Rep: OEB Doc: 12YPD Rev: 0 ONTARIO ENERGY BOARD Volume: MOTION - CONFIDENTIALITY OF INFORMATION REQUESTED BY INTERVENORS 14 MAY 2004 BEFORE: R. BETTS PRESIDING MEMBER P. SOMMERVILLE MEMBER P. NOWINA MEMBER 1 RP-2003-0203 2 IN THE MATTER OF a hearing held on Monday, 14 May 2004 in Toronto, Ontario; IN 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, 2004. 3 RP-2003-0203 4 14 MAY 2004 5 HEARING HELD AT TORONTO, ONTARIO 6 APPEARANCES 7 MIKE LYLE Board Counsel COLIN SCHUCH Board Staff FRED CASS Enbridge Gas Distribution Inc. ELISABETH DeMARCO Ontario Energy Savings Corporation and Superior Energy Management ALLAN ROSS TransCanada PipeLines JAY SHEPHERD School Energy Coalition BRIAN DINGWALL Energy Probe MELANIE AITKIN Direct Energy 8 TABLE OF CONTENTS 9 APPEARANCES: [24] MOTION FILED BY OESC AND SEM: [57] SUBMISSIONS BY MR. CASS: [58] SUBMISSIONS BY MS. DeMARCO: [146] SUBMISSIONS BY MS. AITKEN: [262] SUBMISSIONS BY MR. SHEPHARD: [280] SUBMISSIONS BY MR. DINGWALL: [307] SUBMISSIONS BY MR. ROSS: [329] PROCEDURAL MATTERS: [387] MOTION FILED BY OESC AND SEM: [393] SUBMISSIONS BY MR. LYLE ON BEHALF OF MR. JANIGAN: [394] REPLY SUBMISSIONS BY MR. CASS: [406] FURTHER SUBMISSIONS BY MS. DeMARCO: [478] FURTHER SUBMISSIONS BY MR. DINGWALL: [549] FURTHER SUBMISSIONS BY MS. AITKEN: [553] FURTHER SUBMISSIONS BY MS. DeMARCO: [559] PROCEDURAL MATTERS: [562] 10 EXHIBITS 11 EXHIBIT NO. K.1.1: DOCUMENT ENTITLED: "LET'S TAKE A LOOK" [106] EXHIBIT NO. K.1.2: DOCUMENT ENTITLED: "NAVIGATING THE ENERGY MARKETPLACE" [107] EXHIBIT NO. K.1.3: LIST OF INTERROGATORIES PROVIDED BY MS. DeMARCO [594] 12 UNDERTAKINGS 13 14 --- Upon commencing at 10:00 a.m. 15 MR. BETTS: Hi. Thank you, everybody. Please be seated. 16 Good morning, everybody. The Board is sitting today on the matter of application RP-2003-0203 submitted by Enbridge Gas Distribution Inc. for an order or orders approving or fixing rates for the sale, distribution, transmission and storage of gas in their fiscal year 2005. 17 First of all, how is the volume at the back? With me still? Thank you. 18 The Board sits today to consider a motion filed on May 7th, 2004, by Ontario Energy Savings Corporation and Superior Energy Management, which will be referred to collectively as the moving parties as we go forward, requesting that certain portions of pre-filed evidence, along with some interrogatories and interrogatory responses, be struck from the record. 19 My name is Bob Betts. I am the Presiding Member today. Joining me on the Panel are Board Members Mr. Paul Sommerville and Ms. Pamela Nowina. 20 Before I go any further, I did this 50 weeks ago, when I announced the arrival of a new grandchild. Coincidentally, it must really support population growth, but I can do that again today. I was proudly a grandfather again last night. A baby boy. All I know at this point is his name is Mr. Davenport. So I'm glad to get that into the record once again. And thanks for allowing me to do that. Go ahead. 21 MS. DeMARCO: Congratulations. 22 MR. BETTS: Thank you very much. 23 Let me begin, I guess, with appearances, if I could. And I'd like to hear who will be representing the moving parties, first of all. 24 APPEARANCES: 25 MS. DeMARCO: DeMarco, initial E., from the law firm of Macleod Dixon. 26 MR. BETTS: Thank you, Ms. DeMarco. 27 And from the applicant, Enbridge Gas Distribution? 28 MR. CASS: Thank you, Mr. Chair. Fred Cass for Enbridge Gas Distribution. 29 MR. BETTS: Mr. Cass. Thank you. 30 Board Staff? 31 MR. LYLE: Thank you, Mr. Chair. My name is Mike Lyle. With me is my colleague, Colin Schuch. 32 MR. BETTS: Thank you, Mr. Lyle. 33 Now may I have appearances from other parties present. And it would be helpful to us if we would know whether you intend to make a submission, and if so, whether your submissions will be, at this point, in support of the motion or in opposition to the motion. 34 Who would like to start? 35 MR. ROSS: Allan Ross, representing TransCanada. It's TransCanada's intention to, at this stage, not support the motion and to not support the exclusion of the evidence. 36 MR. BETTS: Thank you, Mr. Ross. 37 MR. SHEPHARD: Jay Shephard, School Energy Coalition. 38 Mr. Chairman, I don't know whether we support or oppose, and we will be making submissions saying that the motion's now moot. 39 MR. BETTS: Thank you, Mr. Shephard. 40 MR. DINGWALL: Brian Dingwall, on behalf of Energy Probe. 41 We will be making a submission which, while appearing to sit on the fence, will relate to a number of matters in support of the motion and a number of matters which distinguish the texture and context of the motion. 42 MR. BETTS: Thank you. And the Board Panel doesn't mind fence-sitting. Obviously, if there's information that is going to help us with the decision, we're quite happy to hear that as well. 43 Who's next? 44 MS. AITKEN: It's Melanie Aitken, Bennett Jones, here for Direct Energy. 45 And we do intend to make some brief submissions supporting the motion in that Issue 5.5 should be struck and all related and associated evidence and IRs be struck as well. And just to set a marker, we'll also be asking for the Board to issue a direction in connection with the messaging from Enbridge in the evidence in question. 46 MR. BETTS: Thank you very much, Ms. Aitken. 47 Anyone else? Thank you for that. 48 Are there any preliminary matters that the Panel should be aware of? 49 MR. LYLE: Yes, Mr. Chair. Since the filing of the motion, I believe there's been some developments with respect to the position of the applicant. And counsel for the moving party has consented to Mr. Cass commencing with submissions on this matter first. 50 MR. BETTS: Thank you. And Mr. Cass, you're agreeable to that? 51 MR. CASS: Yes, Mr. Chair. Thank you. 52 With the clarification that I won't be making a submission. In fact, what I will be doing is explaining why the company will not have a submission in respect of the motion to strike out the evidence, if I may do that. 53 MR. BETTS: Okay. And are there any other preliminary matters? 54 [Brief pause in proceedings] 55 MR. BETTS: Sorry for that diversion. It probably won't be captured in the record because the record-keeper was helping me with it. That's fine. We want to make sure that this is captured appropriately. 56 Mr. Cass, please proceed. 57 MOTION FILED BY OESC AND SEM: 58 SUBMISSIONS BY MR. CASS: 59 MR. CASS: Thank you. As I think everyone is aware, Issue 5.5 on the issues list resulted from evidence that the company had presented about the utility's role in system gas, and in entering into long-term contracts to underpin natural gas infrastructure investments. 60 I do wish to emphasize at the outset of this brief statement that the company continues to believe that these issues raised in its evidence are as important as ever. The company's views about the importance of achieving clarity around system gas supply and long-term contracting by the utility continues as much as ever. 61 The difficulty, though, that the company struggles with, and I suppose we all struggle with, is that the timing of business decisions is not necessarily in any way aligned with a regulatory timetable. And in the Procedural Order following Issues Day, and when the Board framed Issue 5.5, the Board pointed out that, depending on what direction was sought by the company, that the Board might require disclosure at a greater level of detail than provided by the company. 62 The problem is that we are now on the verge of starting the settlement conference, with a hearing to follow shortly thereafter, and the company simply is not in a position at this time to provide to the Board the concrete details of long-term contract proposals in a way to fit with the regulatory timetable. 63 So, in short, it's not in any way a change in belief about the importance of the issues. It's a difficulty of getting concrete evidence to the Board in a manner that suits the regulatory timetable. 64 So, for this reason, the company withdraws the evidence that is the subject of the motion by Ontario Energy Savings Corporation and Superior Energy Management, and given its withdrawal of the evidence, the company will not be making submissions in opposition to the motion to strike that evidence. 65 If I might just digress for a moment there, at that point. I did hear Ms. Aitken, on behalf of Direct Energy, indicate her intention to make some sort of a submission about a direction that this Board might provide today. I don't know where that's going. I'm not aware that there's any such motion before the Board. But I certainly would reserve the right to make submissions in response to any suggestion of that nature. 66 However, it is not the company's intention to make submissions on the issue about the striking out of the evidence. 67 The fact is that events have not transpired as quickly as was expected by the company at the time of Issues Day, and for the reasons I've explained, it just does not seem practical now to try to address Issue 5.5 in the context of this case. 68 However, the company continues to stand by the views expressed in the gas supply discussion paper that was filed at Exhibit A3, tab 5, schedule 2. 69 The company still believes that the LNG facilities referred to in the evidence represent important opportunities for Canadian gas supply, and it will continue to assess the appropriateness of contracting for supply from facilities like these. 70 So, as far as the company is concerned, nothing has changed since these matters were argued on Issues Day, except that it has become clear that the timing of proposed projects simply will not allow for due consideration of the issues raised by the company in this rate case. 71 When the matter was argued on Issues Day, the company pointed out that in line with previous comments by the Board about disclosure, it felt it was important to bring these issues forward. The company believes that disclosure of the issues was valuable for the Board and for all parties. 72 On the other hand, the company also appreciates that we're caught between, on the one hand, attempting to address these issues in a rate case where we're getting very close to the hearing; and on the other hand, the fact that there is an upcoming generic process, the natural gas forum, which would encompass issues of this nature. 73 I believe that on Issues Day there did not seem to be any dispute from anybody about the fact that the issues raised by the company were important ones and should be given timely consideration by the Board. I believe the discussion on Issues Day mainly centered on whether the appropriate process for dealing with the issues was this rate case or the natural gas forum. 74 So, while the timing of decisions to be made by the company is out of sync, if I could use that expression, with the timetable for the rate case, through nobody's fault, it's just a misalignment of the business world with the regulatory world, the company does express its hope that the Board would be able to move ahead with its consideration of these sorts of issues at the earliest opportunity. 75 That also reminds me, Mr. Chair; I was asked as well to address the company's position with respect to the overall status of Issue 5.5. The company has no objection if the outcome of the motion is Issue 5.5 has to be removed from the issues list. Again, the company doesn't see it as being practical in this case for it to bring forward evidence in a timely manner for the direction that was contemplated from the Board in Issue 5.5. 76 MR. BETTS: Thank you, Mr. Cass. 77 MR. SOMMERVILLE: Mr. Cass, Issue 5.5 has several aspects to it. One of them relates to the -- I believe it's part C, relates to the erosion of -- let me get this right, "... managing the risk of load erosion related to system gas is required to support these proposed long-term supply commitments." 78 Is it the intention of the company, notwithstanding withdrawal of evidence and your apparent indifference with respect to the continuation of this as an issue in the proceeding, is it the company's intention to make any claim with respect to system gas promotion? 79 MR. CASS: Yes, Mr. Sommerville, I'm not sure what you mean by "claim with respect to system gas promotion." But I might clarify - I think it would be helpful for me to do so - that the company's position about system gas, and I wouldn't use the word "promotion," I would tend to say improved communication, if I may, has not changed at all. 80 So, in other words, the reason for the company's position this morning is really the one I described, the difficulty of timing, of bringing forward evidence about necessary business decisions around these long-term commitments in a fashion that meets the timetable of the rates case. There should be nothing read into that to suggest that the company's plans or anything else have changed in any way. 81 MR. SOMMERVILLE: So the refocussing of external communications that's referred to in the evidence, that you intend to proceed with in the normal course, and the O&M budget contains a portion related to that activity? 82 MR. CASS: Mr. Sommerville, if I may. I don't believe the budget contains anything for refocus. The budget, as I think is normally the case, contains expected expenditures for customer communications. And I think all the company is saying is that in the context of that money that it would normally spend on customer communications, it believes it's appropriate to improve communication about system gas. 83 MR. SOMMERVILLE: And I'm not trying to belabour this point unnaturally, Mr. Cass, but the evidence refers to a "refocussing on external communications." And I take your point that there's no specific revenue requirement attached to the refocussing per se. But it is the company's intention to refocus external communications in that respect. 84 MR. CASS: Yes, in the manner in which I've described, sir. 85 And I might also say, of course, Issue 5.5 was formulated by the Board, and the Board will understand better than anyone the meaning of the issue. But certainly the way that it was read and understood by me, and I think by the company, is that this was all written in the context of the company's desire for some guidance in respect of the long-term commitment. So, even the opening words of 5.5 say that: 86 "Matters under review," et cetera, "that require commitments to be made prior to the next planned rate application specifically." 87 And then (c) itself, which refers to system gas "... as required to support these long-term supply commitments." 88 So my understanding of the issue was that it was all this the context of these possible long-term commitments, and it's there that the company has difficulty getting concrete evidence to the Board in a manner that suits the timetable of this case. By "there" I mean in relation to those long-term commitments that would seem to underpin all of Issue 5.5. 89 MR. SOMMERVILLE: Thank you, Mr. Cass. 90 Those are my questions, Mr. Chair. Thank you. 91 MR. BETTS: Thank you. And I have a couple as well. I'll follow along with the questioning that Mr. Sommerville began. And it goes to this question of changing, modification, of the direction that communications might take with your customers. 92 You've indicated that your plans to communicate will not be changing. Am I correct in saying that? 93 MR. CASS: I think, sir, if I understand it, the dollars don't change. The plan is to communicate more effectively when those dollars are spent, about system gas. 94 MR. BETTS: Yeah. I'm going to put it very bluntly. Is there a plan to actively promote system gas more than there has been in the past? 95 MR. CASS: Mr. Chair, what I did today or what we've done today is we've brought along a couple of examples of past communications by the company. These would be items that would have been inserted with bills in the hope that this might help explain what I'm saying to the Board. Would it be useful for me to pull out these examples of previous communications and then explain what it is that the company proposes? 96 MR. BETTS: I know at some point during this proceeding it would be helpful, and I think, because others may want to understand that clearly as I do, perhaps it is appropriate if we do that now. 97 MR. CASS: I'm not sure how many copies I have, sir, but what I have is two examples of items that I believe have been previously included with customers' bills. 98 One, in fact, is an Enbridge Gas Distribution item called: "Navigating the energy marketplace." The other is a Board item that the company included with the bills. It's called: "Let's take a look at Ontario's natural gas market." 99 And I think, simply by comparing these two, I can explain a little better than I've done so far what the company's intention is. 100 I stand to be corrected. The Enbridge item, as has been pointed out to me, is too big to be included in the bill. So it's not a bill stuffer, so to speak, but it's an item issued by Enbridge Gas Distribution, explaining the energy marketplace. 101 MR. LYLE: Just so I can clarify things, Mr. Cass, the "Let's Take a Look," document, that's the existing brochure? 102 MR. CASS: The "Let's Take a Look" document, and I hope I get this right, is a Board item that was included by the company as a bill stuffer. The "Navigating the Energy Marketplace" is an Enbridge item that discusses similar issues but in a different manner. 103 MR. LYLE: And the Enbridge item, is that an existing document or is that something you plan to -- 104 MR. CASS: Yes, it is. I'm sorry. These are both existing documents. The date on the back of the Enbridge item indicates a revision in March of this year. The back of the Board document shows a date of February of this year. 105 MR. LYLE: And Mr. Chair, if we could just mark these as exhibits. The "Let's Take a Look" document is Exhibit K.1.1, and the "Navigating the Energy Marketplace" is Exhibit K.1.2. 106 EXHIBIT NO. K.1.1: DOCUMENT ENTITLED: "LET'S TAKE A LOOK" 107 EXHIBIT NO. K.1.2: DOCUMENT ENTITLED: "NAVIGATING THE ENERGY MARKETPLACE" 108 MR. BETTS: Thank you, Mr. Lyle. 109 Yes, please proceed, Mr. Cass. 110 MR. CASS: So, if we were to start by taking a look at Exhibit K.1.2, the Enbridge document, one can see that it discusses the energy market and the existence of marketers and brokers. As one reads through the document more towards the end, there is a heading called "Selecting a Gas Marketer." Under that heading there is an explanation to customers that natural gas can be purchased from either the utility or a marketer. It explains in a very brief fashion the way in which marketers operate under licences from the Board, and there is some discussion in the last substantive paragraph about how gas marketers' prices are not regulated, and the role of Enbridge Gas Distribution in providing delivery of gas. 111 If I might say so, Mr. Chair, there's not a lot of explanation there about system gas as opposed to purchase of gas from a marketer. 112 Now, just to quickly compare that to Exhibit K.1.1, and again, I won't read the whole document, but you'll see that there's very specific discussion on the first page, with content of Exhibit K.1.1, of natural gas marketers as opposed to the utility, and some explanation of differences there. And then there's a question asked: 113 "How do I know which option is best for me?" 114 And there's some discussion about the options. So you will see, for example, the second sentence under the discussion of options, the very specific statement that: 115 "The choice is much like the decision you make when selecting a variable or fixed-rate mortgage." 116 That sort of message, that sort of comparison of the options, was not anywhere to be found in Exhibit K.1.2. And I should emphasize, of course, Exhibit K.1.2 is not the company's only communication with customers about the energy marketplace. 117 But I just felt that these two documents were the most representative to be able to explain to the Board what the company is intending to do in the test year. So, if one were to actually turn up the company's evidence, which, of course, is the subject of this motion to strike out, about its intentions in the test year, that's found in the motion record prepared by Ms. DeMarco at tab 6. 118 There is a discussion about the company's view that it should be improving the communication about system gas. And then, in paragraph 4 of the evidence that's at issue in this motion, there are examples given of specific messages that might be developed. 119 The evidence is the messages that would be made have not been developed, but it is expected that some of the elements are as follows. The very first example is that: 120 "The decision between choosing system gas and supply from a natural gas marketer is similar to deciding between a short and long-term mortgage." 121 And then there are two other examples, that "system gas will adjust with the market while a marketer's price will be locked in." And "system gas provides the flexibility to change while there is usually a cost associated with exiting a contract from a marketer." 122 So, in my submission, Mr. Chair, it's really moving closer to what I attempted to describe without the benefit of these documents, which is improve communication to customers as to what system gas is all about, and, yes, the benefits of system gas. 123 I wouldn't call that promotion. Others may do so. But that is what the intent is. And again, I think, by comparing K.1.1 to K.1.2, one can, I hope, better understand why the company says that it needs to improve its communication in this area. 124 MR. BETTS: Thank you. And then for absolute clarification, your willingness to remove that particular portion of evidence doesn't indicate a decision not to proceed with the plan or to use, in fact, these approaches, but it's just removing any notice to the Board that you're doing so. 125 MR. CASS: Well, Mr. Chair, I think the notice is there in the evidence. And if it's removed, I hope that everyone would still feel that they'd been aware and that they'd received notice. And I can now state that there is no intention today to change the plans in the evidence, so that everybody is aware of that. 126 Again, the issue for today is that the context of all of Issue 5.5 seems to be around these long-term commitments. And I'd be the first say, that was the focus of argument on Issues Day, was the company's desire for direction on these long-term commitments. And the timing is just not realistic to address that in the context of this case. But I don't want anybody to think that there's a suggestion from me that the company's plans are different because of it, for the reason I've given, not objecting to the motion. 127 MR. BETTS: Okay. We may come back to that a little bit later. 128 Can I ask you one further question, Mr. Cass, and it relates to Issue 5.5 and your position that you're indifferent to Issue 5.5's remaining in this application or not. If Issue 5.5 were to remain, are you satisfied that there is sufficient evidence to reasonably consider that issue? With the removal of the evidence in question? 129 MR. CASS: Again, sir, perhaps I should just say two things. 130 First of all, I'd probably put it even more strongly than "indifferent". Given that the company is withdrawing its evidence, I think the company would agree if the Board were to feel it appropriate to remove the issue. So I think it's more than just being indifferent, but you know, the company has obviously not brought a motion to do that. 131 And then, again, whether the evidence is sufficient, I'm sorry, Mr. Chair, because I know I keep going back to these long-term commitments. But really, the context in which the company argued on Issues Day for inclusion of the issue was its expectation that even before now it would have some evidence it could bring to the Board about the need to make a decision on a long-term commitment. It was expected at that time that this would be happening very quickly. 132 It now looks like it's unlikely it would happen even before the hearing. So I can't pretend to suggest to the Board that the company is going to be in a position to bring concrete evidence with respect to the need for decisions on long-term commitments in time for the hearing of this case. 133 MR. BETTS: Thank you. Thank you, Mr. Cass. 134 Mr. Lyle, do you have any questions that would be helpful? 135 MR. LYLE: I have just one question, if I could, Mr. Chair. Pardon me. 136 Mr. Cass if, hypothetically, the Board was to strike Issue 5.5 from the issues list and replace it with an issue focussed on system gas communications, what would the position of the utility be with respect to putting that type of an issue on the list? 137 MR. CASS: Sorry. If I may. 138 MR. BETTS: Please go ahead. 139 MR. CASS: I think I have two points to make, Mr. Lyle, in response to that question. 140 First, I'm not aware that this sort of communication has been a matter of direction from the Board in the past. So I don't think it's clear to us what the issue would be in respect of the company, essentially, indicating that it believes it has an important role of communication with its customers and that it intends to continue to fulfill that role in what it believes to be the best interests of the customers. That's number 1. 141 Number 2, I guess the only concern I would have, aside from what I just said, is that if an issue were now to be formulated that would then cause I don't know how many parties to think that they need evidence and they need to do more to address that issue and potentially disrupt our schedule, that would be the other area of concern. 142 MR. LYLE: Thank you, Mr. Cass. 143 That's all my questions at this time, Mr. Chair. 144 MR. BETTS: Thank you, Mr. Lyle. 145 Ms. DeMarco. 146 SUBMISSIONS BY MS. DeMARCO: 147 MS. DeMARCO: Thank you, Mr. Chair. In terms of how we proceed, given the company's position, I'll be frequently asking for your direction as to the length of detail you would like to hear on any particular issue or point that I am making. 148 If I could ask for your indulgence, first to provide a bit of context. Mr. Chair and Panel Members, the issues in the motion before the Board today arise out of EGD's materials filed in the context of this rates case. And those materials propose a fundamental and sharp change in the role of a natural gas utility in the Ontario natural gas sector. 149 Proposals here would effectively change the role of EGD from a distributor of natural gas to both a distributor and an active promoter or seller of gas commodity. These proposals are of integral interest to both OESC and Superior Energy Management or SEM, and their rights, privileges, and interests in the Ontario natural gas sector. 150 The two affidavits of both Mr. James Russell Hamilton, who's sitting on my left, and Mr. Gerald Michael Haggarty, who's sitting on my right, are found in the motion record at tabs 3 and 4 to support the significant and longstanding interests that both of these parties have had in this issue. 151 EGD filed this material and proposed these fundamental changes to the role of the utility in the context of this rate proceeding by asserting that it is necessary for EGD to enter into long-term contracts in order to ensure adequate new supply of natural gas, and, as Mr. Cass said, EGD needed direction from the Board in this rates case. 152 As Mr. Cass also indicated, the Board was first faced with the task of determining the specific scope of the many issues related to EGD's proposed fundamental changes that would be examined in this rates case. In doing so, in Procedural Order No. 3, which is set out in the motion record at tab 2, the Board gave a few specific directions. 153 First, in actually formulating Issue 5.5, the Board indicated that it would constrain the issues, the potential, many, many issues here that have been raised by the company to specifically matters under review by EGDI filed in this proceeding that require commitments to be made prior to the next planned rate application. It went on to say that: 154 "To the extent that the company has specific plans for submission in the time frame of this proceeding, the Board will hear evidence on these specific plans and their implications." 155 Third, and in light of Mr. Cass' recent comments I think I'd like to refer specifically to the second-last page of the Procedural Order, the decision itself, referring to system gas. The paragraph starts: 156 "The company has brought forward a proposal to promote system gas, including the recovery of the costs of promotion. The Board's review is required at this time because system gas promotion costs are proposed for recovery in 2005 rates." 157 I'd like to emphasize the Board's direction here. 158 "While the Board sees this matter as being linked to the issue of long-term supply commitments, it is one alternative among several of managing the risk of reduced system gas loads and potential stranded supply costs. If the company wishes to continue to seek recovery of the system gas promotion costs, it should provide evidence of other alternatives." 159 Again, the emphasis being that the Board sees these issues as linked, not severable. 160 In the time period following the April 1st decision in Procedural Order No. 3, and to date, the company did not file any evidence on specific plans requiring commitments before the next rates case. Nor did it file evidence on the implications of such specific plans, nor, and again, in light of Mr. Cass' comments, I emphasize, did it file evidence on alternatives to promoting system gas, or the need to proceed with any proposal to promote system gas or other related alternatives, even in the absence of specific plans for long-term commitments to being linked. 161 In fact, we've had only hints of information about these long-term contracts through a series of interrogatory responses, and they're set out in tab 7. I could go through the specific responses if the Board would like. Alternatively, I can just provide highlights of what they indicate. 162 MR. BETTS: I think the highlights would be welcome. 163 MS. DeMARCO: We do know that there are some contracts being contemplated in eastern Canada. We do know that they relate to LNG facilities. We do know that they might involve an affiliate or related party, that being potentially EI. We do know that we're not certain at this time what the pricing mechanism might look like, and we do know that the term might be in the range of 20 years. That's the extent of these specific plans that we are currently faced with in an attempt to fully discover and probe the evidence on long-term contracts in this proceeding. 164 So where are we now? Well, OESC and SEM submit that there are two main consequences for EGD. First, we are very sympathetic that the commercial realities may have prevented EGD from coming forth with any specific plans on long-term commercial contracts. But, nonetheless, the company failed to comply with the Board's direction of Procedural Order No. 3 that would allow the material that is currently set out in Exhibit A.3, tab 5, section 2, and Exhibit A.3, tab 5, section 5, the two being linked, to be considered and fully probed by all intervenors in accordance with their procedural rights afforded by all of the common law, the Board's Rules of Practice and Procedure, and the Board's specific Procedural Orders in this proceeding that created a legitimate expectation of the process to be followed and the procedures to be afforded to all of the parties. 165 Second, as a further result of EGD's inability to put forth specific plans, OESC and SEM -- is that me? 166 MR. BETTS: Just pause for a minute. I don't have much diagnostic information up here. But I shut it off, and that cured the problem. 167 Let's try it again. We're back on the air. 168 MS. DeMARCO: There we go. So, as a second result and further result of EGD's inability to put forward specific plans, EGD has not discharged its burden of proof under section 36, subsection 6 of the Ontario Energy Board Act, which is set out in the motion record at -- just let me get you the appropriate tab reference. I apologize, that's actually the book of authorities. And that's at tab 2. Specifically, Section 36(6) indicates that: 169 "Subject to subsection (7) in an application with respect to rates for the sale, transmission, distribution or storage of gas, the burden of proof is on the applicant." 170 So it has not discharged that burden of proof under Section 36(6) to substantiate both the need for and its proposed actions to, first, enter into long-term supply-related contracts; and, second, take any action to promote system gas and/or make any other changes to address any potential risk of load erosion. Therefore, OESC and SEM submit that unless and until these matters, which are urgent, do come squarely before the Board through the proper procedures, the company cannot proceed with the fundamental change that it has proposed relating to its role in promoting system gas. 171 Moreover, should the company come forward now, at this stage of the proceeding, with specific plans regarding long-term contracts, OESC and SEM submit that they would be effectively deprived of the many procedural rights that they legitimately expected in accordance with the common law. And I do have the Baker case attached in the book of authorities which sets out the many rights expected. 172 Secondly, in accordance with the Board's Rules of Practice and Procedure, specifically Rule 23, which granted both OESC and SEM the full rights of an intervenor and the full procedural protections included as such. And finally, the rights afforded by the Procedural Orders. 173 And instead of going through each of these sources of rights, specifically, the specific rights to summarize that we are chatting about here are the rights to fully probe the evidence, the rights to enter into written discovery process through interrogatories, the rights to potentially respond through evidence, and ultimately to make argument and cross-examination, should a hearing proceed. 174 So, at this point, and the questions have appeared to center around the potential remedies, I'd like to make it very clear, what we have asked for is not to have Issue 5.5 struck from the issues list but rather to have the evidence, which does not conform with the Board's direction in Procedural Order No. 3, struck from the record. There are valid issues regarding the utility's role that absolutely should be discussed by a wide and broad-ranging segment of the industry, to ensure that they are decided upon in the consistent policy manner. 175 There is an urgency to have these matters discussed and determined in a forum like the natural gas forum, with all intervenors and all interests adequately and fully represented. 176 As a result, should the Board have any further questions, we would ask that, in accordance with our motion, the evidence be struck. And I do have a list of both the corresponding interrogatories that would go along with that. 177 MR. BETTS: Thank you, Ms. DeMarco. 178 Mr. Sommerville? 179 MR. SOMMERVILLE: Ms. DeMarco, the remedy that you seek, if I understand your argument correctly, you are suggesting that the applicant has failed to provide evidence that is in conformity with the terms of Issue 5.5. Is that correct? 180 MS. DeMARCO: To date, there has not been. 181 MR. SOMMERVILLE: And the idea is, I think we heard from Mr. Cass that he agrees with you that he has not filed any evidence that is particularly informative on that subject. 182 Now, your response to that is to strike the evidence that does not conform, rather than argue at some point in this proceeding, in the rates case, that the applicant has not made out its case with respect to Issue 5.5. 183 Can you explain to me why this motion is -- why you've chosen this approach rather than what would be a conventional approach, which would be to say he simply hasn't made his case? 184 MS. DeMARCO: I think to answer that question you need to look first at the two pieces of evidence that we are talking about. 185 First is the discussion paper considering very, very broadly numerous issues regarding the role of the utility in system gas. Not simply the utility's case or the company's case in regard to Issue 5.5. 186 MR. SOMMERVILLE: Mm-hmm. 187 MS. DeMARCO: So there is a plethora of additional issues and evidence in that document that fall well outside the scope of Issue 5.5 as construed and constrained by the Board. 188 So, certainly that would be something we would want to ensure didn't get into play. And if you have looked at the evidence that has since come forward from, for example, Energy Probe, there are also a number of other issues there that fall well outside of the Issue 5.5 as construed and constrained by the Board in Procedural Order No. 3. 189 So there's a danger that we will, in fact, be considering far more than the procedure would have accounted for and given notice of in Procedural Order No. 3. And we won't have the ability to have the procedural protections that should have been afforded in relation to a far broader issue than we would have assumed. 190 MR. SOMMERVILLE: Mr. Cass has indicated that he's going to withdraw the evidence that he has filed with respect to Issue 5.5. So there is now, in effect, a vacuum there. 191 I'm wondering how we run into the danger that you're describing if there was no evidence to consider the items that are covered in Issue 5.5. How do we wander into that danger, in the absence of evidence? 192 MS. DeMARCO: In the absence of evidence, that's specifically what we're requesting. In the absence of evidence that would have this breadth of issues, there is not the concern that you're going to wander into those numerous other issues. But there is need for direction on Issue 5.5, that the company cannot then proceed to -- it would be that much more of an affront to the procedural rights by effectively going forward with the proposals even though they're not supported by any evidence. 193 MR. SOMMERVILLE: Thank you. Those are my questions. 194 MR. BETTS: Ms. DeMarco, you did - and I want to make sure I understood this correctly - you did indicate that there are important issues, and they should be pursued in proceedings, I think you said, like the natural gas forum. Are you indicating, by stating that, that we needn't deal with it in this hearing forum; that the natural gas forum would be a reasonable alternative? 195 MS. DeMARCO: Certainly the policy components, for example, the role of the utility in system gas, broadly, the utility's role in entering into long-term supply commitments greater than 20 years, these are broad, industry-wide policy issues that would be quite conducive to a forum like the natural gas forum, if there was full and broad representation of a number of intervenors representing the entire industry there. 196 Similarly, it could come up in another rates case. There are other procedural avenues that could be afforded. We do feel that there are a number of over-arching policy considerations that should be determined in that policy forum. That certainly should help the company with the dilemma it's now in. 197 MR. BETTS: But, on the other hand, you indicate that the other matters relating to system gas that would be contained within Issue 5.5 should remain in this proceeding? 198 Or are you, in fact, supporting Enbridge's position that 5.5 can be removed? 199 MS. DeMARCO: The two issues are linked. Any need for system gas promotion or for further communications that would have the effect of maintaining a critical mass of customers or a portfolio of customers as the company's evidence indicates, arises as a result of this need for long-term contracts. So in the Board's Procedural Order, they recognize, the Board recognizes that the two issues are, in fact, linked. 200 So, first we would say that, unless and until the company comes forward with specific long-term contract plans, it cannot proceed with strategies to mitigate load erosion resulting from those long-term contracts. It's a chicken and egg debate. 201 MR. BETTS: Thank you. I think this will be my last question. And Ms. Nowina would like to ask a question as well. 202 The one item, which is the discussion paper, "The Utility Role of Gas Supply," I believe that it is a matter of public record now, and perhaps Enbridge could tell me whether that's correct or incorrect. 203 MR. CASS: I'm sorry, Mr. Chair. I'm not sure what you mean by "matter of public record." It has been filed in this case. 204 MR. BETTS: Was it filed in a previous -- as a previous submission to the Ontario Energy Board? 205 MR. CASS: I'm told, Mr. Chair, it was circulated as a draft but not officially filed in any other fashion than in this case. 206 MR. BETTS: Are there members of the public who've had this with the agreement of Enbridge? 207 MR. CASS: Yes, I think that would be the case. 208 MR. BETTS: Then, Ms. DeMarco, what if other parties wish to refer to this anyway? 209 MS. DeMARCO: In terms of referring to a draft that's circulated or a specific discussion paper? 210 MR. BETTS: That's a good and subtle point to consider, whether it be a draft or not, but would you -- are you suggesting that there should be no reference at all made to this document? Is that your position? 211 MS. DeMARCO: Should the evidence be withdrawn, or struck, yes. 212 MR. BETTS: From this proceeding? 213 MS. DeMARCO: Yes. 214 MR. BETTS: Yes. Okay. 215 MS. DeMARCO: Which is not to say the company could not then put it forth in a more appropriate proceeding for the broader policy issues to then be determined. 216 MR. BETTS: Yeah. I do recall that this document, or something very similar to it, or a draft of this document was submitted at a request of the Ontario Energy Board in a proceeding back in 2003. And therefore I'm just aware of its existence out there. And I'll just leave that with all of you. 217 Now, Ms. Nowina. 218 MS. NOWINA: Just a point of clarification, Ms. DeMarco, in spite of the other questioning, I'm still not quite clear. Are you suggesting that once the evidence is removed, that we should still hear on 5.5 in the coming proceeding? 219 MS. DeMARCO: Let me see if I can clarify, and my apologies for not having been clear enough in the first instance. 220 Our initial position would be that there should be a direction from the Board now that the company cannot proceed with its proposal to effectively promote system gas costs unless and until it comes forward in a proper procedural manner, with matters pertaining to long-term contracts. 221 In the alternative, should it proceed or intend to proceed, there are funds, whether they be incremental or not, within the current O&M budget, that would warrant the Board's involvement on any proposal that would make such a fundamental change. 222 I would, however, caution that this is not the procedurally efficient and best way to examine such a fundamental change in the role of the utility. Rather, the matter should be coming before the Board, with full evidence, not tangentially, but for a full examination of all the issues associated with the role of the utility providing system gas and promoting system gas as a supply option, and the associated dual role that OESC and SEM would submit it put it is utility in. Effectively, by taking on those actions, it becomes both a distributor and, in our submission, a gas vendor. 223 MS. NOWINA: So, if I could paraphrase, just to ensure that I'm clear. So you're suggesting that we give direction to Enbridge now, on its role, and what we expect of it. And if we do, we remove 5.5 from the coming hearing. If we do not, then you think 5.5 should remain? Is that what you're ... 224 MS. DeMARCO: I'll just have to think about that. It was our intention to have Issue 5.5, and our motion specifically referred to strictly striking the evidence there, which would effectively limit the discussion significantly. 225 MS. NOWINA: It would limit it, and that's why the question: Do you expect us to go ahead and have that discussion with the very limited evidence available? 226 MS. DeMARCO: I believe there are two options. One is to first, and on behalf of OESC and SEM, would be first to go forward, give the direction now, and then effectively have dealt with the Issue 5.5 in this proceeding. Or, secondly, strike the evidence and have what remains to be a very, very limited discussion in the context of O&M. 227 MS. NOWINA: Thank you. 228 MR. BETTS: You mentioned something, I think I saw Mr. Cass's eyes light up. So I'm going to ask this question. 229 Your motion speaks to the evidence being struck. Your words stated that: "We should direct Enbridge that they not proceed with their plans to promote system gas." Those words aren't in your motion. Is that your expectation? 230 MS. DeMARCO: They would be a necessary effect and implication of our motion, specifically, the notice of motion also specifically requests, in terms of relief, "Such further and other relief as counsel may advise and the Board may permit." So, within that regard, we think this is definitely a necessary consequence. 231 If not, the mischief which the motion is seeking to remedy, that is, protecting our procedural rights to have a full examination of the issue, would be ten-fold. We'd have decision on the issue with no examination. 232 MR. BETTS: Mr. Sommerville? 233 MR. SOMMERVILLE: Just one supplementary question. 234 You're not suggesting that the applicant is not in a position to withdraw the evidence? 235 MS. DeMARCO: No, I'm not. 236 MR. SOMMERVILLE: Thank you. 237 MR. CASS: I'm sorry to interrupt the flow of things, Mr. Chair, but I do think it incumbent upon me to state in the strongest possible terms, at the earliest possible opportunity, that I object very strenuously to any suggestion that the Board would give a direction of the type that Ms. DeMarco has talked about. 238 I did indicate that I would have no submissions in response to the motion to strike out the evidence, and that is true. I would definitely have submissions in response to any suggestion the Board should make a direction. The fundamental difficulty, though, is, it's not even part of this motion today; it's not something I came prepared to address. It's something that may well have been of interest to other parties that may not be here today. 239 Ms. DeMarco suggests that this is somehow an outflow of the motion because the motion requested "such further and other relief as counsel may advise." I would suggest, Mr. Chair, it's, in fact, contradictory of the motion. On the one hand, the moving party -- 240 MR. BETTS: Mr. Cass, I'm going to ask you to pause now. I'm going to let you make that submission and I won't hold you to your promise that you won't make any further submissions on this, but I think I will come back to you and allow you to address that particular matter, and a full submission and others that you've heard as well. 241 MR. CASS: Thank you, sir. 242 MR. BETTS: And we'll just continue with the flow at this point, though. 243 Mr. Lyle, is there anything that you could help with in terms of clarifying questions? 244 MR. LYLE: I do have a couple of questions, Mr. Chair. 245 Ms. DeMarco, I'll pose to you the same question that I posed to Mr. Cass with respect to a hypothetical, that if the Board was to strike Issue 5.5 from the issues list and replace it with an issue which focussed on system gas communication, what would your response to that approach be? 246 MS. DeMARCO: It would be two-fold. 247 First, the two issues are linked, long-term contracts and system gas communications/promotions, as the Board has indicated in the Procedural Order. As a result, the underlying assumptions for the need for system gas communications would not be in evidence, so would constrain that issue slightly. 248 Secondly, if the Board were to proceed strictly with system gas communications as an issue, there is, in fact, some procedural challenges going forward, as Mr. Cass outlined, that we would certainly want to have full opportunity to have all the procedural rights associated with that issue. And it may be, Mr. Lyle, that we bifurcate or hive off that portion of this hearing to be heard at another day. 249 MR. LYLE: Then a second question, Ms. DeMarco: 250 You heard Mr. Cass say that we don't normally review the communications that the utilities put out to their customers. That's not normally part of the regulatory process. 251 Can you address for me whether the Board has jurisdiction to review that communication and approve that communication, and also, jurisdiction to provide the type of direction that you have proposed? 252 MS. DeMARCO: Yes. Just one moment, please. 253 There are a number of avenues by which the Board has jurisdiction to take the actions requested. First and foremost, in relation to its objectives as set out in Section 2 of the OEB Act which are contained in the book of authorities at -- sorry, it's in the motion record, I believe. Oh, sorry. Book of authorities, tab 2, section 2, wherein it indicates: 254 "The Board, in carrying out its responsibilities under this or any other Act in relation to gas, shall be guided with the following objectives:" 255 The very first objective there, Mr. Lyle, is to facilitate competition in the sale of gas to users. It would be our submission that the proposed system gas promotion activities would fall squarely within the concern regarding competition in the sale of gas to users. 256 Secondly, the Board has jurisdiction as this matter has arisen in the context of an issue as enunciated by the Board in a rates case. So therefore, in relation to its rights and obligations as set out in Section 36, there certainly would be jurisdiction for the Board to take the requested action there. 257 Thirdly, in relation to what exists in the context of the Gas Distribution Access Rule, a number of the proposals there that the company is making may have definite impact on the provisions in the Gas Distribution Rule. Specifically, the proposals may, in effect, put the company in both the position of being a gas distributor and a gas vendor and run afoul of Section 3.1.1, which has a gas distributor conducting all relations with gas vendors in a non-discriminatory manner. So certainly each of those would provide the Board with the jurisdiction to potentially act in relation to this matter as proposed. 258 Have I missed the first part of your question, Mr. Lyle? 259 MR. LYLE: No. Thank you. 260 MR. BETTS: I think I will establish the order by which we'll hear the next submissions, and I would like to hear from those that have indicated a willingness to support the motion at this point, then from those that have submissions from both viewpoints, and then, finally, from those that would like to speak in opposition to the motion. 261 So, if I've got that right, I would begin with Ms. Aitken. 262 SUBMISSIONS BY MS. AITKEN: 263 MS. AITKEN: Thank you, Mr. Chair. 264 What we have here appears satisfactory in one sense. Enbridge has expressed a willingness to withdraw the evidence purportedly filed in connection with Issue 5.5, if the Board is inclined to have Issue 5.5 removed from the list. 265 The issue, though, that has come up is this notice that Enbridge has given, as Mr. Cass quite frankly said, to all the stakeholders and to the Board in connection with their plan to change their communication's message from a traditional role of simply promoting gas to one of promoting system supply. 266 Now, Mr. Cass has indicated that the Board has no jurisdiction over this messaging. And in light of both the nature of the message change and, frankly, the assault on the Board's jurisdiction that it wouldn't have the ability to monitor that kind of messaging, it's Direct Energy's very strong submission in urging the Board to turn its mind to this matter. 267 As to jurisdiction, it's worth noting at the outset that the Board's jurisdiction is not circumscribed by what any applicant or party or intervenor might choose to file or not file, to withdraw or to leave on the record. The Board's jurisdiction includes, among other things, as Ms. DeMarco pointed out in Section 2 of the Act, facilitating competition. And if I could just ask, if you've all got Ms. DeMarco's material, she was good enough to include the Act. And if I could ask you to turn up Section 21. 268 MR. BETTS: Thank you. We're ready. 269 MS. AITKEN: Now, I confess, I knew this would be in here somewhere, but if Ms. DeMarco hadn't been good enough to put in the materials, I wouldn't have had it in front of me. But of course, as a statutory tribunal charged with a public policy/jurisdiction to achieve, among other things, those objectives set out in Section 2 of the Act, the Board not surprisingly, of course, it states in subsection 21: 270 "...may at any time on its own motion and without a hearing give directions or require the preparation of evidence incidental to the exercise of the powers conferred upon the Board by this or any other Act." 271 And so, if you take Section 21 and combine it with Section 2(1), it's very clear, in our submission, that this need not be the subject of a motion. This is a message that Mr. Cass was very clear he wanted no mistake taken. This was a message that had been conveyed to the Board, that they had done so, and so don't be surprised in the future. 272 Well, having brought that message to the Board and to the stakeholders, in our submission, it's not only appropriate but it's something Direct Energy would urge very strongly on this Board; that it issue such directions on its own motion, under the auspices of some sort of vestigial Issue 5.5, if that's deemed necessary, or just simply of its own initiative under Section 21; give a very clear direction that this fundamental change in messaging is something that is within the jurisdiction of the Board and is something that, in our submission, substantively, given that it would interfere with the competition and the promotion of competition in the marketplace, is something that Enbridge is not free to do of its own volition without prior Board approval. 273 Ms. DeMarco gave you a sense of the relationship between the issues in Issue 5.5. And I think it boils down to a very simple proposition. The issue of whether there should be a messaging change is only triggered if you're dealing with a risk of load erosion consequent upon long-term supply or long-term contracts. 274 So it's just simply not triggered. We don't have a record on it. It's an issue that clearly needs to be dealt with but it needs to be dealt with when it's right and when we've got a full record. 275 So, in our submission, the best way to approach this, and what we would urge on the Board, is that the issue of whether messaging should be changed be deferred to the time at which the conditions precedent even becoming a potential thing to consider are dealt with. And in the meantime, a strong message be given to Enbridge that messaging is in this Board's jurisdiction, and that without prior approval a change in that messaging by Enbridge, notwithstanding the bookmark they very clearly take the position they've laid down today but yet still don't want you to deal with, that this is something they cannot do on their own volition and it's something that needs to be monitored and is properly monitored by the Board. 276 Just to deal with the Board counsel's question in terms of -- I'm not sure, perhaps you wouldn't be interested in our position as to whether that would be an appropriate issue, but in our submission, it simply isn't right to be added to this issues list. It's going to require, as I said, evidence on all of the conditions precedent, as well as the issue of changed messaging proper, and accordingly, it wouldn't be an appropriate way to deal with it to simply add it as an issue to today's proceedings. 277 The only other point I had is really one of clarification. I confess I've become a little lost as between the submissions as to whether it's Enbridge's position that all of the evidence filed in connection with 5.5 would be withdrawn. And I'm sure you're clearer on that than I am. But our position is that it should all flow -- or be withdrawn, whether or not that's Enbridge's position. The only other thing we would say is that all other associated and related evidence in connection with Issue 5.5 should be struck, including any IR's and the like. 278 MR. BETTS: Thank you. Thank you, Ms. Aitken. We have no questions. 279 Mr. Shephard, would you proceed. 280 SUBMISSIONS BY MR. SHEPHARD: 281 MR. SHEPHARD: Thank you, Mr. Chairman. I thought this was actually going to be a simple argument. I was going to argue that it was moot and that was the end of it. I guess not. 282 So let's start from square one. The applicant has withdrawn the evidence on which Issue 5.5 is based. They're within their rights to do that. Having done that, Issue 5.5 doesn't have to be taken off the issues list; it dies natural death. This Board no longer has jurisdiction to consider Issue 5.5, because there's no evidence before it. The Board can't decide things on which it has no evidence. 283 So once that has happened, and I have to deal with the Energy Probe evidence, I'll deal with that in a second, but -- leaving that aside, once there's no evidence on the issue, it's not before you. 284 So I thought it was nice and simple. Then Mr. Cass said, Oh, well, but we're going to withdraw Exhibit A.3, tab 5, schedule 5, which is one of the items Ms. DeMarco has challenged. We're going to withdraw it. This is the one about promoting system gas and -- but he says, But we're still going to do it, we're just not going to tell you we're going to do it. We'll tell you on the record, but we won't have the evidence before you. 285 So the Board is in the perverse position that it knows the company is going to do something but it can't deal with it because it has no evidence. I find that a little strange. However, I think Mr. Cass is right, that it is not the sort of thing that the company has traditionally needed the Board's approval to do. 286 The Board doesn't -- sometimes it approves customer communications but usually does not. And while this is a particularly sensitive one, I don't think there have been occasions in the past, that I can think of, where the Board has specifically required prior approval. So I think Mr. Cass is right on that, that they can proceed with it if they wish and so I disagree with Ms. Aitken that the Board should direct them not to do this, not to make the change. 287 However, I think it is fair for the Board to say: Applicant, once you've done something that is within our jurisdiction, as this is, we can review it and decide whether we like what you did, whether it was appropriate, whether you went in the right direction. So, now that you've told us that you're planning to make a major change, which one would think, just a matter of common sense, should probably be discussed before the Board before you do it, but you want to do it anyway, that's fine, go ahead and do it, but you do it at your peril. And when you come in next year and the intervenors are, like, for example, Ms. DeMarco and Ms. Aitken, are complaining that you abused your role in the marketplace, don't say, Well, we told you. Because what the company is saying today is: We're telling you but we don't want you to do anything about it; we don't want you to think about it. 288 So then they're doing it at their peril. And next year they can get whacked for it. 289 So then one other little minor detail here. And that is that all of the evidence on this issue is evidence of the company, with the exception of the Energy Probe evidence. I don't think the company can withdraw that evidence, because it's not their evidence. So I think that evidence is still before the Board. There may be other evidence on this issue; I haven't seen any. 290 I would suggest, however, that once the company's evidence is withdrawn on this issue, that it would be appropriate for those other intervenors to withdraw their evidence, or alternatively -- like, for example, Energy Probe, or alternatively, for the Board to say that there is no longer any need for the Energy Probe evidence and to strike it. 291 One final comment. Mr. Cass has objected strenuously to any directions or guidance or anything happening today that isn't in the notice of motion. I frankly think that's an unfair position for Mr. Cass to take. He came to the Board at the last minute, and said: Well, you know that motion? Well, we're going to change everything because we're going to withdraw all the evidence. I think he has to accept the natural consequences of that, which is that the Board then has to deal with the new situation that the company has put before it. And if part of that is to advise the company what the Board thinks about system gas promotion, or about any other aspect of this issue, I think that the company has made that bed themselves. 292 Those are our submissions. 293 MR. BETTS: Thank you, Mr. Shephard. 294 MR. SOMMERVILLE: Mr. Shephard, why would the Board, if Mr. Cass -- and the focus of this motion was the evidence of the applicant, why would the Board be well-advised to seek the withdrawal or order the withdrawal or strike the evidence of other parties? What's the rationale for that? 295 MR. SHEPHARD: The nature of this issue was that the company was seeking guidance from the Board on some issues. It didn't actually need to, it could have gone ahead. In fact, the Board recognized that at the time of the Issues Day, that these are things that the company can do but that it might be appropriate to ask for guidance. 296 The company isn't asking for guidance anymore. The evidence of other parties responding to the company's evidence is no longer relevant. 297 MR. SOMMERVILLE: I didn't understand Mr. Cass to say that. I didn't understand Mr. Cass to say that the company was uninterested in some dialogue with respect to the subject matters of Issue 5.5. I think what he suggested is that he has no evidence to provide on that subject. I think that's what he said. 298 MR. SHEPHARD: I think, technically, that's correct, Mr. Sommerville, but I think that as a practical matter, the company put the question. And a number of -- well, Energy Probe, at least, and perhaps others, have attempted to answer the question. And the company's now withdrawing the question. That's what their evidence did is ask the question. And if I've misunderstood that, then Mr. Cass can clarify. But that's my impression of what the company's doing. 299 MR. SOMMERVILLE: Well, I think Mr. Cass is going to have a right of reply, and we'll await that. Thank you very much, Mr. Shephard. 300 MR. BETTS: Mr. Shephard, just one question. With respect, and I think this was with respect to the communications plans for promotion of system supply, you were suggesting that the Board needn't deal with it now; that if, in fact, Enbridge Gas decides to proceed with a different approach to communications, and in fact, to promote system gas, that it would be dealt with in a subsequent rate hearing. 301 What would your submission be with respect to the damage that may have been done, and particularly with respect to the Board's unusual position of being aware of it in advance? 302 MR. SHEPHARD: I guess the simple answer to that is, if the Board says to Enbridge: We don't like you doing this without talking about it first, without a discussion of it first, but go ahead if you want, and you do it at your peril, I'd be very, very surprised if Enbridge goes ahead with it. 303 If they do, I actually don't know what would happen, what penalty the Board would impose because of the damage that they would create. But I can't imagine that they would go ahead with it. 304 MR. BETTS: I should qualify, too, the way that I expressed that sentence, I didn't want to suggest that it's predetermined that the plan would cause damage. But that's yet to be discovered. 305 So I just wanted to clarify that for the record. 306 Thank you very much, Mr. Shephard. We'll proceed now to the next submission. Mr. Dingwall. 307 SUBMISSIONS BY MR. DINGWALL: 308 MR. DINGWALL: Thank you, Mr. Chairman. When an Issues list is crafted, it's a rather interesting exercise, somewhat akin to basket weaving or attaching Jell-O to a wall with a stapler. You try to include all the things possible that might surround the issue and that might arise from the issue while also wanting, in addition to that flexibility, to pin things down. 309 Issue 5.5 really creates three scenarios that we see, each of them distinct and each of them quite important. The first of these is the company's desire to enter into long-term contracts which have rate impacts for the 2005 year. The company has indicated that it will not be entering into any such contracts, regardless of whatever announcements might have been made, that have an impact for this year. So it seems that that aspect of the issue is effectively determined. 310 The next question is the long-term contracts, and therefore, those long-term contracts don't really put anything forward to give substance to any of the concerns that might be arising under Issue 5.5. 311 However, subsequent to the company's filing of evidence, TCPL filed its own evidence with respect to long-term contracts, not questioning the existing long-term contracts, but rather putting forward a suggestion that there be a visible and determinative process in place in advance of long-term contracting for pipeline commitments that gives the regulator and the intervenors some understanding of what the driving factors are relating to those decisions and some clarity on how those decisions are made, and some establishment of principles of fairness in respect of those contracts. 312 That's quite a different thing from Enbridge suggesting that it's not entering into any for the purpose of the rate year. That's an important policy direction that does tie into what might be determined in 2005, and also what direction the 2005 decision might provide for the company in respect of its future filings. 313 In addition to that, the remaining substantive issue which appears to relate to 5.5 is the promotion of system gas. Now, Mr. Cass has said that while they withdraw their evidence on the necessity of long-term contracts to back into that promotion, and the corporate motivators for the promotion of system gas, they still have an intention to pursue the promotion of system gas. Which seems to me somewhat curious. 314 If the company's view of the issue is that the promotion of system gas is a necessity in order to underlie long-term contracts, then in the absence of putting forward long-term contracts in this year, it seems that that necessity falls off the table. 315 Therefore, to continue with that intention, which clearly from the submission of the marketer community within the context of this motion is quite contentious, seems to be out of a certain context, the only remaining context it would fall under would be O&M budget and specific approvals relating to that. 316 But even with the withdrawal of the evidence, it seems the corporate motivation for the promotion of system gas remains. The company does have its mind set on establishing some degree of regularity and some degree of load expansion, which is one of the obvious goals of a utility, and using that as the basis for the promotion of system gas. 317 On the Issues Day, we made the submission there is a regulatory rift in terms of the treatment of the communications of LDCs in context of marketers, because there are no affiliates in the marketplace currently. There is no code of conduct governing LDCs in terms of how they communicate with customers and how they compare themselves with non-regulated offerings. And there are exemptions within the forms of consumer law which generally govern forms of advertising that are either comparative or make representations in the context of price because utilities are regulated creatures. 318 It seems that in the absence of that regulation, the Board should have some direction which it could provide to the utility, or it should have some say, in order to meet the mandate established in section 2 of the Act, which relates to the context of competition in the marketplace. 319 In the past, many people think of September 11 as related to terrorist activity, some of us go a bit further back to 1997 to the date in which utility communications first gave notice to customers that there was an ABM community out there, in a form of communication that generated a few phone calls back in that day. 320 Subsequent to that, the direct purchase industry committee and its successor worked very closely with the utility in terms of trying to be a vehicle to craft communication that would discuss system supply, that would discuss competition, that would discuss the development of the marketplace and the context of the marketplace. 321 Those groups and bodies are have vanished. Over time, the development of competition seemed to be sufficient to give comfort to the marketing community that they weren't necessary anymore. So the forum for the communication between the company and the marketing communities to discuss these forms of communication, which currently are now providing the appearance of being extremely contentious, is no longer there. That, by default, leaves the Board as the last stop for that discussion. 322 This motion that Ms. DeMarco brought before the Board seems to be effectively a motion for summary judgment in respect of Issue 5.5 on the basis that the company's evidence was not fulsome at the time of the filing of the motion, and is now withdrawn. It's my submission that that may be the correct way in which to determine this matter. There should be a drop-dead date, effectively, when intervenors and the company can't put forward new evidence on new developments; that the book must be closed on what can happen for the determination of what occurs in this rate year. The company has withdrawn its evidence. 323 Energy Probe, which filed evidence in response to that, will likely take a look at its own evidence and likely, in order to make sure that there is no evidence on the record in this matter to determine these issues as they relate to long-term promotion and the position of system -- or long-term contracts and the promotion of system supply will likely withdraw a large portion of its evidence as it relates to those points, in order to clarify the record on that. 324 With respect to, however, the outstanding questions, which are TCPL's suggestion that there be new processes and new visibility in place for long-term contracting for transportation capacity, we support the retention of that. Because that, I don't believe, can be determined on the basis of Enbridge withdrawing its evidence. It's a new position; it's a new point that's being put forward, with respect to the promotion of system gas. If the company seeks to continue to do that which Mr. Cass has been quite forthright about, then that appears to remain an issue for a significant number of the parties in this proceeding. And that too should remain as either an undetermined issue or should be dealt with sparely summarily based on the lack of evidence with respect to long-term supply commitments that were supposedly underpinning this. 325 Those are my submissions. 326 MR. BETTS: Thank you, Mr. Dingwall. 327 MR. SOMMERVILLE: No, thank you. 328 MR. BETTS: Thank you very much. Mr. Ross. 329 SUBMISSIONS BY MR. ROSS: 330 MR. ROSS: Thank you, Mr. Chairman. Members of the Board, TransCanada submits that the evidence set out at Exhibit A.3, tab 5, schedule 2, that is the Enbridge discussion paper of December 18th, 2003 entitled: "Utility Role in Gas Supply" should be retained on the record. TransCanada further submits that Issue 5.5 should be a live issue in this proceeding and be retained. 331 TransCanada's interest in this proceeding is set out in our evidence, some of which has been discussed by my learned colleague already. Broadly speaking, TransCanada seeks to offer comments which may assist in the process of the Board providing guidance on Enbridge's future contractual commitments. Such comments include a discussion of upstream options and may not only be in TransCanada's interest but indeed also in the overall interest of Ontario ratepayers. 332 In this motion, or speaking to this issue, I limit TransCanada's comments to Exhibit A.3, tab 5, schedule 2, and seek to address three key issues. Firstly, a lack of information about future Enbridge plans does not mean that its evidence should be struck. There is a distinct possibility, we would submit, that Enbridge's plans respecting upstream pipeline transportation capacity commitments will arise before its next rate hearing. Enbridge itself has acknowledged that it will consider opportunities that arise before such a hearing. 333 Secondly, Enbridge, itself, through the March 25th, 2004 Issues Day process requested to have Issue 5.5 rest in this proceeding. It's curious, then, to TransCanada why exactly they're seeking to remove it now. Indeed, we further submit that Issue 5.5 is most appropriately dealt with in this proceeding. 334 Thirdly, Enbridge submitted in the December 18th -- sorry, submitted the December 18th, 2003 discussion paper as evidence in this proceeding, and then answered interrogatories in respect of that paper. Again, it's curious to TransCanada why Enbridge seeks to remove it at this stage. This evidence remains relevant to this proceeding because it speaks to Enbridge's supply, transmission and storage arrangements. Indeed, it may assist the Board with providing guidance on Enbridge's contractual, use of inputs vis-a-vis the send-out model, and is relevant to a consideration of overall benefits and implications to ratepayers. 335 For the foregoing reasons, TransCanada submits that the usual measure which Enbridge is suggesting in striking significant parts of the record may impair this Board's ability to fully and effectively deal with Enbridge's application. 336 I'd like to now address each of this issues in turn. Point number one, that Enbridge may provide additional plans. TransCanada submits that why Enbridge has not yet provided information on its plans for commitments to be made prior to its next rate application, there is a distinct possibility that such plans may arise before its next rate hearing. Indeed, Mr. Cass, this morning, I believe, and the transcript will indicate, used the words "at this time," in respect of getting information to the Board. It may be that the time will be in future, in the immediate future, before their next rate hearing. 337 Enbridge itself, in response to TCPL interrogatory 5A -- and if the Board wishes to, they may turn up Exhibit 1, tab 22, schedule 5 -- stated that it will give due consideration to any appropriate opportunities that may arise in the intervening period. This position is essentially repeated at interrogatory response 5B of the same exhibit. There has not been any clear indication, either provided this morning or at any other part of the record, that Enbridge will not pursue these opportunities. And it's reasonable to assume that such plans may be forthcoming. Indeed, some of what Ms. DeMarco spoke to this morning in terms of potential LNG projects may well be relevant in this regard, although I don't know that for certain. 338 Therefore, should the discussion paper and the related interrogatories and responses be permitted by this Board to be removed, and then subsequent to that Enbridge plans arise, then the Board and interested parties may not have been permitted a full and satisfactory opportunity to understand the matters and speak to the matters to be considered. Moreover, keeping this evidence in will not prejudice any future proceeding. 339 I'd like to proceed to point 2, which is that Enbridge requested the Board on the Issues Day to consider Issue 5.5. Enbridge, itself, through the Issues Day process, requested to have Issue 5.5 addressed in this proceeding. Specifically, Enbridge sought this Board's guidance on entering into long-term commitments. It's therefore curious to TransCanada why Enbridge is now looking to have this evidence removed. This Board noted at page 2 of Procedural Order No. 3 that, and I quote: 340 "The essence of a company," meaning Enbridge's submission, "was that the hearing of Issue 5.5 is necessary because the company must currently make decisions about long-term gas supply commitments and cannot afford to wait until the outcome of a generic proceeding on gas supply." 341 This suggests that Enbridge may contemplate long-term plans. TransCanada submits that such plans still may be forthcoming, thus requiring the inclusion on the record of Exhibit A.3, tab 5, schedule 2, and related interrogatories and responses. 342 TransCanada further submits that this proceeding is the appropriate venue to deal with Issue 5.5 and the evidence in question. This proceeding permits the Board to test Enbridge and interested parties; it provides a forum for TransCanada, amongst others, to be adequately heard on the matter. Further, this proceeding gives the Board an opportunity to give an order addressing Issue 5.5, procedural options including examining witnesses and the ability to have a Board order or direction through a Board order may not be possible through other forums, potentially not possible, in particular, through the natural gas forum, depending on what the nature and the process of that forum may be. 343 Further, the timing of other forums may not be sufficient to address the immediacy or potential immediacy of Enbridge's contracting decisions. 344 I'd like to turn to my third point, if I may, and that is, is that Enbridge itself submitted the evidence in question. Enbridge submitted Exhibit A.3 tab 5, schedule 2, in answer to interrogatories in response of this evidence. The fact that the evidence was submitted intrinsically suggests relevance as well as potential contemplation of future plans. I think that's been made clear to some degree by Mr. Cass this morning. Accordingly, it's again curious to TransCanada why Enbridge is looking to have this evidence removed this morning. 345 Exhibit A.3, tab 5, schedule 2, is relevant to this proceeding because it speaks to Enbridge's supply, transmission, and storage arrangements. Enbridge has sought guidance from the Board respecting future contractual arrangements on precisely these issues. Enbridge's request for guidance remains relevant and timely. Indeed, in respect to Direct Energy interrogatory 1, at page 3 -- and if the Board wishes to, they may turn up Exhibit 1, tab 8, schedule 1 -- Enbridge states, and I quote: 346 "In fact, it is likely that Enbridge will be required to make contractual decisions even before the Board can provide guidance in this case." 347 That's pretty timely. 348 TransCanada has a direct interest in ensuring that Exhibit A.3, tab 5, schedule 2, and related interrogatories and responses remain on the record in this proceeding. TransCanada's interest relates to the fact that Enbridge sought guidance from the Board with respect to future contractual commitments. Moreover, as set out in TransCanada's evidence, they have a direct interest because TransCanada provides gas transportation to the Enbridge franchise and is one of Enbridge's potential future upstream option. 349 Removing the evidence in issue from the record may restrict this Board's ability to provide guidance to Enbridge's consideration of options for future upstream transportation, contractual commitments, and a consideration of overall benefits and implications to ratepayers. 350 In conclusion, striking significant parts of the record may impair this Board's ability to gain a full and satisfactory understanding of important matters in issue. TransCanada submits that this proceeding is the most appropriate to deal with Issue 5.5. Removing evidence on a hearing record, especially have interrogatories and responses on that evidence have also been recorded, is an unusual procedural step. 351 It is curious that Enbridge is agreeing to remove evidence it provided on a matter for which it sought guidance and initially introduced evidence. It is unclear to TransCanada, and is not clear to me, based on Mr. Cass' comments this morning, what exactly has changed for Enbridge respecting future contracting comments since the Issues Day where supported the inclusion of 5.5, and since it introduced evidence. 352 TransCanada submits that it would appear nothing has changed except for the fact that interested parties have introduced evidence and that parties have asked interrogatories. Simply because other parties have submitted evidence and Enbridge has received interrogatories on its evidence which may test Enbridge's position is not, surely, reason enough to strike evidence already on the record. 353 On the contrary, it suggests that the evidence was and remains relevant with respect to comments interested parties, TransCanada among them, may want to offer on the process pertaining to Enbridge's future contracting commitments. If the evidence in question was relevant when Enbridge submitted it, TransCanada submits it remains relevant. Indeed, this evidence remains highly relevant at this time in this proceeding, in order for the Board to consider it before Enbridge enters into future commitments. 354 Exhibit A3, tab 5, schedule 2, I therefore submit to this Board, is at its most relevant now, not at a future time, after commitments have been entered into. 355 TransCanada therefore requests that Exhibit A3, tab 5, schedule 2, remain on the record in this proceeding. And I stand open for questions but would like to address a couple of procedural points. 356 MR. BETTS: Thank you. Perhaps we'll hear your procedural points first, and then we'll ask the questions. 357 MR. ROSS: Sure. Just two matters of procedure. One is it's my understanding that VECC has submitted comments in opposition to the exclusion, and I haven't heard that mentioned so far, but I just note that that should be read into the record or procedurally dealt with. 358 MR. LYLE: Yes, Mr. Chair, I was intending to read that into the record once Mr. Ross finished his comments. 359 MR. BETTS: So we'll do that following your submission. 360 MR. ROSS: Thank you, sir. 361 My procedural point number 2 dealt with another matter involving this Motion Day, and that is deficiencies and interrogatories. TransCanada has some concerns respecting the answers it received to its interrogatories 5A and 5B. However, those, of course, may not no longer be issued if the evidence and the interrogatories relating to it become struck. If it does remain on the record, then I would like to take the opportunity, with your indulgence, to speak to deficient interrogatory responses. 362 MR. BETTS: We'll reserve our judgment on that, but we will take it under advisement. 363 MR. ROSS: Thank you. 364 MR. BETTS: Mr. Sommerville first. 365 MR. SOMMERVILLE: Mr. Ross, you indicate that you suggest that Exhibit A3, tab 5, schedule 2, should remain on the record. Are you suggesting that the applicant cannot withdraw the evidence? 366 MR. ROSS: I'm suggesting that it would be in the interest of this Board and in the interests of interested parties for that evidence not to be withdrawn. You're speaking procedurally, I believe? 367 MR. SOMMERVILLE: Yes. I'm asking how, in light of Mr. Cass' withdrawal of the evidence, the evidence can remain? 368 MR. ROSS: I don't have the exact rule in front of me, but I suspect that the Board has some guidance in terms of making procedural decisions. I suspect also there is a public interest aspect to the decisions the Board is able to make. And I would submit that the Board can consider those even in what I believe is an unusual procedural step in Mr. Cass trying to remove his evidence. 369 I'll leave it at that. 370 MR. SOMMERVILLE: Thank you. Those are my questions. 371 MR. BETTS: Mr. Ross, just one question. I think the point you were making was that it's certainly appropriate now to consider these potential long-term contractual arrangements at this time, rather than later. And yet, in many, many courses of events, those decisions, contractual arrangements, are made by the utilities and they're questioned at a later date, in a review of the prudence of those decisions. And why do you see this as being different? 372 MR. ROSS: I do take your point, sir, and I do agree that in a prudency review that opportunity is a real one. I believe at this stage there may be parties, such as TransCanada, that, in the provision of evidence and speaking to the issues and testing of witnesses, could potentially assist the Board in providing guidance, at this stage, to Enbridge. 373 MR. BETTS: Thank you. And I missed -- in fact, I asked Mr. Lyle to help us by asking questions of all of you that might help us with jurisdiction. And I've missed that opportunity in a couple of cases. And I'm going to step out of the normal procedure and invite Mr. Lyle to ask questions of the last three presenters, if there are any. 374 MR. LYLE: As it happened, Mr. Chair, I did not have any questions of the last three presenters. 375 MR. BETTS: How did I know that? 376 I'm going to step out of the procedural norm again, because I missed asking Mr. Dingwall a question. So if you could just help me with this. 377 Can you tell me, you're representing Energy Probe in this matter and Energy Probe has submitted evidence that relates to this, can you tell me what your client's position is with respect to that evidence? 378 MR. DINGWALL: It's our position that, in the event that the motion is successful and we do support those aspects of the motion that I've discussed previously, that we would withdraw, as that's not specifically sought as a form of relief in Ms. DeMarco's motion, those portions of our evidence which dealt with the issues, as we understand them, with the reservation that those portions of the evidence which dealt with other issues or which dealt with, in any fashion, the TCPL evidence, should that remain, would be left in. 379 So, effectively, we'd be probably withdrawing the evidence in total, and then refiling those portions of it which retained relevance. 380 MR. BETTS: Thank you. 381 We would like to try and have all of these submissions before us before we break for lunch, which would allow everybody the opportunity, probably, to go on with the rest of their day's activities. But I appreciate that we're going into two hours here. We will allow reply from Mr. Cass and the final word from Ms. DeMarco. Can everybody take the extra few minutes before we do get a break, which would be possibly even closing? Or do we need a break now? 382 MS. DeMARCO: Your Honour, if I might ask for a five-minute break. 383 MR. BETTS: Quite appropriate, and I sense that that may be good for everybody. So, actually, let's just take a short break. We will come back at 12 o'clock, by that clock, which is about nine or ten minutes from now. Thank you. We'll recess. 384 --- Recess taken at 11:51 a.m. 385 --- On resuming at 12:03 p.m. 386 MR. BETTS: Thank you, everybody. Please be seated. Were there any procedural issues that arose during that short break? 387 PROCEDURAL MATTERS: 388 MR. DINGWALL: Just one before we return to the labyrinth. 389 Energy Probe received some interrogatories on its evidence late yesterday and will seek the indulgence of the Board, depending, of course, on whether or not our evidence continues to exist, to file responses which will be, by necessity, late in respect of those interrogatories, probably Monday or Tuesday next week. 390 MR. BETTS: Thank you, Mr. Dingwall. Anything else? 391 MR. LYLE: Mr. Chair, if I could commence with reading the submissions of VECC into the record? 392 MR. BETTS: Yes, please, and thank you for that reminder. 393 MOTION FILED BY OESC AND SEM: 394 SUBMISSIONS BY MR. LYLE ON BEHALF OF MR. JANIGAN: 395 MR. LYLE: Mr. Chair, Mr. Janigan, counsel for VECC, is unable to attend today but has asked me to read his brief submissions which start: 396 "We are concerned that the motion of OESC and SEM may be less direct to ensuring compliance with the Board order of April 2, 2004 than to the revisiting of the arguments and the objectives of the moving parties before the Board at the time of the making of the order. VECC is not convinced that any perceived deficiencies in the evidence associated with system gas supply ..." 397 MR. BETTS: Mr. Lyle, you may have to slow up just a bit. Reading gives you an advantage. 398 MR. LYLE: "... and its promotion could not be cured by an order for further and better production, if necessary. VECC would accordingly submit that the evidence in question should not be struck from the record." 399 And that's the end of it. 400 MR. BETTS: Thank you. And those were all of the written submissions from parties that aren't represented here? 401 MR. LYLE: Those are the only written submissions I am aware of, Mr. Chair. 402 MR. BETTS: Thank you. 403 Then, Mr. Cass, are you ready to proceed? 404 MR. CASS: I am, sir. Thank you. 405 MR. BETTS: Please go ahead. 406 REPLY SUBMISSIONS BY MR. CASS: 407 MR. CASS: If I may, I would like to begin by making a few comments in response to what was said by counsel for TransCanada PipeLines. 408 I did say I would have no submissions in response to the motion to strike the evidence by the moving parties, which continues to be the case. However, TransCanada has made some submissions on the opposite side of that issue, in suggesting that the evidence should be kept in. And I would just like to make a few comments in response to that. 409 I couldn't begin to count the number of times, but many times during the submissions by TransCanada's counsel, a statement was made that it was curious about Enbridge looking to have the evidence in this proceeding removed, and in that regard, I only wish to remind everyone on the obvious, which is that Enbridge did not launch the motion that is in front of everyone today. Enbridge reacted to the motion. 410 The concern expressed in the motion is, Enbridge has been unable to provide the evidence about the long-term commitments in a fashion that meeting the timetable of this case and satisfies other parties' needs for due process. Enbridge understands that concern and responded to that concern. However, the motion was not brought by the applicant to remove this evidence from the record. 411 And just by way of a little further elaboration on that, counsel for TransCanada asked rhetorically what has changed since Issues Day, when Enbridge argued in support of Issue 5.5. Well, Mr. Chair, there are several things. 412 First, Enbridge argued in support of Issue 5.5, that's correct, and stated its desire for guidance from the Board in respect of the long-term commitments. However, as we all know, the ultimate issue was framed by the Board and determined by the Board. And that was not something that was known at the time of the submissions on Issues Day. As I already said in response, I think, to a question from Mr. Sommerville, my understanding of the issue as framed by the Board, and, of course, the Board would know better, is that all the various parts of it all link back to the issue of guidance in respect of various long-term commitments. So my understanding of the way the Board framed the issue was that it was narrowing the broad scope of the discussion paper that had originally been filed by the company to what the Board considered appropriate in Issue 5.5. And so that's one thing that has changed. 413 The other thing that has changed, of course, as I've already stated, is that the evidence about the long-term commitments that the company is being faced with has not come forward as quickly as expected on Issues Day, and obviously will not come forward that quickly because it was expected to be available even prior to this. 414 And the third thing that's changed is that there is a motion by parties, the moving parties, suggesting that in the absence of more details about these long-term commitments, that there are process concerns about having the issue dealt with in this case. And it's in response to those things that Enbridge has taken the position it has that it's appropriate to withdraw the evidence. 415 Now, I think that's as much as I wanted to say in regard to the submissions by counsel for TransCanada. I have a number of other points, and I apologize, I don't have these organized in any particular order. But if I may, I would like to come to what I think is one of the most important points for me to address today. This is the indication by one or more parties that they are requesting that the Board make some sort of a direction to the company in respect of its customer communication plans. 416 I did start to say a few words about this, and I don't want to repeat unnecessarily what I already said. But I would observe again that it certainly is my belief that there may well be other parties that would be interested in addressing that issue, if they had known that that was the sort of request that was going to be made today. And I did also start to say that, in my submission, the request is really contradictory to the motion. And if I may, I would like to elaborate on that a little more. 417 The one item of evidence that is sought to be struck out, specifically mentioned in the motion as to what the moving parties are seeking to strike out, is Exhibit A.3, tab 5, schedule 5. And the very subject of this is the company's intentions in respect of system gas communications. The motion is specifically requesting that that evidence be struck out. 418 In my submission to the Board, if this evidence is not appropriate in the context of this case, then it's no more appropriate in the context of this case for the Board to give directions on the very subject matter of the evidence. If I might put it another way, in the form of a rhetorical question, how can the Board strike out the company's evidence about what it plans to do in system gas communications in the test year, and then in the absence of evidence on the record, give a direction to the company? 419 In my submission, if what the moving parties wanted was some form of direction in this case about what should happen in respect of system gas communications, that's an issue that they should have allowed to go to the hearing, and they shouldn't be seeking to strike out the evidence on that issue. This is why I say it's contradictory. And not only contradictory; it would be a much more flagrant abuse of process than any of the things the moving parties have complained about. In my submission, it would be a complete lack of process to strike out the evidence on an issue and then give direction on that issue. 420 Now, there are some other submissions that I don't want to dwell on in this regard, but I did feel that I should at least touch upon. One comment was made that I had questioned the Board's jurisdiction to give this form of direction. If I used the word "jurisdiction," I don't recall it, or if I questioned the Board's jurisdiction. The point I was beginning to make was simply, I didn't come here today prepared to argue a question about the Board's jurisdiction to give directions in respect of the company's communications. The evidence that I've just referred to, as I recall, does indicate that this is not normally the sort of thing that requires regulatory oversight. That's at paragraph 5 of the evidence. It talks about the evolution of communications to customers, and it says: 421 "This evolution has not typically required regulatory oversight." 422 That's in the evidence. I didn't come here today to make any jurisdictional submission because, in my submission, any question of the Board giving directions to do something in relation to the evidence that is sought to be struck out is just not an issue that should be entertained today. 423 Now, that leads me to a couple of related points. There have been suggestions today about things that the Board might do. One suggestion was perhaps Issue 5.5 should be recast. The other suggestion is the one about direction. 424 In my submission, those are not things that should be left to be resolved without a hearing. In other words, if the issue is going to be recast, then there needs to be evidence, and it needs to go to hearing. 425 In my submission, one can't recast the issue and then expect to proceed on the evidentiary base before the issue was recast. Similarly, although the Board has heard my submissions that no direction should be given in respect of system gas communications, if the Board is inclined to do that, that should go to a hearing, and there should be some evidence on it. In my submission, it's quite wrong to strike out the evidence on it and then give the direction. Quite backwards. If the Board is inclined to even entertain any such issue, then there should be evidence on it, and it should go to the hearing. 426 I'm sorry, sir. My points are a little disjointed so I'm just trying to get back to my train of thought, and put them forward in some sort of coherent fashion. 427 I think I will just skip around, now, to various things that I heard in the submissions, and just give my comments on them, if I may. 428 Now, one of the things I heard several times was to the effect that, since the issue of these long-term commitments has somehow disappeared or I think one phrase was "dropped off the table," then all the issues drop off the table. 429 I just want to, again, clarify what I have been trying to make clear already. The company is not in any way suggesting that any of these issues have dropped off the table. The company is not suggesting that the issue of long-term commitments has dropped off the table. The company is simply saying that, in the context of this case, unfortunately the timing of the decisions is just not going to work in a fashion that would allow evidence to be brought forward and dealt with in the usual fashion without disrupting the proceeding. 430 Now, there's also been some exchange about, well, what about the effect if the company goes ahead with its plans and then the Board is asked to review it at some later time? 431 I know the word "damage" was used, and I know it wasn't intended in the broad sense that one might interpret the word "damage," but I ask the Board to consider that, without intending to attribute this to anyone in this room, but there would certainly be people in the natural gas industry, at least a few, who might think it would be advantageous if consumers of natural gas be kept in the dark about system gas as an option. And the company is simply saying that it doesn't feel that it would be fulfilling its responsibility if it just went along with the notion, Let's keep consumers in the dark about the system gas option until something happens to change that. 432 The company feels it has an obligation to communicate with its customers and to be sure they are properly educated. A lot was said about promotion of system gas. I think if you look at the company's evidence, the company has not said that it intends to promote system gas. The company has specifically said, in paragraph 6 of the evidence: 433 "It is not planning any special marketing or promotional campaigns related to system gas at this time." 434 If you look through the evidence at Exhibit A3, tab 5, schedule 5, you see words like "increase awareness," "the company has been largely silent and intends to be more proactive," "the corporate reputation survey identified a need for communications related to gas prices," this is what is talked about in the evidence. 435 Again, maybe it's semantics. Maybe other people would call this promotion. But I urge the Board to look at the company's evidence as to what it intends to do, and to realize that what the company is talking about is communication and education of customers and increasing their awareness of system gas as an option. And again, I can reiterate for the Board, the company's intention is to do what is set out in this evidence. Its intention is not to do some promotion that others may have a fear that it's going to happen even though not set out in the company's evidence. 436 I'm looking at my notes, Mr. Chair. If I might just have a moment. Much to my surprise, I've worked my way, I think, through all of my points. 437 MR. BETTS: Go right ahead and review. 438 MR. CASS: Oh, yes, and I'm sorry, I did have one point across the page of my notes. And it really just follows from what I was just saying to the Board about the company's evidence on system gas communications and what I actually said previously when the small brochures were handed up. 439 The comment was made, perhaps more than once, that there's some sort of fundamental shift occurring in what the company does by way of communications with its customers. The company disagrees most strongly with any idea that this is a fundamental shift. In fact, the company believes it's not very much different from what has happened already. This is why I passed around the Board insert that has previously been provided to customers. I suggest to the Board, if that insert were to be compared with what is in Exhibit A3, tab 5, schedule 5, you would not see a fundamental shift at all; you would simply see the company trying to be more focussed on the very sort of education that was in that Board item, Exhibit K.1.1. 440 Thank you, sir. 441 MR. BETTS: Mr. Sommerville. 442 MR. SOMMERVILLE: Mr. Cass, just so that I'm clear. The Exhibit K.1.2, this is an existing communication? 443 MR. CASS: Correct. 444 MR. SOMMERVILLE: So this is not the refocussed, external communication? 445 MR. CASS: Absolutely not, sir. Mr. Sommerville, in fact, that was presented just by way of explaining why the company feels it should do some better communication. 446 MR. SOMMERVILLE: Thank you. 447 MR. CASS: So, yes. I'm sorry, sir. One other point, and it's a very quick one, and I don't think it's that important. It occurred to me, so I should touch on it. 448 Counsel for Direct Energy took the Board to Section 21 of the OEB Act, which indicates that the Board may, of its own motion, give directions, and those directions would be incidental to the exercise of its other powers. 449 I just have a concern about the manner in which that section is being presented to the Board, because it's being presented on the basis: Well, a motion isn't necessary because the Board can do this. 450 Yet, the difficulty is that the parties are asking the Board to give this direction. In other words, in my submission, parties can't avoid bringing a motion for something they're asking the Board to do by saying: Well, you, the Board, can do this on your own. 451 If that was permissible, one could generally avoid bringing motions. One could come to the Board and say: I would like production of a document, and I don't need to bring a motion because the Board can give direction to do that incidental to its powers. 452 So, in my submission, it's not appropriate for somebody who has a request to make of the Board, not to bring a motion and say: The Board can do this on its own. If there's a request to the Board, it should be a motion. 453 Sorry. 454 MR. BETTS: That's okay. Thank you. 455 I have just a couple of questions for you for clarification. I'm correct in saying that -- well, you've, in fact, stated that Enbridge has not provided evidence with respect to the information that would be necessary to fully discuss this 5.5. And you've indicated that it's timing that's preventing Enbridge from doing that. Am I correct in assuming that there are activities underway that fall into this framework, the framework of Issue 5.5? 456 MR. CASS: Not being totally sure what you mean by "activities," sir, but, yes, the issues are still out there. 457 MR. BETTS: Let's say negotiations, planning. 458 MR. CASS: Yes. If I might just state anecdotally, I hope nobody will mind my mentioning this because I think it's obvious to everyone, I saw in the National Post this morning a very small article about one of the LNG projects that had been the subject of discussion in connection with Issue 5.5 with the Board. So yes, these things are very much out there, and they're very much alive. It's the timing that's the concern. 459 MR. BETTS: So are you in a position to say that there is no evidence that relates to those arrangements, or no evidence that you are prepared to provide at this time? 460 MR. CASS: Well, I think, sir, it's a difficulty of having anything concrete that would really be of use to the Board in providing direction. In other words -- 461 MR. BETTS: What about policy decisions? What about planning discussions? 462 MR. CASS: Yes. I think, sir, it was our expectation and understanding that the Board would want some details to look at in order to address this. 463 So it is the concern about not having the details as opposed to the policy and the general proposals that are definitely alive in the industry. 464 MR. BETTS: I'll get a little more direct, then. Is it possible that there is evidence relating to proposed plans for promotion of system gas among the customers? 465 MR. CASS: Oh, no, sorry, sir. I was talking in terms of evidence about long-term commitments. 466 MR. BETTS: That's fair, I appreciate that. 467 MR. CASS: The evidence on system gas communications is what I've already referred to. And I think it's as explicit as the company can be about what it plans for system gas communications in the test year. That's Exhibit A3, tab 5, schedule 5. The inability is to provide details of long-term commitments that the company may be asked to make because thing have just not reached that point where specifics are being put in front of the company to make decisions on. 468 MR. BETTS: Very well. In reading 5.5, I don't see the word -- no, that's okay. In reading 5.5, as it was restruck, I don't see the word "details." 469 MR. CASS: Yeah. 470 MR. BETTS: But that's certainly your interpretation? 471 MR. CASS: Yeah. And there were the other words -- I'm just trying to -- yeah. So that would be the following page of the Procedural Order, where the Board said: 472 "Depending on what direction from the Board the company is seeking, the Board may require disclosure at a greater level of detail than has been provided." 473 That's what we had in mind. And then again, just the general feeling of fairness to everybody that we should be bringing forward some detail rather than general notions of things that are happening in the industry. 474 Mr. Chair, if we have in any way been wrong in our understanding of the framing of the issue, you know, we'd be happy to hear about that and proceed accordingly. But we did feel that it would be an expectation of the Board and others as well that, for people to have something to sink their teeth into, that they wanted more by way of detail. 475 MR. BETTS: Thank you, Mr. Cass. Let me just see if I have anything else for you here. I thank you very much. 476 MR. CASS: Thank you. 477 MR. BETTS: Ms. DeMarco. 478 FURTHER SUBMISSIONS BY MS. DeMARCO: 479 MS. DeMARCO: Thank you, Mr. Chair. I wonder if I might start by first responding specifically to a number of the individual comments in the submissions that have been made. And if I can first start with the comments of TransCanada. I believe that Mr. Cass and I are on the same page in his response, specifically in relation to his comments as to what has changed since Issues Day. And so, instead of repeating those, I will simply agree with his comments there. 480 In addition, I'm wondering if we might possibly be able to accommodate TransCanada's request to give the Board guidance and give the company -- 481 MR. SOMMERVILLE: Sorry, Ms. DeMarco. Just so that I'm clear, and it's just a matter of clarification, you said that you were on the same page with Mr. Cass in his response as to what had changed between the Issues Day and today. Is that correct? 482 MS. DeMARCO: This was in relation to -- yes, it is, Mr. Sommerville. 483 MR. SOMMERVILLE: In regard to Mr. Ross' submissions. 484 MS. DeMARCO: Regarding that it was curious that the company was withdrawing its own evidence. 485 MR. SOMMERVILLE: But you associated your comments with Mr. Cass and not Mr. Ross, is that correct? 486 MS. DeMARCO: Yes, Mr. Cass said specifically in relation to what had changed since Issues Day. Mr. Ross had made the submissions that nothing had changed since Issues Day. 487 MR. SOMMERVILLE: Thank you. I just wanted to be clear about that. Thank you. 488 MS. DeMARCO: So just to be crystal clear, I guess, at this point, Mr. Ross had submitted that nothing, in effect, had changed since Issues Day which would warrant the withdrawal of the company's evidence. Mr. Cass had indicated that several issues had changed, some of them being Procedural Order No. 3, the scope of Issue 5.5, and the instant motion that we're currently in. 489 MR. SOMMERVILLE: Thank you. 490 MS. DeMARCO: In addition to Mr. Cass' comments to Mr. Ross, I'm wondering if there is another procedural avenue whereby to remedy Mr. Ross' concerns about getting his evidence in regarding guidance on upstream contract considerations. And if I could turn the Board to Procedural Order No.3, which is outlined in the motion record at tab 2. And specifically, Appendix A to that Procedural Order. 491 It's just a thought for the Board's consideration, but I'm wondering if Mr. Ross' concerns could be accommodated in the context of Issue 5.1: Gas, transportation and storage costs which address evidence set out in A3, tab 2, section 1, which would appear to encompass considerations about transportation and guidance thereon. 492 Those would be my comments in relation to Mr. Ross' submissions. 493 Secondly, in relation to VECC's submissions regarding promotion, and specifically, the Board could, potentially, remedy the situation by an order directing further and better production of materials in relation to these issues, specifically long-term contracting and the associated implications. 494 The notice of motion specifically indicates where we're at in the hearing now makes it very difficult to have the procedural protections and have due process in relation to any such issues that would now be produced. And Mr. Cass submissions have the effect of indicating that there is not detail which can be produced. So we do not feel that that's a viable option in this regard. 495 If I could then turn to Mr. Cass' submissions, and I again apologize, because they are in relation to the order set out. So we might be dancing around a little bit. 496 First, in relation to the suggestion that our relief requested today is somehow not properly put before the Board or intervenors in that it's not specifically itemized in the notice of motion and the motion record. I might point out that the notice of motion was filed on May 7th, which was a week ago today. Mr. Cass' indication that he was going to withdraw his evidence came yesterday, in the afternoon, 4:54 in the afternoon. We have then had to determine how we would proceed in relation to his indication that he will withdraw his evidence. 497 What truly is curious is that what you have before you is not a true withdrawal of the evidence. You have the company indicating: We will withdraw our evidence and the issues do not go away. We are just going to forge ahead with the proposals that were contained in that evidence. This is the action -- this is the position that puts us in a challenging position where we do now have to address specific actions proposed by the company in forging ahead and ensure that procedural fairness is associated with any such actions 498 Secondly, the company indicated that this is not a fundamental shift, as OESC and SEM have submitted. Rather, we're undertaking things that are not much differently in the past. Let's call a spade a spade. 499 The issue, as stated by the utility in its evidence in A, tab 5, schedule 2, is nothing other than the role of the utility in system gas. This is not a small issue about system gas communications. This is not a small issue about educating customers. This is a fundamental issue about the role of the utility in providing system gas as the company's evidence which will be withdrawn indicates. 500 I apologize for the pause; I just want to make sure that I'm not missing any other of Mr. Cass' issues here. 501 MR. BETTS: That's fine. Take your time. 502 MS. DeMARCO: What Mr. Cass indicated was that it would be a flagrant abuse of due process if the Board were now to provide direction. Certainly, it's our position that it would be a far greater abuse of process if the Board were not to provide direction at this point. 503 We adopt and adhere to Ms. Aitken's submissions on the Board's jurisdiction to provide that direction. And we absolutely feel it necessary, in the interim, until this issue is squarely and fairly before the Board in an appropriate proceeding, that the company not be permitted to forge ahead and change fundamentally the role of the utility in providing system gas. This would be the greatest abuse of due process owed to all intervenors and parties here. 504 There is a significant impact, in the submission of my clients, on competition in the natural gas industry, particularly in relation to the Board's purview and mandate set out in section 2(1). What we really are speaking of here is what the companies, company, in this case, should be doing in relation to system gas, in relation to promoting system gas, in relation to long-term contracting, which was the first issue that was preconditioned and premised -- that preconditioned and premised the need to promote system gas. 505 That is the question of why you need to discuss anything or why the company needed to look at promotion of system gas costs. 506 The Board should potentially take direction from its decision in RP-2001-0032 regarding how this issue should properly come before the Board for its decision. Specifically, in looking at these fundamental issues of long-term contracting and the implications thereof, and Section 6.2.4 of the Board's decision, the Board indicates that: 507 "It is also important that the application be complete and include all the supporting evidence and documentation, including," and I emphasize, "statements of underlying assumptions and analysis. The Board notes that in this proceeding, EGD's original application was vague and incomplete, and the company continued to supplement and update evidence and file new evidence well into the oral phase of the proceeding, almost nine months after the original application was filed. We do not want to be in this situation in the instant proceeding." 508 In addition, at paragraph 6.2.6, the Board specifically indicated: 509 "The information must also be presented in a manner that is clear, concise, and easily understandable to those experienced and knowledgeable in the field. It is not of assistance to the Board to present the information in a manner that tends to obfuscate its relevance to the proceeding." 510 In conclusion, it is our submission that the issue of relevance to the Board in this proceeding is as presented by the company related to long-term contracting and any specific details thereof. Should it wish to take actions that are consequential and preconditioned on those long-term contracts, it needs specific authority from the Board to do so. 511 MR. BETTS: Thank you. Now, just one question for you, Ms. DeMarco. 512 You've clearly indicated that you continue to support your motion. And you've also added that some direction should be given by the Board with respect to the potential for promoting system gas. Am I correct in saying that, first of all? 513 MS. DeMARCO: That would be in the realm of your comments regarding the potential damages of the company making that change. 514 MR. BETTS: If the Board, in fact, were not to provide any comment, direction, or advice with respect to Enbridge's promotion of system gas, or a change in its communications with its customers, do you still stand in support of your motion? In other words, are you prepared that your motion stand without any such direction or advice by the Board? 515 MS. DeMARCO: In that case, Mr. Chair, the company would not have discharged its obligations under Section 19 and Section 36(6) to, in effect, discharge its burden of proof prior to making these fundamental changes. So, should that be the case, it's our understanding that the company would not be going forward with the proposal to promote system gas, and in that regard we would stand behind our motion. 516 MR. BETTS: You've kind of side-stepped my question a little bit and I'm going to try to make it clear because I didn't make it clear the first time. 517 If, in fact, the Board were to take no position at all with respect to Enbridge's future plans on communications with its customers, are you still requesting that all of the evidence -- are you requesting that the remedies in your motion remain before the Board? Are you satisfied that the Board would decide in favour of those? 518 MS. DeMARCO: In relation to the specific remedies that the evidence be struck specifically in relation to the contracts, and the implications for the contracts which would be the system gas costs, yes. The issue itself still, then, would remain on the issues list, which would give rise to a host of other activities that might be necessary to appropriately afford procedural protections and due process to the issue remaining on the issues list. 519 MR. BETTS: Very careful answer. I love that. Any other questions? 520 The Panel has no further questions. Mr. Lyle, anything you can help the proceeding -- 521 MR. LYLE: Actually, Mr. Chair, I did have a question for Mr. Cass. 522 Mr. Cass, you've indicated that it's the company's position that it does not intend to promote system gas but, rather, better communicate the option of system gas; is that a fair characterization? 523 MR. CASS: Yes. Again, I think the detailed explanation is in the particular piece of evidence. 524 MR. LYLE: And, if the Board was not to proceed with Issue 5.5 in this proceeding, would the company provide the Board and intervenors with copies of any new informational material, including the call centre scripts and the IVR messages, so that the Board and intervenors could ensure for themselves that there was no promotion of system gas going on? 525 MR. CASS: Might I have a moment, Mr. Chair, please. 526 The answer is, yes, Mr. Chair, on the understanding that this would be for confirmation that the company is doing what it said in the evidence it would do, not that there is some sort of approval process that would flow from that. 527 MR. LYLE: Given your answer, Mr. Cass, would the company have any objection to a Board direction that it provide that material for the purpose you've set out? 528 MR. CASS: Again, that's fine, Mr. Lyle, Mr. Chair, with the -- on the basis that I described, which would be, for informational purposes, to show people that the communication is in line with what the company has said it would do in its evidence. Yes. 529 MR. LYLE: Thank you, Mr. Cass. 530 Ms. DeMarco, if you want to respond to that. 531 MS. DeMARCO: I actually have a question of you, Mr. Lyle. I wonder if I can clarify your question -- 532 MR. LYLE: I don't think you're allowed to do that, Ms. DeMarco. 533 MR. BETTS: He has not been sworn in at this point. 534 MS. DeMARCO: Clarification, then, for Mr. Cass. 535 Mr. Cass, was it your understanding that Mr. Lyle's question was in relation to a direction to submit that in advance of actually making those submissions? Or something else? 536 MR. CASS: Sorry, I'm not sure what submission you're talking about. 537 MS. DeMARCO: I'm sorry, communications. 538 MR. CASS: I'm assuming this is going to be something in the test year. We won't be in the middle of a rate case at the time; this is my assumption. So in that context, the company would provide, for informational purposes, as Mr. Lyle described, the particular information. 539 Are you saying, would they do it in advance of it actually going as bill stuffers? Yes. 540 MS. DeMARCO: And a further clarification. It is your assumption that there would be no rights of parties at that point to make submissions in advance? 541 MR. CASS: Sorry, Mr. Chair, if I may deal with these questions through you. 542 MR. BETTS: Just look at me when you're talking and I'll be okay. 543 MR. CASS: Again, I don't know when this is going to happen, or in what context. But working with the assumption that we're not in the middle of any particular case at that time, I don't really see the forum for submissions by parties. I suppose if a party saw a particular document and had a concern and felt that that raised an issue that could somehow be brought before the Board, the company can't stop that, but I'm not envisaging that this is going to happen in the context of an ongoing proceeding before the Board. 544 MR. DINGWALL: One of the things that's happened in the past when the Board has made rate orders -- 545 MR. BETTS: Mr. Dingwall, I've got to be a little bit careful here that we don't turn this into a wide-open dialogue. This has introduced a different - and I appreciate this, Mr. Dingwall - a different kind of aspect that has not been discussed. I'm going to ask, would anyone like to make a comment with respect to this? And I see Mr. Dingwall clearly would. 546 MS. AITKEN: And I would as well. 547 MR. BETTS: Ms. Aitken. And Ms. DeMarco would like to make one closing comment. 548 Mr. Dingwall first. 549 FURTHER SUBMISSIONS BY MR. DINGWALL: 550 MR. DINGWALL: Thank you, sir. 551 One of the things that has happened in past rate cases is that, as part of a direction on a rate order - and this came about, I think, specifically with respect to compressor fuel issue a number of years back - the direction to the company has been to work with various market participants to develop a form of communication. And that's certainly been something that's worked in the past. I'm merely throwing that out as a caution. 552 MR. BETTS: Ms. Aitken? 553 FURTHER SUBMISSIONS BY MS. AITKEN: 554 MS. AITKEN: Thank you, Mr. Chair. My very brief submission is simply that Mr. Cass' position on this just puts form startlingly over substance. His position is that we're going to take the guts out of the jurisdiction of the Board to review this kind of a communication. You can't do it now, and to his credit, he's being very forthright, you can't do it when there's not an ongoing rate proceeding. 555 So, in our submission, Enbridge's position simply tries to take hostage the jurisdiction of this Board in the sense that it's just not for them to object to an intervenor raising with the Board its concern about the danger they see associated with a particular path that Enbridge has directly, advertently, filed and brought to the attention of the Board, and put on the public transcript this morning, that they do intend to change their messaging. 556 They've done so in a very -- I mean, to be fair, very forthright and bold way. But in our submission, it cannot be the case that this Board is not able to exercise its jurisdiction to issue a direction, if so minded, just because it's brought to the attention of the Board that there is danger fraught with a particular proposed course of action. That's what the intervenors are here to do, to participate, to provide perspectives, and, as appropriate, to identify what they may see as dangers fraught with particular proposed courses of action. And that is simply all that was being done. And in that context, that in no way, in our submission, could possibly interfere with the Board's jurisdiction to make directions on its own initiative, or as other relief in the context of a motion, the complexion of which changed the night before it was heard. 557 Thank you. 558 MR. BETTS: I think I'm going to take as the last submission on this, Ms. DeMarco. 559 FURTHER SUBMISSIONS BY MS. DeMARCO: 560 MS. DeMARCO: Just in summary, then, I would certainly support Ms. Aitken's comments on section 21 and the Board's jurisdiction in relation to the directional questions. In summary, then, it is our submission that this is an issue of fundamental importance to the Board, to the industry, and to the natural gas community as a whole. We are looking at a fundamental change to the utility's role in the provision of system gas, which should be brought on squarely, through the appropriate procedure, in the appropriate forum to be heard as such. 561 Thank you. 562 PROCEDURAL MATTERS: 563 MR. BETTS: Thank you. We will now be left with the interesting task of deliberating on what we've heard today. And you've all given some very compelling arguments and information for us to consider. I'm going to ask, I think, any and all of you, are there issues relating -- that the Board should be aware of relating to the question of urgency? What is the timing with respect to this? Does anyone have a submission that they would like us to be aware of? Is it not urgent? Is it urgent it be dealt with before you commence a settlement process? Comments? 564 Ms. DeMarco. 565 MS. DeMARCO: We understand the difficult position that the Board is now in. But nonetheless, should the Board be able to provide direction going into or as early as possible in the settlement process commencing next week, it would be greatly beneficial to the parties. 566 I have one other matter that I've forgotten to formally do, which is to provide you with the list of the interrogatories that would be associated with the evidence. 567 MR. BETTS: Thank you. And perhaps, Mr. Lyle, we should deal with that. 568 MR. LYLE: Perhaps I'll mark it as an exhibit, Mr. Chair? 569 MR. BETTS: Yes, please. 570 MS. DeMARCO: In doing so, can I just caution that there were numerous problems with service in the proceeding to date, so we may not be in receipt of all the relevant interrogatories. I do believe that they are all covered, particularly the CME's interrogatories. We may have missed a few there. 571 MR. SOMMERVILLE: Are you suggesting that there may be parties to this proceeding who didn't get notice of this proceeding? Is that the service that you're referring to? 572 MS. DeMARCO: Not, it's the specific interrogatory responses, Mr. Sommerville. 573 MR. SOMMERVILLE: Thank you. Thank you. 574 MR. ROSS: If I may also respond to your question, Mr. Chair, I think it would be helpful to have that determination for Monday's intervenor meeting, would be my input on it. And initially, I note the issue of deficient interrogatories, which I mentioned before is sort of an awkward issue, because it's, of course, tied to the evidence in play. 575 MR. BETTS: Excuse us for just a moment. 576 [The Board confers] 577 MS. DeMARCO: Mr. Chair, I wonder if I could just note that Monday is, in fact, set aside as an intervenor conference, whereas the settlement conference proper commences on Tuesday. I wonder if that affords you any ... 578 MR. SOMMERVILLE: Thank you. I have a question, I guess, for Ms. DeMarco and Mr. Ross. You've indicated that you do think that there is some urgency with respect to the question, answering this question, for the purposes of the settlement conference. Can you expand on that? What specific area of the settlement conference would be dependent upon a resolution of this issue? 579 MR. BETTS: That would be the motion, rather than Mr. Ross' second concern about -- 580 MR. SOMMERVILLE: Yeah, excluding the interrogatory -- the alleged inadequacy of interrogatory responses. But with respect to this issue, I'm having some difficulty in understanding its urgency for the purposes of the settlement conference. 581 MS. DeMARCO: I'll take a first go at that. To the extent that the intervenors approach the settlement in the context of a global agreement which has been attempted in the past, any particular issue has relevance there. Is it going to hold up an entire settlement? We'd be in a better position to comment on that after the intervenors' conference on Monday. 582 Certainly it's not one of the financial issues. 583 MR. SOMMERVILLE: That's my point. That's sort of what's in the back of my mind, is that there isn't a specific financial rate order element that -- like, I guess, other than a potential item related to the O&M budget as it concerns promotion generally. But, other than that there is not a financial lynchpin? 584 MS. DeMARCO: To the extent that the financial lynchpin comment is fair, it's very fair in terms of the specific settlement negotiations. However, there is almost an element of negotiation strategy that comes into play in relation to "divide and conquer" versus consolidation. 585 MR. BETTS: We don't want to hear all of your strategies. 586 MR. SOMMERVILLE: We don't want to hear about things that we -- 587 MR. ROSS: I would agree with all of the comments that have been made in terms of it not being a financial lynchpin point but being, perhaps, an issue more of strategy, just knowing what's on the table or what might not be on the table. 588 Maybe I should characterize my words as being helpful but not essential, might be my view on it. 589 MR. SOMMERVILLE: Thank you, Mr. Ross. 590 MR. BETTS: Thank you. And the Panel has considered the question of whether we'll hear your concerns right now about the amount of information you're receiving in terms of interrogatories. And we believe that that should be dealt with later, at a later time, if that becomes necessary. We'll simply make this decision based on what we've heard on its merits, and that may, in fact, force further actions by any or all of you. 591 MR. ROSS: Thank you. 592 MR. BETTS: Mr. Lyle? 593 MR. LYLE: Yeah, just one note of cleanup, Mr. Chair. We do wish to enter as an exhibit the list of interrogatories that Ms. DeMarco provided as Exhibit K.1.3. 594 EXHIBIT NO. K.1.3: LIST OF INTERROGATORIES PROVIDED BY MS. DeMARCO 595 MR. LYLE: And I would ask Ms. DeMarco if she could provide this list to the other parties, including the applicant, and if the applicant or any other party has a concern with this list, if they could bring it to the Board's attention as soon as possible. 596 MR. BETTS: Thank you. That would be very helpful. 597 The Board will be deliberating on this question today. I don't know whether that will, in fact, provide us with an answer today. I think the best I could do is to suggest that if anybody wanted to be present, if we don't deliver an oral decision today, my expectation is it will be a written decision. But the Panel could decide otherwise. 598 So, if there is an oral decision to be delivered, it will be delivered today. We could provide parties a half an hour's notice, if they wanted to be present when that happened. If that was your desire, I would ask you to leave a contact number with Mr. Schuch of our Board, and we will endeavour to call you at perhaps a half an hour's notice of that decision. Is that okay with everybody? 599 Great. Thank you very much. Thank you all for your participation. Thanks to the court reporter. I think this was called fairly quickly, and she dealt with some fairly screaming tones in her earphones as well. And thank you to our staff support team; it was very, very helpful. 600 We will do our best to reach a fair and reasonable decision on this one. Thank you all very much. 601 --- Whereupon the hearing adjourned at 1:00 p.m.