Decision 2008-136 Request for Review and Variance of Decision 2005-031: Alberta Electric System Operator, Needs Identification Document Application, Edmonton Calgary 500 kv Electric Transmission Facilities Review and Variance Request by Lavesta Area Group on Utility Cost Order 2007-005 December 19, 2008
ALBERTA ENERGY AND UTILITIES BOARD Decision 2008-136: Request for Review and Variance of Decision 2005-031: Alberta Electric System Operator, Needs Identification Document Application, Edmonton Calgary 500 kv Electric Transmission Facilities Review and Variance Request by Lavesta Area Group On Utility Cost Order 2007-005 Application No. 1505283 December 19, 2008 Published by Alberta Energy and Utilities Board 640 5 Avenue SW Calgary, Alberta T2P 3G4 Telephone: (403) 297-8311 Fax: (403) 297-7040
Contents 1 DECISION... 1 2 BACKGROUND... 1 3 JURISDICTION... 3 4 THE LAVESTA REVIEW REQUEST... 4 5 FIRST ISSUE... 5 5.1 View of Lavesta... 5 5.2 Views of Other Interested Parties... 6 5.3 Findings of the Review Panel... 6 6 ORDER... 13 EUB Decision 2008-136 (December 19, 2008) i
ALBERTA ENERGY AND UTILITIES BOARD Calgary, Alberta REQUEST FOR REVIEW AND VARIANCE OF DECISION 2005-031: ALBERT ELECTRIC SYSTEM OPERATOR, NEEDS IDENTIFICATION DOCUMENTS APPLICATION, EDMONTON- CALGARY 500 KV ELECTRIC TRANSMISSIONS FACILITIES REVIEW AND VARIANCE REQUEST ON Decision 2008-136 UTILITY COST ORDER 2007-005 Application No. 1505283 1 DECISION Having carefully considered all of the evidence, the Alberta Energy and Utilities Board (EUB/Board) hereby varies Utility Cost Order 2007-005 (UCO 2007-005) by awarding $13,400.00 in fees to Mr. Joseph Anglin, in recognition of activities performed on behalf of the Lavesta Area Group (Lavesta), in the capacity as a representative/coordinator of that group. 2 BACKGROUND The First Need Application and the Review Hearing In May 2004, the Alberta Electric System Operator (AESO) filed an application pursuant to section 34 of the Electric Utilities Act, describing the need for transmission upgrades between Edmonton and Calgary. The application also described the AESO s preferred option (option 5 of 12) to address the identified need; a 500 kv transmission line located within what became known as the West Corridor. The EUB considered the application at a public hearing in December 2004 and January 2005. On April 14, 2005, the EUB issued Decision 2005-031, which approved the AESO s application. Six parties subsequently requested the EUB to review and vary Decision 2005-031. The Board granted a review hearing to consider the suitability of the West Corridor for the proposed transmission line (the R&V Hearing). The R&V Hearing was held in Red Deer, Alberta in July and August of 2006. On December 6, 2006, the Board issued EUB Decision 2006-114 in which it upheld its previous decision. On January 26, 2007, the Board issued, UCO 2007-005, which ruled on costs claimed by participants in the R & V Hearing. On August 2, 2007, the EUB issued an errata to UCO 2007-005 to address three claims by UPTAG and its members that were filed after the issuance of that cost order. Two of the claims were made by UPTAG members who where unaware that they were eligible to file cost claims. The third claim was for a consultant hired by UPTAG who filed its account after the issuance of UCO 2007-005. AESO took no position regarding these additional claims. On March 2, 2007, Lavesta applied for a review and variance (R&V) of UCO 2007-005. Lavesta sought to vary UCO 2007-005 in two instances: EUB Decision 2008-136 (December 19, 2008) 1
by increasing the EUB s approved mileage rate; and by awarding in full the costs claimed on behalf of Mr. Joseph Anglin, the Vice-Chairman of Lavesta. Subsequent Events and the Appointment of the Review Panel While reviewing Lavesta s review request and related materials, the EUB was also considering an application by Altalink Management Ltd. (Altalink) for approval for the construction and operation of the 500 kv transmission line within the West Corridor. The Hearing Panel originally set the Altalink hearing down for February 12, 2007; this date was later adjourned to March 12, 2007 and then to April 19, 2007. When the hearing re-opened it was disrupted and the Hearing Panel adjourned the proceeding to secure an alternative venue. In light of the events of April 19, 2007, the Hearing Panel decided to change its hearing format. It moved the hearing to the Provincial courthouse in Rimbey. Officials of the Board also hired an outside contractor to assist with hearing security. It later came to light that one of the persons hired engaged in improper conduct that was authorized by a senior EUB official. On September 30, 2007, the Board issued EUB Decision 2007-075 in which it declared that the Altalink hearing, as well as EUB Decisions 2005-031 and 2006-114, were void for reasonable apprehension of bias. On page 9 of Decision 2007-075, the EUB stated the following with respect to potential new applications for upgrades to the transmission system: Acting Board Members could be added to the EUB by the Lieutenant Governor in Council to form a panel to consider the applications. Should this occur, the Board would urge that the government ensure that this panel includes judicial or quasi-judicial experience at a high level, as well as relevant experience such as engineering expertise and familiarity with relevant issues affecting persons over whose lands such development would pass. This panel should be made up of persons who have had no involvement whatsoever with the prior hearings or events related to them. On March 12, 2008, the EUB Board members met to decide how to move forward with Lavesta s review request in light of Decision 2007-075. The Board established a new Division consisting of Acting Board Members Mr. John Curran, Q.C., Ms. Donna Tingley, and Mr. James Turner (the Panel ) to consider the Lavesta review request. These individuals were appointed to the EUB s acting Board member list after the issuance of Decision 2007-075 and had no involvement in any of the matters leading up to the issuance of Decision 2007-075. Following its appointment, the Panel reviewed UCO 2007-005 and the submissions and correspondence from interested parties. Recognizing that the matter had been outstanding for some time the Panel wrote to parties on June 4, 2008 and advised as follows: The EUB s review and variance practice normally involves two steps. First the Board decides whether it should review the decision in question on the basis of error of law, jurisdiction or fact or on the basis of new facts or change in circumstances. Parties are not obliged to file evidence at this stage but are merely required to make their case on a prima facie basis. If the Board decides that a review is appropriate it will consider as its second step whether the original decision should be varied. If a review hearing is granted 2 EUB Decision 2008-136 (December 19, 2008)
parties will file evidence to support their position in the same manner as if it was a hearing in the first instance. Recognizing that this process has been outstanding for a considerable length of time, the Costs Review Panel asks that parties include with their submissions all the information and evidence that has not been filed previously that they wish the Board to consider for both stages of the review process. In response to this letter, the Panel received additional submissions from Lavesta and Altalink. 3 JURISDICTION EUB s Authority to Consider Lavesta s Request On January 1, 2008, the EUB was replaced by the Energy Resources Conservation Board (ERCB) and the Alberta Utilities Commission (AUC). However, the Lavesta review proceeding commenced prior to the coming into force of the Alberta Utilities Commission Act (AUCA) and thus is a matter to be considered by the EUB. Subsection 80(5) of the AUCA provides for the continuation of the EUB for the purposes of review proceedings commenced prior to the coming into force of the AUCA: (5) On the coming into force of this section, the persons serving as members of the Board continue as members of the Board for the purposes of subsection (3), but unless otherwise appointed or reappointed do not become members of the Alberta Utilities Commission or continue as members of the Energy Resources Conservation Board. EUB s Authority to Review Cost Orders The EUB s authority to review a cost order is described in sections 58 and 46 of its Rules of Practice. Section 58 of the Energy and Utilities Board Rules of Practice states: 58(1) A party to a costs order may, within 30 days of the date of service of the order, apply to the Board for a review of the order. (2) An application for a review of a costs order must be made in accordance with section 46. Section 46 reads in part as follows: 46 (5) The Board shall determine, with or without a hearing in respect of an application for review, the preliminary question of whether the order, decision or direction made by it should be reviewed. (5.1) When determining the preliminary question, the Board shall grant an application for review, (a) with respect to a review of an order, decision or direction other than a review under section 40 of the Energy Resources Conservation Act, if the Board determines that, (i) in the case where the applicant has alleged an error of law or jurisdiction or an error of fact, the applicant has, in the Board s opinion, EUB Decision 2008-136 (December 19, 2008) 3
raised a substantial doubt as to the correctness of the Board s order, decision or direction, or (ii) in the case where the applicant has alleged new facts, a change in circumstances or facts not previously placed in evidence, the applicant has, in the Board s opinion, raised a reasonable possibility that new facts, a change in circumstances or facts not previously placed in evidence, as the case may be, could lead the Board to materially vary or rescind the Board s order, decision or direction. 4 THE LAVESTA REVIEW REQUEST Following the close of the R & V Hearing, interveners filed their cost claims with the Board and AESO. On October 31, 2006, AESO wrote to the EUB and specifically commented on the fees claimed by Lavesta on behalf of Mr. Anglin. AESO contended that Mr. Anglin had no legal training and was not an expert, and that the EUB should take this into account when determining the costs awarded to him. AESO also commented on the role played by Mr. Anglin at the hearing. However, AESO did not forward its comments to Lavesta. Further, due to an administrative error, the EUB forwarded the AESO letter to an incorrect mailing list which did not include Lavesta s counsel. As a result, Lavesta never had an opportunity to respond to AESO s concerns. In recognition of this error, the EUB forwarded the AESO s October 31, 2006 letter to interested parties on March 19, 2007, and invited them to respond to the AESO s comments and comment on Lavesta s request for a review. The EUB received 15 responses supporting a review of UCO 2007-005. As noted previously, the Panel wrote to interested parties on June 4, 2008 to advise that it would consider any and all evidence that interested parties wanted to file in support of the review request. In this respect the Review panel gave effective notice to interested parties of its intention to move into the second phase of the EUB s review process, the consideration, based upon the evidence of the parties as to whether UCO 2007-005 should be upheld, varied or rescinded. As the EUB s Costs application process is itself a written proceeding, the Review Panel determined that written submissions from parties on this matter would be appropriate. The Review Panel considered the following documents in making its decision: Correspondence from Julian Bodnar to Richard McKee dated June 5, 2006, June 7, 2006, and June 9, 2006 Lavesta Submission on EPCOR Utilities Inc. Motion, dated June 15, 2006 Correspondence from Julian Bodnar to Richard McKee dated June 27, 2006 Correspondence from Julian Bodnar to JP Mousseau and Doug Larder, dated June 28, 2006 Correspondence from Julian Bodnar to Richard McKee dated June 28, 2008 Email from Joseph Anglin to Richard McKee dated June 30, 2006 Information Request 1 and Information Request 2 to AESO, dated June 30, 2006 and July 3, 2006, respectively 4 EUB Decision 2008-136 (December 19, 2008)
Correspondence from Julian Bodnar to JP Mousseau dated July 14, 16, 20, 24, and August 23, 2006 Lavesta Hearing Budget prepared by Mr. J. Bodnar, dated June 16, 2006 Hearing Transcripts from the R&V proceeding Lavesta final argument and reply argument, dated August 28, 2006 and September 11, 2006, respectively Lavesta Cost Claim dated October 12, 2006 UCO 2007-005 Correspondence from James H. Smellie to Holly Lee dated October 31, 2006 Correspondence from Julian Bodnar to JP Mousseau and Richard McKee dated November 17, 2006 Correspondence from Joseph Anglin to JP Mousseau dated November 17 and November 20, 2006 Correspondence from Julian Bodnar to JP Mousseau and Richard McKee dated November 27, 2006 Correspondence from Julian W. Bodnar to the EUB dated March 2, 2007 Email from Jessica Ernst to Richard McKee (EUB) dated April 2, 2007 Correspondence from Jamie Valecourt to Richard McKee (EUB) dated April 9, 2007 Correspondence from Joan Valecourt to Richard McKee (EUB) dated April 9, 2007 Correspondence from Dieter and Lou-Aanne Lohman to Richard McKee (EUB) dated April 9, 2007 Correspondence from Louis Regnier to the EUB dated April 10, 2007 Correspondence from Warren Werner to the EUB dated April 10, 2007 Correspondence from Donna Regnier to the EUB dated April 11, 2007 Correspondence from Lynne Ings to the EUB dated April 11, 2007 Correspondence from C.A. Lee to the EUB dated April 11, 2007 Correspondence from Greg Troitsky to the EUB dated April 11, 2007 Correspondence from Joanne D. Lee to the EUB dated April 12, 2007 Correspondence from Mark Stewart to the EUB dated April 12, 2007 Correspondence from Marie Barkley to Richard McKee (EUB) dated April 12, 2007 Correspondence from Thomas D. Lee to the EUB dated April 13, 2007 Correspondence from Roger Wilson to the EUB dated April 13, 2007 Correspondence from Cindy and Mick McLeod to Richard McKee (EUB) dated April 14, 2007 Email from Marie Barkley to Richard McKee (EUB) dated April 18, 2007 Correspondence from the Lavesta Area Group to JP Mousseau (EUB) dated June 9, 2008 Correspondence from Altalink Management Ltd. to JP Mousseau (EUB) dated June 20, 2008 5 FIRST ISSUE 5.1 View of Lavesta Lavesta applied for review and variance of UCO 2007-005 on two grounds: first, that the EUB s approved mileage rate in the Scale of Costs is unreasonable, and second, that the EUB made an error when it decided to deny Lavesta s claim for Mr. Anglin s professional fees. In support of EUB Decision 2008-136 (December 19, 2008) 5
the second ground Lavesta noted that it had no opportunity to respond to the AESO s comments and argued that: The Board disregarded the extent and significance of Mr. Anglin s involvement. The Board disregarded Mr. Anglin s qualifications. The Board discriminated against Mr. Anglin when it awarded substantial costs to other participants, who Mr. Bodnar submits, demonstrated equal or less participation and presented equal or less value in similar evidence. The Board s comments in UCO 2007-005 are unfairly biased against Mr. Anglin s role and effectiveness in the proceedings. The positions expressed by Mr. Anglin are legitimate and are confirmed expressions of Lavesta members. On June 9, 2008, Lavesta filed its supplemental submission in support of the second stage of the review request. Lavesta emphasized that Mr. Anglin s involvement in the proceeding was valuable to the group and Lavesta s counsel. Lavesta contended that the Board misinterpreted the context of Mr. Anglin s testimony in the R & V proceeding. It stated that Mr. Anglin s decision to not provide evidence as an expert was a strategic decision designed to advance Lavesta s argument. Lavesta confirmed that it chose to have Mr. Anglin present evidence as a landowner rather than as an expert. It argued that this decision should not diminish Mr. Anglin s qualifications. Lavesta contended that the Board discriminated against Mr. Anglin by awarding costs to other experts whose evidence was of lesser value than that provided by Mr. Anglin. Lavesta argued that the Board provided evidence of that discrimination when it did not address the concerns raised by Mr. Bodnar, when it issued an errata to UCO 2007-005. Lavesta contended that the EUB Decision 2007-075 validated the concerns raised by Mr. Anglin and Mr. Bodnar and, is further evidence of the EUB s bias against Mr. Anglin. Lavesta confirmed that Mr. Anglin s views represented the legitimate expression of the group s views and should be respected. Finally, Lavesta argued that its review request should be broadened to include full reimbursement to Mr. Bodnar. 5.2 Views of Other Interested Parties The only interested party to respond to the Panel s request for additional submissions was Altalink Management Inc. who took no position with respect to Lavesta s request for review and variance. 5.3 Findings of the Review Panel 1. Discretion to award Costs As a Utility proceeding, the Board s authority to award costs to interveners arises from section 68 of the Public Utilities Board Act. The Panel observes that section 68 of that Act does not establish an inherent right to recover hearing costs. In that respect the Panel notes that section 68(1) states: 6 EUB Decision 2008-136 (December 19, 2008)
68 (1) The costs of and incidental to any proceeding before the Board, except as otherwise provided in this Act, are in the discretion of the Board, and may be fixed in any case at a sum certain or may be taxed. (Emphasis added). 2. The EUB s Mileage Rate The Panel finds that the costs awarded to Lavesta for mileage were reasonable in the circumstances, consistent with the EUB s Scale of Costs and consistent with the mileage costs awarded to other participants in the proceeding. The Panel considers that Lavesta and its members know, or ought reasonably to have known, that the EUB would award mileage costs based upon its published rate in the Scale of Costs. The Panel therefore finds that the costs awarded in this respect were reasonable and upholds the mileage costs awarded to Lavesta in UCO 2007-005. 3. Mr. Anglin s Claim for Professional fees As the Panel understands it, Lavesta has alleged that the EUB erred in fact, law or jurisdiction by failing to appreciate the nature and extent of Mr. Anglin s involvement in the hearing and the value of his contribution to the proceeding. To consider this claim, and whether UCO 2007-005 should be varied or amended, the Panel carefully reviewed all of the documents listed in section 5. While the Panel does not intend to comment on every document reviewed, it finds that the inclusion of specific excerpts from the Lavesta budget and cost claim are necessary to fully understand the nature of the activities undertaken by Mr. Anglin and the fees claimed for those activities. On June 19, 2006, Lavesta submitted a budget for its participation in its proceeding. In the covering letter Mr. Bodnar, Counsel to the Lavesta stated the following Lavesta has retained the services of Joe Anglin to facilitate communications amongst its members, administer the Lavesta Area Group and assist it and members in preparation for the Hearing. Mr. Anglin s resume and details of his expected role are attached. Mr. Anglin would claim costs as a consultant, and for administrative assistance in these proceedings. His professional fee rate is $250 per hour. His total anticipated costs claim would be in the range of $40,000, plus applicable, disbursements and taxes. In the budget itself, Lavesta stated that Mr. Anglin s activities on behalf of Lavesta would include the following: Review of the Needs Application (May 7, 2004) document. Review of exhibits and excerpts of the transcripts of the initial hearing. Review of relevant related documents, such as the AESO 10 and 20 year plan and AESO s corridor selection data. Meeting with Lavesta members to identify issues and advise members on potential system impacts and explaining technical information. Additional information gathering/research as required. EUB Decision 2008-136 (December 19, 2008) 7
Preparing and filing affidavit evidence/ expert report. Assisting counsel in preparing information requests and analyzing responses. Testifying at the oral hearing (one day). Monitoring proceedings in person (one day) and by way of transcripts (remainder of hearing). Assisting counsel with final argument and reply submissions. In its budget, Lavesta characterized Mr. Anglin as both a research consultant and expert and calculated his anticipated fees to be approximately $40,000 based on the Board s highest hourly rate of $250.00. In its October 12, 2006 cost claim, Lavesta described Mr. Anglin s assistance as professional/expert and stated that it was claiming costs for Mr. Anglin s services in the following three capacities: a) Mr. Anglin assisted Lavesta s members and individuals in the organization, preparation, presentation and arguments of their case in relation to the utility transmission need determination, planning and development. b) Mr. Anglin consulted in assisting Lavesta s members and individuals in the organization, preparation, and arguments of their case in relation to their concerns as affected persons and landholders. c) Mr. Anglin also assisted myself as counsel in matters of preparation, attendance at the Hearing, argument, and reply. You will note that I am a sole practitioner and unlike other counsel throughout this process and at the Hearing did not have the benefit of junior counsel to assist me. We have claimed those costs as a disbursement estimated in the amount of $15,000 in relation to my role as counsel. The Panel understands that the fees claimed on behalf of Mr. Anglin were apportioned as follows: $33,500 (134 hours @$250/hr) for item a, $58,500 (234 hours @$250/hr.) for item b, and $15,000(no breakdown, however equates to 60 hours @ $250.00/hr.) for item c. In total Mr. Anglin sought to recover $107,000.00 in fees for approximately 428 hours of work performed in support of the Lavesta intervention. In it s cost claim Lavesta further explained: His (Mr. Anglin s) role in these three capacities included: i) Review of proceedings and documentation related to the Needs Application and Hearing ii) Review of exhibits and excerpts of the transcripts of the Needs Hearing. iii) Review of relevant related documents, including the AESO 10 and 20 year plan and AESO s corridor selection data. 8 EUB Decision 2008-136 (December 19, 2008)
iv) Arranging meetings of Lavesta members. v) Meeting with Lavesta members to identify issues and advise members on potential system impacts and disseminating and explaining technical and economic information. vi) Additional information gathering/research as required. vii) Assisting counsel in preparing correspondence in relation to the information requests and analyzing responses. viii) Assisting counsel in preparing correspondence in relation to the Motions. ix) Monitoring proceedings at the Review Hearing and review of Transcripts in progress at the Review Hearing. x) Assisting counsel with organization, preparation, and attendance of witnesses. xi) Assisting counsel with preparation for cross examination. viii) Testimony and Argument at the Review Hearing. ix) Assisting counsel with final argument and reply submissions. The task for this Panel is to determine whether Mr. Anglin is entitled to claim fees for those activities, as an expert, or otherwise, under the EUB s regulatory scheme for cost recovery. The Panel accepts that the work performed by Mr. Anglin related to the organization of the Lavesta Group and the preparation and presentation of its intervention to the Board. Based on the materials reviewed the Panel understands that Mr. Anglin purports to have undertaken these activities in three capacities: as an expert consultant hired by Lavesta to assist in the preparation and presentation of the Lavesta intervention (category a above) as a principle organizer of the Lavesta group and the Lavesta intervention (category b above), and as a surrogate second counsel to Mr. Bodnar (category c above). The Panel will comment on each capacity in turn. Category a Expert/Consultant ($33,500.00) In its budget submission and in its cost claim Lavesta sought to recover fees on behalf of Mr. Anglin in his capacity as a professional or expert. Accordingly to determine the reasonableness of the fees claimed in this capacity, the Panel must first determine whether Mr. Anglin performed the duties of an expert in this proceeding. Directive 31A states the following with respect to expert or consulting costs: An intervener may choose to be assisted by one or more experts when preparing and presenting a submission at a public hearing. Those experts may be registered professionals, may carry on a consulting business, and/or may be expert in a certain field due to practical experience and/or specialized training. In UCO 2007-005 the EUB ruled on what evidence was relevant to the proceeding on page 10, where it stated: Relevant evidence presented at the hearing related to agricultural impacts, residential impacts, environmental impacts, electrical considerations (including reliability concerns associated with multiple high voltage lines located within a single corridor or right of way), health and safety concerns, and First Nations issues. EUB Decision 2008-136 (December 19, 2008) 9
The Panel notes that Lavesta did not challenge this aspect of UCO 2007-005 and the Panel accepts this description of the relevant evidence as accurate. Mr. Anglin s resume was included in the materials reviewed by the Panel. At the time of the proceeding Mr. Anglin was the President of the Anglin Stewart Investment Group Inc., a position he held since 2000. The Panel understands that in this capacity Mr. Anglin was involved in the trading of currencies and commodities. From 1999-2000, the panel understands that Mr. Anglin was the President and Managing Director of Anglin Communication Technology in Gibsons, BC. Mr. Anglin described his role in this organization as providing leadership, strategic planning, training and development of continuing education programs for technical trades in highspeed digital data transmission. Prior to that, Mr. Anglin held various positions with the Bell system of telephone Companies from 1984-1996. In terms of Education, Mr. Anglin has a Bachelor of Science in Business Management from New Hampshire College and a Masters of Science in Adult Education from National Louis University. Mr. Anglin also has training in electrical engineering from Bell System Engineering, but is not an electrical engineer. Mr. Anglin s resume also states I have in-depth knowledge of landowner s issues as they relate to surface rights and the Alberta Energy Utilities Board (EUB). When the opportunity arises, I voluntarily speak on behalf of landowners negotiating with oil and gas companies. Based upon its review of the materials before it, the Panel finds that Lavesta failed to establish that Mr. Anglin possessed sufficient knowledge or experience in any of the relevant subject matters addressed at the proceeding to qualify as an expert as the EUB has defined that term. The Panel notes the following in this respect: Mr. Anglin is not a professional engineer. Neither his educational background or his work history suggest that he has any formal training in the routing of major high voltage transmission lines or assessing the high level impacts associated with such an endeavor. Mr. Anglin commenced his testimony at the proceeding by stating I am not here as an expert 1 Lavesta stated in its letter to the panel dated June 9, 2008, that the decision to present Mr. Anglin s evidence as landowner evidence was a strategic decision. Considering the above and the nature of the issues raised by the proceeding, the Panel finds that Mr. Anglin lacked the necessary experience and education to be considered an expert or professional consultant at the R&V hearing. However, the Panel recognizes that the EUB has previously awarded costs to individuals who have performed the role of coordinators or representatives to large groups. Based on the materials, the Panel accepts that Mr. Anglin assumed a number of administrative and organizational duties that extended beyond what would normally be performed by a member of an intervener group. In this respect the Panel notes the large size of the Lavesta group and the efforts of Mr. Anglin in coordinating communications amongst the Lavesta members and 1 Transcripts, Volume 4, August 8, page 677 10 EUB Decision 2008-136 (December 19, 2008)
between Lavesta and its lawyer. In the Panel s view, it is appropriate to compensate Mr. Anglin for the 134 hours of work he performed in this capacity. At the time of the proceeding the highest hourly rate awarded by the Board to a representative/coordinator was $125.00. The representative/coordinator in that case had appeared before the Board on numerous occasions over many years and was familiar with and respectful of the EUB s hearing process. The Panel understands that this is the first EUB hearing that Mr. Anglin attended in this capacity and considers that the fees awarded to him must be commensurate with his experience in that role. In the Panel s view an hourly rate of $100.00 is appropriate given his experience with the process and the level of the assistance he provided the Lavesta group. Category b Principal Organizer ($58,500.00) In UCO 2007-005 the ERCB determined that it would award honoraria to interveners in accordance with Directive 31A despite the fact that the R&V hearing was a utility proceeding as that term is defined in the EUB s Rules of Practice. The EUB provided the following reasons for this decision on pages 3 and 4: UPTAG and Lavesta claim honoraria for group organization, hearing preparation, and hearing attendance; LLPG/566 claim honoraria for group organization and hearing attendance. Directive 031B does not provide for the payment of honoraria to individual landowners for their participation in a utilities proceeding. However, the review hearing was granted specifically to hear evidence from landowners regarding the suitability of the West Corridor and was similar to an energy hearing to which Guide 31A, Guidelines for Energy Cost Claims would apply. In Decision 2006-114, the Review Panel stated the following about the formation of UPTAG, LLPG/566, and Lavesta. The Review Panel recognizes that the formation of UPTAG, LLPG/566 Group, and Lavesta required considerable efforts by their respective members. The Review Panel notes that collectively these three groups represented about 1500 individuals and considers that their cooperation added considerably to the effectiveness of their respective presentations and to the efficiency of the hearing process. The Review Panel thanks the members of these groups for their assistance in this regard. Given the nature of the proceeding and the efficiencies created by the formation of the three landowner groups, the Board considers it appropriate to vary its practice and award honoraria for group organization, hearing preparation, and hearing attendance in accordance with the guidelines provided for in Directive 031A. Having decided to compensate Mr. Anglin for his efforts in the capacity as a representative/coordinator, the Panel finds that it would not be appropriate to additionally compensate Mr. Anglin for activities undertaken by him in his capacity as a principle organizer of Lavesta and its intervention. The Panel notes that the EUB s cost policy is not intended to fully reimburse a party for all the costs associated with an intervention, especially for activities undertaken by an individual intervener or a member of an intervener group. While the Panel recognizes that such individuals may spend considerable time preparing an intervention, the EUB s policy is to award such individuals honoraria rather than an hourly wage. In the Panel s view, participation in a public hearing of this nature is, to some degree, an altruistic exercise where interveners participate to ensure that their position is fairly represented without the expectation that all their time will be compensated for. The panel considers that when Mr. EUB Decision 2008-136 (December 19, 2008) 11
Anglin assumed the role of Lavesta s Vice-Chair, he should have accepted that he would not be compensated for some of the work he performed in that capacity. The Panel finds that the organization honoraria of $12,000 and a preparation honoraria of $8,000.00 awarded to Lavesta are reasonable, consistent with Directive 31 A and consistent with the organization and preparation honoraria awarded to the other large groups who participated in the proceeding. As noted in Decision 2007-005, Lavesta was entitled to direct that some or all of the $20,000 honoraria awarded to Lavesta could have been attributed to Mr. Anglin for his efforts. Category c Surrogate Second Counsel ($15,000) As the Panel understands it, this portion of the claim relates to preparatory activities undertaken by Mr Anglin to assist Mr. Bodnar in a manner similar to that of a second counsel. The Panel finds that it must reject this claim for the following reasons: Mr. Anglin is not a lawyer or a paralegal and there is no evidence to suggest that he is qualified to provide any assistance of a legal nature to Mr. Bodnar. Lavesta failed to describe or explain how the preparatory assistance provided by Mr. Anglin in this respect differed from that provided in his other capacities. The claim was based upon an estimate by Mr. Bodnar; Lavesta did not quantify the number of hours incurred or the hourly rate charged. The claim was charged as a disbursement by Mr. Bodnar. However there is no evidence to suggest that Mr. Anglin submitted a bill to Mr. Bodnar or that Mr. Bodnar paid Mr. Anglin for these services. Having regard for the foregoing, the panel finds that Mr. Anglin is not eligible to claim costs for the work performed in this capacity. 12 EUB Decision 2008-136 (December 19, 2008)
6 ORDER IT IS HEREBY ORDERED: 1. Alberta Electric System Operator shall pay intervener costs in the amount of $13,400.00 to Mr. Joseph Anglin. 2. Alberta Electric System Operator shall record in its Hearing Cost Reserve Account the allowed intervener costs in the amount of $13,400.00. Dated in Calgary, Alberta on this 19th day of December, 2008. ALBERTA ENERGY AND UTILITIES BOARD (original signed by) John F. Curran, Q.C. Acting Member (Presiding Member) (original signed by) Donna Tingley Acting Member (originally signed by) Jim Turner Acting Member EUB Decision 2008-136 (December 19, 2008) 13