASS: Mr. Chairman, if I may at this point on behalf of Enbridge Gas Distribution point out that we do have a large witness panel standing by to testify. As I've been sitting, listening to the comments, I appreciate that it's difficult for anyone to put a real time estimate on how long this is going to take.


106 Picking up on what Mr. MacOdrum said, though, I wonder at this point whether it might be logical to plan to start that witness panel first thing tomorrow morning. That would mean they don't need to sit around today waiting to see what will happen. And perhaps that will help other people as well, like Mr. MacOdrum.


107 I simply throw that out for your consideration, Mr. Chairman.


108 MR. BETTS: Thank you.


109 I think we all, too, are aware of the fact that following this session, there will be a -- or a consideration of access, and I don't know how long that will take either, but that could make it difficult to even predict when we will be able to hear from these witnesses.


110 My hope is that it doesn't take too long. We're spending a lot of time on procedure rather than dealing with the evidence that we should all be hearing, but it does have to be dealt with. We're in a different situation. Any other -- I think at this point I'm leaning towards trying to predict a time that we will return, and perhaps with that, allow parties to contact someone here at the Board to determine whether that target is going to be reached or not.


111 MR. DINGWALL: With respect to that question, sir, I think there are a number of balls up in the air that we might want to identify and then proceed in context.


112 The first of these, of course, is the access question. From what I understand around the room, there are four parties that have requested access. Those requests were unopposed by the company, and it now remains to the Board to determine when they can provide a response and what, if any, other procedure there might be around that.


113 The second ball in the air is the determination of confidentiality and relevance in the in-camera session and whether that generates any requirement on any of the moving parties or additional expanded parties, depending on the timing of the access request, for some delay in the beginning of the panel in order to have an opportunity to review the produced documents. That's another ball that's in the air that needs to be considered.


114 And the third ball in the air is the hearing panel. Is it appropriate or useful to begin dealing with the hearing panel prior to the determination of the previous two questions?


115 And I throw these out, because we are moving into a multi-tiered form of proceeding that has the potential, if many of these balls are left in the air too long, to become either duplicative or overly complex and create multiple streams of information that are going to cause havoc not only with the record, but with the scheduling.


116 So with that, I'm -- I think it might be appropriate to consider prioritizing the access question, prioritizing the scheduling around, perhaps, seeking responses from the parties within the in-camera session of whether or not there would be time required to peruse and to digest the relevant documents, and then to look at what the expected beginning time would be for the next panel, and to receive all of that within that structure.


117 MR. BETTS: Just by way of clarification, just to make certain I have not left any confusion, the order of things will be first for the panel, with the assistance of the moving parties and the producing parties, to determine what evidence will be relevant and what evidence is treated confidentially within that bound.


118 The second matter will be to deal with what other parties will have access to that information and then rightfully, as you have pointed out, the third one will be at what point it is reasonable to hear the evidence from the next witness panel if there is new evidence that comes to light in the documents that we have before us.


119 So that's the steps that we will be following and you're right, at this point I'm not sure of a starting time -- well, the only thing I'm sure of is the starting time for the in-camera session which is going to be shortly. Following that, I'm not certain at this point. Are there any other -- Mr. Thompson?


120 MR. THOMPSON: I would like to make this, perhaps, practical suggestion with respect to the process. That you conduct your in-camera session as you proposed; that's obviously going to take time for you to render your decision there, and you may have to reserve. Then proceed to the access question.


121 But I'm with Mr. Cass, I think you should deal with access in the context of all the information that has already been delivered, holding on this Accenture business, and we could start the panel. There has been a lot of information produced. We could start the panel, I would agree with Mr. Cass, hopefully no later than tomorrow and get on with what's on the record and if the Accenture/CWI piece is delayed, we may have to deal with that later.


122 I'm suggesting we ought not to wait until the Accenture/CWLP piece has been decided before starting the panel.


123 MR. BETTS: Thank you.


124 Mr. Brett?


125 MR. BRETT: Yes, Mr. Chairman. I feel a bit differently about that issue. I think we should only start the panel if it's clear that we would have the opportunity to re-examine the panel on the information that came to light. Because it seems to me that information that flows from those transactional documents is quite likely to be additional and somewhat different from what we have to date.


126 So I don't have a problem with starting the panel, but I would have a problem if we were to say that was the only opportunity we would have because it's going to take some time for us to, assuming that you find some of these documents are relevant, it's going to take some time for the intervenors to review those documents.


127 Thank you.


128 MR. BETTS: Thank you. We'll pause for just a moment.


129 [The Board confers]


130 MR. BETTS: Okay. Are there any final comments before we take a position on this?


131 What we have concluded from all of this is that if it's reasonable to allow the witness panel to leave for today. We will have them sit tomorrow morning. We will allow intervenors to recall those witnesses if, in their analysis of any new evidence, they discover something that they weren't aware of and failed to ask the question at that time.


132 We are going to, as a panel, attempt to deal with the submissions and, in fact, make a decision by 3:00 this afternoon. I'm going to ask all of you to call in to Mr. Colin Schuch's telephone by perhaps 2:30 this afternoon for confirmation of the time, and if the panel feels that it cannot conclude its responsibilities by 3:00, there will be a message on Mr. Schuch's line that will indicate an update.


133 So Mr. Schuch, could I get your telephone number for the record?


134 MR. SCHUCH: It's 440-8105.


135 MR. BETTS: 440-81 --


136 MR. SCHUCH: 05.


137 MR. BETTS: 05. If you please call that number around 2:30, we will have an update, but our target will be a 3:00 start. At 3:00, we will be rendering a decision and we will then be entertaining requests for access.


138 Any further procedural matters? Then I would ask -- sorry, Ms. DeMarco?


139 MS. DeMARCO: Just a clarification. The access submissions will be made today at 3:00?


140 MR. BETTS: That's our target at this point. Assuming that we can make our initial decision, that's what we'll do.


141 Any further submissions or questions? Then I would ask all those that are not either defined as moving party or producing party to leave at this point, and my hope is we will see you at 3:00 this afternoon. Thank you.


142In-camera session commenced at 11:55 a.m.


143In-camera session ended at 12:56 p.m.


144PROCEDURAL MATTERS:


145 MR. BETTS: So we are now back in open session.


146 The panel will consider the submissions they have received in camera with respect to the submitted evidence. We are aiming to reconvene at 3:00 this afternoon. And at that point, we will adjourn until three.


147--- Luncheon recess taken at 12:57 p.m.
148--- On resuming at 3:50 p.m.
149 MR. BETTS: Thank you everybody. Please be seated.


150 MR. BETTS: Thank you. The Board has concluded its consideration of the question dealt with before break and is prepared to render its decision.


151DECISION:


152 MR. BETTS: As a result of its previous orders, the Board has received a number of orders for which confidentiality has been requested. Most of these documents were delivered to the Board on May 5th, 2003, with the exception of the CWI/CWLP transactional documents, which were produced today.


153 The Board received submissions in writing with respect to the request for confidentiality for those documents that were delivered earlier. Those submissions came from the counsel of EGDI on behalf of the producing parties in a letter in a letter dated May 14th, 2003, and from counsel for CAC on behalf of IGUA, and VECC, and CAC, and from counsel for OPSBA. Oral submissions with respect to the request for confidentiality for the CWI/CWLP transactional documents were presented today. The Board also heard submissions with respect to the relevance of some of the CWI/CWLP transactional documents.


154 Addressing the relevance argument first, the Board has reviewed all of the transactional documents. The Board accepts the argument made by the producing parties and will only require the products of those documents that were highlighted on the index that was provided to the Board by the producing parties, with the addition of those parts of Schedule 3.01 R, that are at least relevant to EGDI. In the Board's view, the other documents are not necessary for the resolution of the issues before the Board.


155 With respect to all documents that have been produced in confidence to date, the producing parties are asking the Board to continue to treat those documents in confidence for the purposes of the record. This request is not opposed by any moving parties; nevertheless, the Board itself must be satisfied that it is appropriate to treat those documents in confidence, given the importance of the principle that hearings ought to be held in public.


156 The Board has reviewed all of the documents in question. Based on its review, the Board is prepared to grant the request for confidentiality. It is clear that the transactional documents are commercially sensitive and, if disclosed, could cause commercial harm to CWI and CWLP. However, the index of documents is not confidential and will be produced on the record. The Board is of the view that this is particularly important in ensuring that those people who follow the Board's proceedings but do not have access to the confidential information will at least have an understanding of the scope of the subject matter upon which the Board has made its confidentiality ruling.


157 The fact that this index is being produced should not be seen as an invitation to parties to make further request for production.


158 The Board is also of the view that it is appropriate to grant the requests for confidentiality with respect to other documents that were produced in confidence, with the exception of that category of documents that are subject to copyright. While the Board understands that third parties may have copyright over this category of documents, there is nothing in the documents that require that they be treated confidentially. Therefore, to the extent that these documents are to be used in the proceeding, the Board will not treat them confidentially.


159 The Board will return the two binders of transactional documents to the producing parties so that a redacted binder can be prepared in accordance with the Board's ruling as quickly as possible. It would assist the Board if the binders were tabbed and the pages numbered.


160 Are there any questions?


161 MR. SPROAT: Mr. Chairman, if I could just ask for clarification on one point, just the base plan we had highlighted and that, in submissions, we had indicated that our position was that it should be redacted to take out information that would relate to parties that are not before the Board, not related to Enbridge. And in listening, making notes of the decision, it just made reference to the highlighted documents and I just wanted to clarify what the intent was with respect to the base plan schedule.


162 MR. BETTS: The Board accepted the producing parties' position on that.


163 MR. SPROAT: Then you also made reference to, my note said adding a part of 3.01 R, or was it complete 3.01 R?


164 MR. BETTS: Just that portion of 3.01 R that related to EGDI.


165 MR. SPROAT: I will have to take a look for that. Thank you very much.


166 MR. BETTS: You're welcome. Are there any other questions? Then that concludes that matter and brings us to the matter of access to the materials that have just been mentioned.


167 At this point, we would entertain submissions from parties. We certainly have some submissions in writing. We would entertain submissions from parties either to supplement those written submissions or fresh ones, indicating their interest to be, to have access to the confidential evidence that has just been discussed. May I have submissions.


168 MS. DeMARCO: Thank you, Mr. Chairman. We have tried to co-ordinate a few of our interests here, and I will first be discussing some of the procedure and common law rights that we feel warrant access for the parties who were not moving parties; secondly, Mr. Adams will address some of the practical issues associated with the need for access; and then finally, Mr. Dingwall will, I understand, address some of the importance of and relevance of access to specifically HVAC.


169 MR. BETTS: Thank you.


170SUBMISSIONS BY MS. DeMARCO:


171 MS. DeMARCO: It's CEED's position, which is adhered to by the parties I just referred to, that it should be provided access to the confidential documents in question and the in-camera portions of the hearing pertaining to such documents. And CEED's position is based on four primary submissions.


172 The first is that CEED's right to intervene would be severely compromised if it was denied access. The second is that producing parties have not discharged their burden of proving that access by only certain intervenors should be denied. The third is on the basis of the absurd consequences that would arise if the Board were to deny access to only certain intervenors in this proceeding. And the fourth is that, if the Board intends to deviate from the fundamental principle which you referred to, that is, the right or the general fundamental basis that hearings be held in public, it has a heightened duty to ensure to the public that all parties, including retail and wholesale market participants are adequately reflected in those in-camera proceedings.


173 If I can start with my first submission, regarding compromising of the procedural rights. The Board granted the full right to intervene to all three parties in question. Pursuant to rule 23 of its Rules of Practice and Procedure, the Board chose not to condition those rights as it's empowered to do by result 23.09. CEED, and several of the other intervenors, chose to participate surgically on issues of particular relevance and not broadly throughout all issues. Specifically, CEED chose to participate on issues 3, 4, and finally issue 8, outsourcing.


174 If the Board were to now limit CEED's ability to participate on issue 8 and fully probe the panel as a result of denying access to both the documents and the portions of the hearing dealing with the documents, it's CEED's submission that it effectively would have its procedural rights denied and its right to be heard by the Board denied.


175 Moving onto the second submission which relates to the producing parties' duty to discharge or prove that access should be denied. The Board set forward procedural avenues whereby parties were required to set forth their applications by May 14th, and any parties who objected to such disclosure or access were required to state such by May 16th. As of May 16th, no objections were received, so the objections that are now being forwarded, we assume, are in contravention of the process stipulated by the Board.


176 In addition, Rule 13.09 of the Board's Rules, and section 3.2.1 of the confidentiality guidelines stipulate that the party requesting to limit or exclude parties from access to that portion of the hearing and/or the documents have the burden of establishing that such access would be harmful to the parties in question. And I want to stipulate that it would be harmful to each party in question.


177 To date, we have heard no reasons from any of the producing parties why access by CEED, by Energy Probe, by HVAC, or by Direct, for that matter, would produce harm or cause harm to the moving parties.


178 Thirdly, if we walk down through this proceeding and into subsequent proceedings, it's CEED's submission that the implications of a ruling where some parties would be provided with access to documents and access to in camera hearing of certain issues and other intervenors would not, would result in absolutely absurd consequences.


179 For example, in this proceeding, in order for parties to ensure that their clients' rights were adequately represented, would it be necessary for the non-moving intervenors to now bring a motion for access to the same documents? In future proceedings, any time an issue of confidentiality arises, would it be necessary for every single intervenor to also be a party to that motion to ensure that its procedural rights are not compromised? Would we now have specific disclosure motions that are attended by some 52 intervenors, all wishing to make specific submissions to ensure that their rights aren't minimized?


180 Finally, CEED submits that if the Board intends to deviate from the general administrative law principle that all hearings should be held in public, the Board has a heightened duty to ensure that all interests are represented. And specifically, it's our submission that those interests include those of retailers and marketers.


181 Certainly, the process and the decisions that are taken during the in-camera proceedings warrant participation from all interests and all stakeholders that are represented before the Board.


182 As a result, CEED submits that parties should be granted access to both the documents in question and the in-camera proceedings to fully scope out and analyze the issues pertaining to outsourcing.


183 MR. BETTS: Thank you, Ms. DeMarco.


184 Thank you. The panel has no questions, Ms. DeMarco.


185 Mr. Adams?


186SUBMISSIONS BY MR. ADAMS:


187 MR. ADAMS: Mr. Chairman, the main thrust of my comments is to endorse the remarks of Ms. DeMarco and the ones that you are going to hear in a minute from Mr. Dingwall.


188 But I want to just add my own voice in a small way to this debate by pointing out that there -- that it seems to me that, really, the core of what is happening in this room is not around the question of confidentiality but really around how outsourcing is going to be managed in the regulatory context.


189 The regulatory process is being tested by outsourcing. The filing of confidential material is a normal part of the regulatory process. It's happened before this Board in recent -- in recent proceedings. Like, for example, the OPG's Bruce lease application, where there was confidential filings. It's happened in other tribunals that functioned in a similar way where Energy Probe has been active, a participant, including access to the confidential materials, for example, the Walkerton inquiry.


190 There are processes and procedures set up to take care of these things. Energy Probe understands them. We've complied with the rules, and so we don't think that there's any -- anything unique about the issue of filing confidential information in this case. What's unique about it is the -- is the attention that has been brought to it by the parties that are associated with the applicant in the case through its outsourcing arrangements.


191 Energy Probe has been active before this Board on natural gas distribution matters since at least 1985, trying to promote the efficient, effective distribution of an environmentally-preferred fuel. We believe that the regulatory process is absolutely central to being able to in the long term ensure the integrity of that process, and that's the motivation for our interventions in these cases.


192 Access to the information, even if it's required, if confidentiality requirements are imposed on it, is key to the ability of our organization to have an effective intervention before the Board.


193 We have been granted full intervenor status. The producing parties have not identified any specific instance in which Energy Probe having access to the confidential information would in any way harm their interests. So we just -- we really don't see any grounds on which we can be legitimately excluded.


194 Thank you.


195 MR. BETTS: Thank you, Mr. Adams. The panel has no questions.


196 Mr. Dingwall?


197 MR. DINGWALL: Thank you, Mr. Chairman.


198SUBMISSIONS BY MR. DINGWALL:


199 MR. DINGWALL: I would like to begin my comments by taking a look at how a similar confidentiality issue came about in this case and how that was resolved.


200 With respect to the Accenture proposal for the DPWAMS issue, there were some concerns raised on the part of the company that that particular proposal had some degree of commercial sensitivity around it. And what was determined through discussion among the parties, some on the record, was that an appropriate way of handling confidentiality in that case was that those parties who had an interest in the document and who were prepared to sign an undertaking and an agreement of confidentiality would then be given access to that document.


201 They would return the document when they were complete with it, and they would use it when necessary to conduct cross-examinations of a panel in camera. Anyone wishing to be in the room at the time that that particular panel was being cross-examined in respect of the document in camera would have to sign a similar undertaking.


202 That seemed to be, in my mind, a very broad and very faithful rendering of the term "confidentiality" in the regulatory construct, according to the Ontario Energy Board rules of procedure.


203 What we have here is a situation where there now appears to be some restriction on the number of parties who might have access to confidential information, and having not seen any reply submissions to date, I'm not sure what the premise for that would be. So I would like to speak with respect to how my own client's specific interests within this hearing relate to the specific confidential information that we're speaking about.


204 The confidential information here that we are talking about are the various agreements relating to the outsourced customer service and billing process, processes provided by CWLP and the other producing party. And these relate to the outsourcing issues associated with Customer Works and as well as terms and conditions and monitoring of subcontractors performing utility functions -- both of which have been issues; since the timing of the first interrogatory, have been near and dear to the heart of HVAC. HVAC, as an intervening group, has been before this Board for close to 10 years with a number of different counsel and has been quite involved in determining, or in focusing on, the issues that are within that important nexus of relevant to the industry and relevant to the parameter of relevance within the hearing, which, in this particular case, the Board has reminded us on a number of occasions, is the cost and other implications to ratepayers.


205 So with respect to the Customer Works documents, what we have raised in argument previously as being part of the relevance and part of our relevance with respect to that, is the potential for cross-subsidization associated with the collection process which is shared by the company, Enbridge Gas Distribution, and an unregulated company, and also what the impact on prioritization of payments received by the utility are on ratepayers.


206 The specific example which I believe came from one HVAC interrogatory was that there is no prioritization. Both Enbridge Gas Distribution and the other company that bills its services through the Enbridge bill received amounts equal on a pro-rata basis each time a customer tenders a dollar. So how is that reflected in the agreements? That's something we're quite curious about. What was the motivation for that? How will that change if Enbridge Gas Distribution's old legacy CIS system -- which, I believe, became part of the CWLP system and remains part of it -- if it's ever adjusted to contemplate prioritization of payments, is there going to be motivation on the company's part to drive for those, if, as is happening on the electricity front, there is some movement on the part of stakeholders to try to convince the Board that that's the appropriate way to allocate payments to -- from end-use customers.


207 So, given those specific suggestions of relevance and also the unique ability of the HVAC Coalition to assist in the testing of evidence with respect to those agreements and with respect to the structures of them, we believe that, certainly, this Coalition is relevant and has a viable interest in adding value to the determination of ratepayer impact of these agreements.


208 On the broader perspective, we also believe that intervenors should not be excluded as a principle when they're perfectly prepared to sign on to whatever confidentiality and non-disclosure documents accompany the tendering of confidential documents before the Board. That would be aberration of process which would undermine the process.


209 Those are my submissions, sir.


210 MR. BETTS: Thank you Mr. Dingwall. And we have no questions, Mr. Dingwall.


211 Other submissions?


212 MS. AITKEN: Yes, Mr. Chairman, Melanie Aitken for Direct Energy.


213SUBMISSIONS BY MS. AITKEN:


214 MS. AITKEN: I adopt my friend's submissions in three respects, and then I have several of my own. Very briefly, I would adopt Ms. DeMarco's submission, with respect to Direct Energy's perception that their procedural rights would be compromised if they were not granted access to these documents and any related in-camera hearings. Similarly, we note that there have been no objections provided to us as to any harm that direct access -- or Direct Energy's, rather, access to the documents might result in; and thirdly, that a ruling omitting some intervenors would not be procedurally sound for the reasons that Ms. DeMarco elaborated upon.


215 Direct Energy, like the others who have made submissions this afternoon, seeks access to all of the documents compelled and access to any in-camera hearings related to those documents. Direct Energy has an interest in the Board's proceedings and therefore in those documents and those hearings.


216 First, among the issues raised by the intervenors is the reasonableness of the price paid by -- to Customer Works by EGD for its customer care services. And, of course, Customer Works also provides customer care services to Direct Energy. And in those circumstances, documents produced by EGD and others in these proceedings may very well reveal commercially sensitive information to Direct Energy, and in such circumstances, in our submission, Direct Energy ought simply as a matter of fairness, to at least be able to monitor the sharing of that information with other industry participants, including some of Direct Energy's competitors, and to test that energy -- or rather, that evidence, if and as appropriate.


217 Second, the HVAC Coalition in this case has challenged the arrangements by which Direct Energy accesses the Enbridge bill. In the volume of costing and other data that we understand has been compelled from EGD and others may very well bear on issues brought to challenge that by the HVAC Coalition.


218 As a general matter, of course, Direct Energy would have a procedural right to access any information that bears on its direct interests, but in this case, it's much simpler. We have direct challenges made by the HVAC Coalition that bring into issues matters that these documents will be relevant to, or may very well be relevant to, in revealing in particular commercially sensitive information belonging to Direct Energy.


219 Direct Energy's submission is, of course, as I have said, that it be granted access to all the documents and all the hearings, but in the alternative, Direct Energy submits that it ought to be provided at the very minimum access that's provided to other parties seeking access here this afternoon.


220 As to a matter that I don't believe my friends have raised, and that is the separation between counsel and clients. Direct Energy would be prepared to limit the access provided to it to its counsel on two conditions: The first is that that be the rule applied to all of those seeking access this afternoon; and secondly, that the Board recognize that if in counsel's view in an extraordinary circumstance, they believe they need to share that information or some particular set of information with their client in order to seek proper instructions, that there be a mechanism in place that the Board would listen to an application for leave to do so.


221 The reason for raising the separation between counsel and client in particular is motivated by Direct Energy's concern that competitors may learn of some of this commercially sensitive information belonging to Direct Energy. In particular, at least one member of the HVAC Coalition, Lennox, is very clear and forthright in his submissions so farther to date. Mr. Bergsma's submissions that Lennox is a direct competitor of Direct Energy. Mr. Bergsma has been very frank and has said his interest in these proceedings has to do with the competitive advantage it perceives Direct Energy has in accessing the Enbridge bill, and also in that Lennox would like to share in that competitive advantage.


222 And in those circumstances, then, it is very clear Lennox is a competitor and accordingly, what Direct Energy would suggest this Board rule is that access be limited to counsel for those parties seeking access this afternoon and in the alternative, at the very least, that access be precluded to competitor members of the HVAC Coalition, insofar at least, as it relates to commercially sensitive information to Direct Energy.


223 So just to sum up, then, Direct Energy seeks direct access to the documents in and the hearings for the reasons that commercially sensitive information may very well be revealed through the sharing of that information; that in such circumstances, Direct Energy ought to have an opportunity to monitor the sharing of that information and to test it, if that's necessary; and finally, it must be able to prepare a response to challenges that have brought against it, specifically by the HVAC Coalition.


224 And as to counsel, as I've said, our suggestion is that access be limited to counsel, and we're perfectly prepared to stand by that, provided, of course, that that's the basis on which the other parties seeking access this afternoon are granted access, and as well, with the caveat that in extraordinary circumstances, there would be a mechanism to seek leave to share that information on a limited basis, to seek instructions.


225 Thank you.


226 MR. BETTS: Thank you. Thank you. We have no questions.


227 Further submissions?


228 MR. DINGWALL: I may have a reply submission to Ms. Aitken's, just with respect to some of the suggestions she's made, but I'm wondering from a procedural point of view if that might be more appropriate coming after any reply submissions on the opposing parties?


229 MR. BETTS: I think if we hear any responses from opposing parties, then perhaps you can reply to everything at that time.


230 So are there any parties that would like to speak in opposition to those submissions?


231 Mr. Howe?


232 MR. HOWE: Certainly I would, sir. I'm sure I will be joined by others, but maybe I can lead off.


233SUBMISSIONS BY MR. HOWE:


234 MR. HOWE: And I would like to begin by cross-referencing the May 1st order of the Board, where the Board was sensitive to the concerns of the producing parties, and, in particular, sensitive to the concerns of my client, CWI.


235 And for those who didn't attend the motion and didn't participate, I would just like to reiterate the fact that CWI is a third party to the process. And Mr. Adams wonders what makes this unique, and certainly CWI takes the position it is in a rather unique position itself.


236 But I would like to begin, in terms of the May 1 order, the Board said that it would be guided by the principle of a strict need-to-know basis in determining whether or not the applications that have just been made would be granted. Not a "need-to-know", but a "strict need-to-know" were the words that the Board used.


237 And a different way of looking at it, I suppose the Board was saying is, What's the value added? I mean, how can your client, the intervenor that you represent, bring something to the table that would otherwise not be at the table as a result of the efforts of the moving parties?


238 And frankly, I didn't hear anything from any of the applicants as to how their interests were different than the moving parties who will be granted access, and we heard nothing about what value added to the process they will bring.


239 To use a word used by my friend Mr. Dingwall, "nexus," he used the term "nexus," but I would use the word and ask the question: What nexus is there that requires your client or you on behalf of your client to have access to this confidential information? And again, I didn't hear anything about that.


240 I heard counsel say that our clients will be prejudiced. We won't be able to fully participate, but that wasn't the test that the Board set out.


241 I suggest to you the Board set out a higher test, a value-added test, a strict need-to-know test. And at the end of the day, the Board will have to weigh the competing demands. And the Board already knows and has made a ruling as to the harm that will occasion to my client in the event that this information is made public or that it be permitted to seep out through the hearing process, either directly or indirectly.


242 And I haven't heard any counsel make a compelling argument that says that they should be entitled to a greater benefit, that their clients' benefits outweigh the harm that will be done to my client.


243 Now, dealing with Ms. DeMarco's points, her first point was that there was -- her right to intervene would be compromised, and to which I say, How is that? Her second point is that the producing parties haven't discharged the burden of denial, to which I say, The Board now has rendered two decisions in that regard, which say that the burden is on her client, not on our clients.


244 She points out to what she had called "absurd consequences" that would result. We say there is nothing absurd about that. A portion of this hearing has already been held in camera. We don't understand how the Board could not accommodate the consequences flowing from a limited access to confidential documents.


245 And her last point was, if the Board intends to deviate from the public theory, it has a heightened duty. And I'm sure the Board is already aware of that. I mean, the Board has now rendered three orders, so the Board is aware of its heightened obligation and has attempted to balance the pros and the cons between the competing sides.


246 She mentioned the fact that there were no objections taken to the May 16th deadline, to which I say, Yes, there were objections taken in the form of the appeals that were launched. Now, as it turned out, the appeals hopefully will become unnecessary by reason of the proposal that was adopted earlier today. But there definitely was a response.


247 Mr. Adams submitted that there would be prejudice to an examination of the outsourcing management in a regulated process, and I remind Mr. Adams, as people are aware of the fact, that there is a panel who will be testifying, hopefully tomorrow morning, and they will talk about outsourcing arrangements. And Mr. Adams and others will be entitled to cross-examine those witnesses about the outsourcing that they were involved in, and he can pursue the issue of the management of outsourcing in a regulated process.


248 Now, Mr. Dingwall and Ms. Aitken come to you and say, We're competitors against each other. And what Ms. Aitken is saying is, If you give it to him, Mr. Dingwall, we want it, too, because he's really interested in it for a competitive reason; and therefore, we want it for competitive reasons, to be able to meet the challenge raised by Mr. Dingwall's client. And that's the exact sort of thing that we're concerned about.


249 In other words, the production of the documents are going to be used for a collateral purpose. The collateral purpose will be to obtain the pricing information and to use that to beat up each other. And I would remind Ms. Aitken that her client is a customer of my client. And so it sort of feeds on itself. In other words, her client may be ultimately prejudiced if all of this information is disgorged, albeit, in camera.


250 And I would respectfully submit that the challenge from HVAC and the need for Direct to monitor that challenge is not relevant in the deliberation of this application.


251 And with respect to Ms. Aitken's comments about a counsel having access to the documents, if the Board is not persuaded by my submissions and the submissions of the other producing parties as to the need to keep this information confidential, then I suppose a default mechanism would be to release the information solely to counsel so that -- although, I'm not suggesting that the Board accept that proposal, as alternative, it has some merit for the Board's consideration.


252 With your indulgence. So in conclusion, gentlemen, I would suggest that none of the applicants have made out a strict need-to-know. They have not demonstrated prejudice. They have not demonstrated how their clients will be benefited at the prejudice of my client. They haven't demonstrated how the moving parties will not be capable of doing the kind of cross-examination that they are capable of. I mean, I think we can take judicial notice of the fact that the moving parties have been part of this process for many for many years; they're all very experienced counsel. They're all very diligent, and no doubt they will be doing their clients a service, and the process a service, in their pursuit of the material.


253 Subject to any questions that you gentlemen may have, I have no further submissions at this time.


254 MR. BETTS: Thank you, Mr. Howe. Thank you. We have no questions Mr. Howe.


255 Further submissions?


256 MR. SPROAT: Yes, Mr. Chairman, if I may, and I will be quite brief.


257SUBMISSIONS BY MR. SPROAT:


258 MR. SPROAT: First of all, I adopt all of the submissions made by Mr. Howe. In my submission, he's quite correct in terms of the onus and he's quite correct in terms of the specific issues he made in relation to the parties that are seeking access.


259 The only point I would like to make is simply the general one that Mr. Howe touched upon at the end. And that is, we have a situation here where we have five moving parties, I believe, who sought this documentation. Given the interests that they represent, they're certainly well positioned to fully explore in evidence the issues that they want to explore in terms of what are called efficiency gains. And, in my submission, there simply is no need-to-know basis upon which to inject additional parties into that process.


260 The default position I would endorse, as Mr. Howe has, that if there's any consideration to going beyond the moving parties in terms of having access to the confidential information, then I would suggest that there should be an undertaking signed along the lines of the undertaking signed in relation to what I think is called the Accenture/WAMS evidence, because there wasn't just a standard undertaking that was signed in that regard, it was a more detailed undertaking.


261 I would suggest that be done as part of the default position, but the primary position is that the parties seeking access simply have not made out a need to know, within the meaning of the Board's previous decisions. Those are my submissions.


262 MR. BETTS: Thank you, Mr. Sproat.


263 [The Board confers]


264 MR. DOMINY: Mr. Sproat and Mr. Howe, your submissions relate to which set of confidential documents, all the confidential documents, or just the transactional agreements?


265 MR. SPROAT: My submissions relate to all the confidential documents, but obviously, of particular concern from my client's perspective are the transactional documents.


266 MR. HOWE: And Mr. Dominy, insofar as my submissions are concerned, technically they're with respect to the transactional documents because those are the only sensitive CWI documents that have been now put before you. But I certainly believe that the submissions could also apply to the other forms of confidential information that have made their way before you in this proceeding, earlier.


267 MR. DOMINY: Thank you.


268 MR. BETTS: Are there further submissions in opposition to the request?


269 Ms. Stewart.


270 MS. STEWART: Thank you, Mr. Chairman.


271SUBMISSIONS BY MS. STEWART:


272 MS. STEWART: Very briefly, I would just indicate my agreement on behalf of the non-parties I represent, with the submissions made by Mr. Howe and Mr. Sproat.


273 The concept of the onus and the application of the onus, in my submission, is a very important one for your determination, in light of your previous order with respect to production of this information. It has been declared by you to be confidential. There is no requirement on the producing parties to demonstrate prejudice. It's clear on its face that every pair of areas that is allowed to review the review the documents erodes the confidential nature of the documentation and as a result, it is a burden upon the parties seeking access to the documents which must be discharged, not the other way around.


274 And with respect to the question raised a few moments ago by the panel, logically, the same consideration applies to all of the confidential documents, not only the CWI transactional documents. And in my submission, the onus -- which is a heavy one, to demonstrate on a strict need-to-know basis, an argument for access -- that onus has not been discharged.


275 MR. BETTS: Thank you. Thank you. The panel has no questions. Any further submissions?


276 Mr. Cass.


277 MR. CASS: Mr. Chairman, I had a series of observations, if I may, and they will be brief.


278SUBMISSIONS BY MR. CASS:


279 MR. CASS: This process of disclosing the documents in issue, as everyone knows, began with a motion brought during the course of the hearing.


280 The motion and the parties in support of the motion was described in the Board's first decision. There were five moving parties identified in the Board's first decision: CAC, IGUA, VECC and the two schools groups. Those five groups all share something in common. What they share is that the interests or constituencies that they say to the Board they speak on behalf of is a ratepayer sort of interest or constituency, in each of the five cases.


281 The other aspect of the motion that everyone will recall is that, as has already been alluded to, the basis of the motion was that the information was appropriate to the issue raised by intervenors about efficiency gains achieved during the course of the targeted performance-based regulation plan. The argument is that the outcome of some determination of efficiency gains would go into an O&M deferral account, which ultimately would affect rates.


282 Now, of course, the Board is well aware that the company does not agree with that position, but it's clearly, to the extent that it has legitimacy a ratepayer sort of issue if, in fact, there is something to eventually go into the deferral account that would have an impact on rates.


283 Now, if we look at the next level that we have reached and compare the parties that are now making submissions to the Board for access, we're looking, in my submission, at a different group of parties than those that were the original group of moving parties. We have commercial interests now addressing the Board as represented, for example, by CEED and by the HVAC Coalition. No submissions were addressed to the Board as to how these commercial interests really have something useful or have a real interest in relation to the determination of these alleged efficiency gains, which, if found by the Board, would go into the deferral account.


284 Now, HVAC, through Mr. Dingwall in particular, I noticed during its submissions, attempted to cloak itself in the interest of the ratepayer and made a submission to the effect that HVAC would assist the Board in understanding the ratepayers' interests.


285 Well, the fact that HVAC Coalition's counsel found it necessary to make that sort of submission underlines the point that I'm making, that these parties with commercial interests are now trying to jump on the bandwagon in relation to an issue raised by groups representing ratepayer interests.


286 I ask the Board, though, to consider how HVAC Coalition has explained its ability to represent ratepayers' interests in relation to such an issue better than the moving parties themselves, who are, in fact, the parties here who come to the Board to take positions on behalf of ratepayers. So I'm just attempting to draw a comparison here between the moving parties and the parties who are now making submissions in relation to access.


287 And the final observation I want to make, Mr. Chairman, if I may, relates to a submission, again made by Mr. Dingwall, but I think also -- although, I didn't get a note of it -- I think also a feature of Ms. DeMarco's submissions. As Mr. Dingwall put it, it was intervenors should not be excluded as a principle, the notion being, I take it, that on principle, intervenors should have full access to all information, even confidential information.


288 I urge the Board to think carefully about that as a general proposition. What that says is that somebody whose interest is really just access to information, say a competitor of a service provider, could come here to the Board, say, Well, we're going to help the Board understand ratepayers' interests; we know all about this; we're a competitor of a service provider; give us intervenor status.


289 And then having been granted that status, if his submission is correct, it would automatically follow that such parties cannot be excluded from access to any information through the course of the proceeding, even confidential information in relation to that very service provider that the party is a competitor to.


290 So I'm merely urging the Board to be very cautious with this notion that once somebody gets past the intervenor status hurdle that it's automatic that information should be available, even confidential information of the nature that we're discussing now.


291 And those were the observations I wished to make, Mr. Chairman. Thank you.


292 MR. BETTS: Thank you.


293 [The Board confers]


294 MR. BETTS: Thank you. No questions.


295 Are there any further submissions before I ask for reply submissions from the initial parties?


296 MS. DeMARCO: I would like to follow up -- I apologize, Mr. Chair. I would like to follow up if there are no further submissions --


297 MR. BETTS: And we'll just see if there is anything else from anybody.


298 Then please proceed, Ms. DeMarco.


299REPLY SUBMISSIONS BY MS. DeMARCO:


300 MS. DeMARCO: I'd just like to address a few points that my friends have raised specifically in relation to Mr. Howe's submission that there is no value added by having any marketers or retailers having access to the information in question.


301 Specific to CEED, it produced evidence in the RP-2001-0032 proceeding specific to the outsourcing issue. It examined panels quite extensively regarding information sharing between affiliates and obtained specific decisions from the Board and commitments from the company that it would, in fact, take steps to address the dangers of information sharing among affiliates.


302 It's CEED's interest in ensuring that that decision, the portions of the decision are implemented, that bring it to this proceeding to intervene on issue 8 and outsourcing.


303 At this point, to allow it to ask interrogatories on the issue, to allow it to participate in the settlement conference pertaining to this issue, and then to deny its right to effectively cross-examine and participate in the hearing pertaining to outsourcing certainly would be a procedural injustice, in CEED's submission.


304 Just as a note, if the parties who are applying now for access are all denied access to such documents, the in-camera proceeding will take place in the absence of any marketer or retailer voice. Clearly, this cannot be truly reflective of the entire basis of stakeholders that the Board has an interest in protecting. And I might remind the Board of its objective to facilitate competition in the sale and distribution of natural gas -- or in the sale of natural gas.


305 Secondly, pertaining to Mr. Howe's submission regarding the May 1st and follow-up May 8th Order, I find his submissions curious in that on the one hand, he seeks the Board to take a very strict, literal interpretation of the provisions pertaining to need-to-know, and on the other hand, he seeks the Board to take a very lax interpretation of the process that it set up. In fact, the May 16th deadline should be interpreted very loosely as a non-deadline. I find it difficult to see how my friend's submissions could have it both ways.


306 Thirdly, all of the parties opposing access made reference to the reverse onus, and nowhere in the Board's order or the May 8th follow-up letter do I see specific reference that the Board indicates it is now the applying party's burden to demonstrate that it should have access, and the company has no longer the burden to establish that access must be denied.


307 To do so is certainly a very large procedural jump. To make that argument is a large jump and contrary to the principles that we do see as a basis of administrative law.


308 And Mr. Cass finally sought to minimize the concerns of the companies involved in the applying process right now, saying that this is purely a ratepayer issue, and there really is no fundamental principle of access. And if I could, and I'd undertake to produce what I'm reading from, which is "Administrative Law in Canada" by Sarah Blake, for the Board. She states quite clearly that:


309 "It is a basic principle that all hearings should be held in public. The public has an interest in seeing that proceedings are properly conducted and that parties are treated fairly. Public hearings are a safeguard against covert dealing beyond the scrutiny of the public or the press."


310 We'd ask that the Board uphold the principle, long-standing principle of administrative law, and allow the applying parties access to the portion of the hearing and the documents in question.


311 MR. BETTS: That concludes your submission, Ms. DeMarco? Just one second.


312 Ms. DeMarco one question: There has been mention made by several parties about a possible alternative of counsel representatives only. Do you have a position on that?


313 MS. DeMARCO: We have no objection to proceeding in that manner.


314 MR. BETTS: Thank you.


315 Mr. Adams, did you wish to reply to submissions?


316 MR. ADAMS: Yes, Mr. Chairman. I wish to reply on three points.


317REPLY SUBMISSIONS BY MR. ADAMS:


318 MR. ADAMS: One is to comment on Energy Probe's interest in full participation, second, is to respond to the vague suggestion initiated by Mr. Howe and seconded by one of the other counsel suggesting that there would be some collateral purpose or that information might seep out. And finally, to reply to this suggestion that counsel only be permitted to participate if there's any disclosure.


319 On the first point, Energy Probe began advocating before this Board the introduction of incentive regulation back in the late 1980s, and we have grown to have some dismay over our own advice. The behaviour of some of the regulated firms that have appeared -- that are subject to this Board's jurisdiction, and the evolution of PBR has gone in directions that we, you know, really draw into question whether this whole exercise has been worthwhile.


320 Energy Probe is active to a greater extent than any of the other parties appearing before the Board in this proceeding in speaking directly to the public, providing advice to consumers on their energy interests in natural gas and other commodities.


321 We have -- our interest in this particular issue was heightened by the Board's own decision in the previous case, where the Board commented that this drift towards -- this corporate strategies around outsourcing was leading to the creation of a virtual utility.


322 So we think that Energy Probe's long-term interest in the integrity of the regulatory process really is responsive to the Board's request that the parties identify their need to know.


323 Secondly, my second point is to respond to this vague suggestion from -- initiated by Mr. Howe that there would be in some way -- by permitting our organization to participate in the proceeding could allow information to seep out. Mr. Howe has long enough and extensive enough experience in these matters to realize that Energy Probe has never allowed information that we've agreed to keep confidential to seep out, and that Energy Probe does not have a collateral or commercial purpose in seeking access to the information.


324 My final point is that -- is to respond to the suggestion that counsel only be permitted to view the documents. This would be an inconvenience for our organization. We do not have active counsel that's working on this case at this time. We had intended to pursue our intervention in that way. If counsel only are permitted, then we will have to restructure our intervention and at greater cost. It would be inconvenient. We could deal with it, but it is definitely not a preferred alternative nor a necessary alternative, because we are in a position -- we have -- to sign whatever -- or to come to whatever the necessary arrangements are around confidentiality.


325 And based on our reputation, we think there's no justifiable reason to consider us a risk, that there would be any seepage of information, to use the term that Mr. Howe introduced.


326 Thank you.


327 MR. BETTS: Thank you, Mr. Adams. No questions.


328 Mr. Dingwall?


329 MR. DINGWALL: Thank you, sir.


330 To the extent that any comments that Ms. Aitken might make on behalf of Direct Energy have any, sort of, rebuttal or any aspect related there, as there seems to be some imputation that this is a competitive dispute, I'd like to reserve the opportunity to respond to her comments, if I may, subject to the Board's approval, of course.


331 MR. BETTS: We'll consider that. Thank you.


332 MR. DINGWALL: Certainly, sir.


333REPLY SUBMISSIONS BY MR. DINGWALL:


334 MR. DINGWALL: The first point I'd like to address is the point that's been made by -- about the categorization that's been made by a number of parties that this is a competitive dispute between competitors, and that's not the case.


335 What -- the Board has been quite clear in reminding parties throughout this, as the issues of boundaries have come forward, is that what is at issue in this case is the ratepayer impact of the outsourcing arrangements, specifically with respect to Customer Works and the other outsourced functions.


336 That being the case, the HVAC Coalition has specifically raised a number of issues, which have not been taken up by other intervenors. These include the allocation of payments, the fact that customers receive disconnection notices, which include non-regulated charges, the fact that HVAC has a concern that there may be cross-subsidies arising out of the arrangement between CWLP and Enbridge Gas Distribution, again, which has not been taken up by other parties.


337 Given that there's a specific concern that this Coalition is focused upon that is beyond what has been expressed as desired issues of the moving parties, that we believe we have got a unique not only focus, but ability to assist with respect to that focus in the ongoing examination of the issues related to Customer Works.


338 Now, with respect to the suggestion that there be some sort of separation of the ideologies of the moving parties versus those parties who are now seeking access, I'd like to state that it's really more an accident of history as to who becomes -- who became a moving party to this motion versus who was not, depending on who was in the room at the time.


339 Intervenors are reminded constantly to be judicious with their timing and with their costs and with their participation in the hearing. It's been the expectation of everybody at this room who has made a submission for additional -- for access to these documents and for these sessions that there's never been a limitation of that point in the past. The broad interpretation of confidentiality before this tribunal in the past has been that if a document is confidential, it is confidential. That does not mean that the number of people within the room becomes limited, unless they're unwilling to accept the parameters of confidentiality associated with that.


340 So distinguishing moving parties versus those who are seeking access to the information at this time really is not an effective categorization.


341 Now, with respect to the process, there has been some suggestion by a number of parties that these documents may contain elements that are commercially sensitive. I notice in looking at the Board's rules with respect to confidentiality that the Board has three options open.


342 The first option would be to reject whether or not a document in question might be confidential. The second would be to accept the confidentiality of a document, and the third would be to direct the filing of a document with whatever confidential portions of the document might exist taken out, which has not been canvassed with respect to today's decision in respect to specific documents.


343 Many regulatory bodies in the energy industry, the Georgia Public Service Commission for one, require upon the filing of confidential documents the suggestion by a producing party of what the non-confidential portion would be in a separate filing, so there's a public filing and a confidential filing.


344 I don't know what information either Ms. Aitken or Mr. Howe or Mr. Sproat or their clients purport to be commercially sensitive. I have not seen it. At this point, only the Board and the specific producing parties have seen that information. So with respect to how that specific information best be treated in order to ensure the fluidity of the hearing and reduce the need for ongoing interlocutory discussions, I leave it to the Board to consider the third alternative which hasn't been considered to date.


345 With respect to the ongoing process of the hearing and the suggestion that if access were to be granted that there be some consideration of the limitation to counsel, that's certainly a fair limitation if there are concerns that there are commercial sensitivities which might be raised through the dissemination of confidential information.


346 And if that is a concern, and a legitimate concern, then that on a case-by-case basis, if there's a suggestion that a specific document have a commercial sensitivity, that might on a case-by-case basis require or support any direction from the Board that there be a limitation of those documents to counsel. But as counsel for a coalition which has a case manager who is not an employee of a competitor, I would suggest that a broader approach be taken and that it be incumbent upon the producing parties or any other party who believes that there might be commercial sensitivity to then identify what portions of a document to be produced might have a degree of commercial sensitivity attached to them, and then those documents be limited specifically to counsel, there be a broader consideration of confidentiality on that basis.


347 And those are my submissions, sir.


348 MR. BETTS: Thank you. Thank you, Mr. Dingwall. No questions.


349 Ms. Aitken?


350 MS. AITKEN: Thank you.


351REPLY SUBMISSIONS BY MS. AITKEN:


352 MS. AITKEN: I just have a very few brief points to make.


353 The first is, with respect, Mr. Howe's argument starts from a flawed premise. He states the test on this motion for access to be, if I've got my notes right here, whether the parties have value to add and how can that intervenor bring something to the table that wouldn't otherwise be there.


354 With respect, that's not the test to seek access to documents being produced in an ongoing proceeding with respect to which a party has status, namely, as intervenors. The question here is: How do we protect against intervenors' rights being prejudiced when their legitimate interests have been brought into issue and are at stake? In any event, whatever the test is, that test has to give way to the demands of natural justice.


355 And that takes me to my second point in response to Mr. Howe, and that is he says that the parties have not -- or rather, the intervening parties moving this afternoon have not demonstrated that their interests are affected. Well, certainly, on the part of Direct Energy, I believe I have submitted at some length now that the information contained, as we can understand from the broad parameters of the description of the documents, might very well reveal information regarding the costing of Direct Energy's services as provided by Customer Works. And whether that information is provided directly or can simply be derived from taking totals and subtracting EGD's portion therefrom, is something, obviously, that Direct Energy cannot speak to at this point, having been excluded this morning.


356 But there is a very obvious and very real risk in that information being revealed in the course of proceedings through these confidential documents, and the way that that impacts, obviously, on Direct Energy's interest is that if such confidential and commercially-sensitive information pertaining to Direct Energy is going to be shared with others, others in the industry and potentially others of its competitors, Direct Energy ought at least to have an opportunity to be here, to watch what happens with the sharing of the information, to test it if necessary, to supplement it and make it clear that it's misleading if necessary, all host of possible considerations.


357 The commercial interest with respect to which Mr. Howe pointed attention, isn't, in my submission, correctly characterized. But in any event, the challenges, which I don't purport -- propose to go into in any detail, made by the HVAC Coalition with respect to some sort of cross-subsidization or whatnot, are simply matters that Direct Energy's commercial interests have been engaged.


358 There have been challenges made with respect to the appropriateness of the arrangements entered into by Direct Energy to access the Enbridge bill. In such circumstances, when Direct Energy's commercial interests have been so directly engaged, there is a natural justice right for Direct Energy to be able to prepare itself, to furnish itself with whatever may be available. And with respect, it's the Board's obligation to allow Direct Energy to be furnished with the material it requires to prepare a full and proper response to those challenges.


359 But as I said, that is a second reason, not the only reason. There is a very clear, direct relationship with respect to the risk and prospect of commercial harm to Direct Energy, merely by the disclosure of information which may contain commercially-sensitive information to Direct Energy on its costs, for example.


360 The third point, a very brief one, Mr. Howe suggests that we should get some comfort from the fact that there will be an Enbridge panel here tomorrow to be questioned extensively on outsourcing. He was responding in particular, I believe, to a submission made by Energy Probe. But in any event, that glosses over the very point. Presumably, if in the course of examining the panel tomorrow, documents, which are currently protected by confidentiality designations, are brought into issue, are triggered, are somehow implicated, presumably the parties who are here seeking access this afternoon will be asked again to leave the room. And so any comfort there is illusory, in my respectful submission.


361 Fourth, I want to thank Mr. Howe for his very friendly reminder that we are a customer. I'm not sure exactly how that's relevant to suggesting that we ought not to have access, but in any event, let me be clear: Direct Energy is not seeking these documents for any competitive reasons. Direct Energy has a legitimate concern that commercially-competitive information about its costs will be revealed in the course of these proceedings, and it has a natural justice right simply to be here while that's happening and to safeguard or do whatever it can at least to try to safeguard its competitive interests.


362 Fifth, it's no answer, in my respectful submission, for the producing parties to say that there's capable counsel, which I'm quite confident there are, here on behalf of the moving parties that can effectively cross-examine on the pertinent points. All the counsel here representing their clients have a duty and a right to seek an opportunity to make submissions on their respective clients' parts.


363 And finally, just with respect to the counsel-only proposal, I would simply respond to say that to the extent that might be treated on a case-by-case basis, at least at first instance, therefore, the disclosure, if that was the route the Board chose to take, should be exclusively to counsel, and then whatever steps needed to be taken, if that was appropriate, from your ruling could be taken with respect to further disclosure.


364 But that the first instance position should be it is counsel-only, and then at the very least, an opportunity given to those who say -- those who claim confidentiality or commercial sensitivity to identify those subportions that require continuing protection.


365 Thank you. Those are my submissions.


366 MR. BETTS: Thank you.


367 [The Board confers]


368 MR. BETTS: Ms. Aitken, I just have one question.


369 Certainly, you have expressed your concerns very clearly about the potential of some items being discussed that could relate to your client within the environment of a closed or in-camera session, and that concern has caused you to seek a different status. Can you tell me how that would be different from the concerns expressed by the producing parties with respect to the information and concerns they have about the information being brought forward in the same environment? How do you feel that there's any more protection provided by the second level of involvement?


370 In other words, if I can express it -- maybe you have understood me, but we have had some parties say, We don't want this to be any bigger because we're concerned about it being able to be maintained. You have indicated that -- the same concern in many ways but, therefore, that you want to be involved, so you can protect your interests. Can you address my concern?


371 MS. AITKEN: I can certainly try to, Mr. Chairman.


372 Certainly we recognize the confidentiality protection that's been sought by the producing parties. As you know, this morning we took absolutely no position resisting that, and I would suggest that Direct Energy has expressed its respect of that position.


373 The challenge always in these circumstances is to balance the requirements of those producing information which makes them feel vulnerable against the procedural fairness rights owed to those parties who are participating in a proceeding, or, in our case, in addition, may themselves have confidentiality issues that they wish to be present to protect in connection with their own information, which curiously in this particular case happens to be being revealed by the producing parties' documents.


374 So in my submission, I tried to be proactive about the sensitivity that, of course, the Board would be struggling with, and that gave rise to my suggestion that the disclosure of that confidential information be given the best protection that it can be while protecting other parties' rights and that, therefore, take the form of allowing disclosure to counsel only and, therefore, putting the best protection that can be consistent with protecting others' rights to participate properly and to be able to prepare their own case and protect their own confidential information.


375 MR. BETTS: Thank you.


376 Mr. Dingwall, I'm not sure I heard anything that requires a reply from you. Do you agree with that?


377 MR. DINGWALL: Yes, sir.


378 MR. BETTS: Thank you.


379 The panel is going to take a short break -- we're hopeful that we will not exceed 20 minutes -- to try and deal with this, but the submissions have all been very effective, very good, and require a little more consideration than we can give it hiding behind this desk of ours.


380 So I understand if parties have to get on their way and -- but we will try to be back by, I'm going to aim at 5:30 if possible and render a decision. I think it's important that everybody knows where they stand for tomorrow morning, and that's why I would like to do this.


381 So we will adjourn now and reconvene as close to 5:30 as possible.


382--- Recess taken at 5:15 p.m.
383--- On resuming at 5:50 p.m.
384 MR. BETTS: Thank you, everybody. Please be seated. I see it's almost 5:30. I wasn't on the air when I said that. Thank you for your indulgence in allowing us a few extra minutes to conclude this matter, and the Board has reached a decision.


385DECISION:


386 MR. BETTS: HVAC, Direct Energy, CEED, and Energy Probe have asked for access to the confidential information in this proceeding. CEED, like other parties, had an opportunity to participate in the motion for production brought by CAC, IGUA, and VECC. As a result of that motion, the Board required production of documents to the moving parties and extended the right to production to additional parties on the basis of their direct interest in the ratemaking issues related to outsourcing.


387 While CEED's interest may not be directly engaged by the ratemaking issues related to outsourcing, the Board recognizes that there may be related policy issues that are of interest to CEED.


388 The Board is prepared to grant access to counsel only. This will be done on the basis that counsel for CEED must sign the Board's undertaking and will not discuss the content of the confidential documents with anyone, including the client, other than those individuals who have entered into a similar undertaking.


389 HVAC and Direct Energy are competitors. Direct Energy is concerned that information relating to the arrangements it has with CWI regarding access to the EGDI bill might be used to affect its competitive position. The Board reminds the parties that access to the bill is not an issue in this proceeding and that the Board has ruled on this previously.


390 While it is the Board's view that it may not be necessary for HVAC and Direct Energy to have access to the confidential documents, the Board is prepared to give access to counsel only. This will be done on the basis that counsel for HVAC and Direct Energy will sign the Board's undertaking and will not discuss the content of the confidential documents with anybody, including their clients, other than those individuals who have entered into a similar undertaking.


391 Energy Probe has a track record of public interest advocacy on energy regulatory matters. The Board is prepared to provide access to Energy Probe, restricted to Mr. Adams and his counsel, as required, on the basis that Mr. Adams and his counsel will sign the Board's undertaking and will not discuss the contents of the confidential documents with anyone other than those individuals who have entered into a similar undertaking.


392 Are there any questions?


393PROCEDURAL MATTERS:


394 MR. SPROAT: Mr. Chairman, a couple of points that I did want to address: First of all, in the course of my submissions, I had suggested that it would be appropriate in relation to the transaction documents for persons seeking access to those documents to sign an undertaking of non-disclosure that was modelled on the Accenture/WAMS undertaking of non-disclosure that I understand was used previously in this hearing. It's a somewhat more extensive undertaking in the sense that it's directed and addressed specifically to Customer Works and to CWI under its new name.


395 And we had prepared an alternative undertaking of non-disclosure, which I can show to you. I have showed it to a couple of the intervenors at the break. Perhaps if I could just provide you with copies of that that we had drafted. The other -- it would be my submission that an undertaking in this form would be appropriate for persons seeking access to this information.


396 The other point that I wanted to raise when I was listening to the decision, the access was to be to counsel who signed an undertaking, and then you made reference to counsel not discussing it with anyone, except individuals who have entered into a confidentiality agreement, and I just wanted to clarify that.


397 In other words, is it simply counsel for the various parties that could have this discussion? In other words, it would seem to me, given the rationale that you've put forward that it wouldn't be open to counsel to simply have, for example, a client sign a confidentiality undertaking and then gain access to the documents by that means.


398 MR. BETTS: You're correct in what you're assuming. I believe any parties that would be added to that group that would have access to those documents would have to have prior approval of this panel. So if somebody wishes to ask for that access, then they would have to make a submission to all parties and this panel for our consideration.


399 And a point that Ms. Aitken made, which is a reasonable point, that if something was seen in those documents that reasonably needed involvement from their clients, that she and anyone else should have the opportunity to submit that point to the panel for our consideration. But it would be done on a one-off as-required basis.


400 MR. SPROAT: And I think that's a helpful suggestion, and I don't take issue with that in any way, but I just wanted to clarify that particular point.


401 MR. BETTS: And the only remaining point, then, would be the actual content of the undertaking.


402 The Board panel is quite willing to be flexible with the document itself, and we're quite prepared to have it be as strict as possible so that there is no confusion about the responsibility of the parties that are involved with this.


403 In some regards we found the undertaking that this was modelled after to be even less restrictive than the Board's. We're quite satisfied with perhaps counsel for the responding or producing parties to deal with our counsel and establish an undertaking that would be agreeable to them as well as obviously being agreeable to those parties that end up having to sign it. But it seems as though there will be a willingness to find that compromise. We'll leave that with you to sort that out.


404 MR. SPROAT: I think --


405 MR. BETTS: If it requires the panel's involvement to make the decision we would be happy to do that, too.


406 MR. SPROAT: All right. I certainly would hope that would not be necessary. Then the final point is, if we are able to work that out before leaving here tonight, we have copied all of the documents over the course of the day, and are in a position to provide it to any of the counsel signing the undertaking before they leave this evening with the exception I think of two of the documents that had to be redacted.


407 We won't have them in a form tonight, binders and tabs and numbered, but if parties do want access to the documents with those two exceptions we can make that available tonight. And we'll work on it as quickly as we can to make the actual binder available to the Board.


408 MR. BETTS: Thank you. That's a very good suggestion. We appreciate your flexibility and cooperation on that, and I'm sure the parties would be happy to get whatever they could of those documents as early as possible. So I think to the extent that interested parties can stick around to receive that, it's a wonderful suggestion. Thank you.


409 Are there any other questions? I do -- I am prepared to make one more -- and this is a suggestion -- and that's as to how we deal with this process from here on in. And I think all of us are wondering how this is going to work out. In fact, somebody brought it up as a question how it's going to work out.


410 It's my understanding that there has been some discussion among the parties leading to a suggestion that we could handle the rest of the proceeding by treating it initially as being entirely confidential.


411 The transcripts would be documented that way. We would go through the entire proceeding dealing with all the evidence, all of the cross-examination and examination in that forum. As we complete the whole process, we would then put those documents back to the interested parties and challenge those parties to suggest to the Board which portions of the transcripts would be considered as confidential and we would be prepared to hear submissions on that.


412 So in other words it would take a reversal at that point. We would start off saying everything is confidential, and then we would go to a position where the onus would be on the parties to satisfy us that it had to continue to be confidential. Is there any initial submissions on that?


413 MR. DINGWALL: The only point I can make, sir, with respect to that is while initially sounding like a very good suggestion, there may be a problem of the operational efficiency or viability of that, in the event that there is an intervenor who has not been covered by your decision today or who is not a party to the motion who seeks to be active in that. That's a question I'm raising. I don't know what the answer is.


414 MR. BETTS: I'm not sure that we do yet either. If a party comes forward and shows interest in questioning or being involved with evidence coming forward on non-confidential information or wishes to cross-examination a witness panel on evidence that is non-confidential, we would certainly try to find a way to deal with that. And we may have to wait until we hear whether that's a problem.


415 At this point, I would say that the Board has determined which parties will be involved with the confidential information and that list has been established and the specific conditions have been established with the list. So if anybody else wants to be involved, perhaps the Board will have to hear their submission, but largely all the parties have had an opportunity to address this request for access and the Board has dealt with that.


416 MR. HOWE: Mr. Chairman, I have two comments. The first is by way of clarification.


417 As I understand it understand the suggestion, it would not apply with respect to the confidential documents. In other words, they have been rendered confidential on a final basis. It would simply be the live testimony, the viva voce evidence that would be treated in accordance with the chair's suggestion. Am I --


418 MR. BETTS: You're correct in that.


419 MR. HOWE: All right. And secondly, sir, as a responding party and as a lawyer who represents a client that's very sensitive about these matters, getting in the public record, I think the suggestion is an excellent one, with one twist. And that is, if it's confidential, then I would suggest that the parties seeking at the end of the day to reverse the confidential nature have the onus of establishing that it has to be on the record.


420 In other words, we would go forward on an in-camera basis. We could have fulsome discussions of these matters and it would seem to me to be appropriate for those interested parties who want to put something on the public record to then come forward, and the onus would be on them to demonstrate that it had to be in the -- it was in the public interest to have it in the public forum.


421 MR. BETTS: Ms. Stewart?


422 MS. STEWART: Mr. Chairman, I think I take a somewhat different perspective from Mr. Howe, and I don't think given the sensitivities involved that I'm being overly restrictive in this interpretation. But I would consider that the documents that have been declared to be confidential obviously would remain confidential and the evidence that's given by the witnesses with respect to those documents and with respect to issues raised by those documents in an in-camera proceeding should stay confidential and in camera.


423 Presumably those witnesses would be giving their answers with some degree of comfort and assurance that everything that they said would be recorded in confidence and in camera. And then to somehow change that following argument at the end of the process would serve to vitiate the understanding that the witnesses would be entertaining with respect to their evidence and further could serve to make the process less informative as a result.


424 So my submission would be that whatever is declared by you to be confidential and whatever is considered by you to be in camera should remain so. And that if anything else is to be put on the public record, that that should be dealt with up front, not after the fact.


425 MR. BETTS: I think I can help with that concern and Mr. Howe's as well by saying that the panel finds that very acceptable, that any evidence that relates to evidence that has been entered on a confidential basis will itself remain confidential.


426 I think what we're looking for in this final assessment is just your help in determining which things fall in that category. I believe I could say for the panel there would be an automatic acceptance of that argument once it is identified.


427 Any other questions? Then I think we know what we have to do for tomorrow morning. And Mr. Cass we will see you early in the morning with your witness panel and we can begin to ask witnesses questions and hear from them instead of all of us.


428 So with that, thank you all for sticking with us to see this matter through and we will see you tomorrow morning. We stand adjourned.


429--- Whereupon the hearing adjourned at 6:08 p.m.