Introduction December 1, 2019
This post is one of two long reviews related to Alberta’s regulatory evolution since 2007. This incident, triggered by a controversial hearing on a Transmission line and a charge of spying levied against the AEUB may have contributed to subsequent events that changed the regulatory environment in Alberta. Although I primarily wanted to put it on the record for historical purposes, I also consider there to be some parallels with the recent controversy about remediation Agreements (Deferred Prosecution Agreements) as related to the SNC-Lavalin controversy. In particular, both stories involved inordinately lax media coverage and were exacerbated by questionable positions on the part of virtually all political parties and commentators at the time. The result involved significant injustice visited upon members of the public service who were essentially trying to discharge their responsibilities in the public interest. This incident provided strong motivation for me to review the SNC-Lavalin controversy at great length. I had moved on from the AEUB several years before the event in question and although I suspected the reporting of the day was missing important aspects of what actually happened, I was too busy to focus on it at the time. Later, after all the damage was done—so to speak, I investigated and uncovered the injustice. So a remnant of regret survives since I think I was one of very few who could both understand and communicate the real story. I determined not to make that mistake in the SNC-Lavalin case. I chose to review the incident by assessing the only objective assessment I ever found on the issue–a journal article written by Alice Wooley, who was at the time a Professor of Law at the University of Calgary and who was appointed to the Court of Queen’s Bench in 2018. Although I criticized her article in some areas, it was a largely fair assessment with which I largely agreed, save for some critical issues that are set out below. Nonetheless I am deeply appreciative of her insights and fairness which enabled me to elaborate my own thoughts more effectively.
Original Article January, 2014
The article in review is “Enemies of the State? The Alberta Energy and Utilities Board, Landowners, Spies, a 500kV Transmission Line and Why Procedure Matters”. (J. Energy Nat. Resources L. 234 (2008).) The author, Alice Wooley, addressed a controversial hearing under the Alberta Energy & Utilities Board (EUB), wherein the panel was accused of spying on interveners and their counsel. This incident was dealt with extensively and very negatively in the media, in spite of two formal reviews that were more objective. Alice Woolley reviewed the events and provided a balanced critical commentary; her analysis set out useful considerations that may apply to many regulatory organizations and circumstances. However, that analysis was limited in its scope, neglecting some important elements in a larger picture. A broader coverage of the legislative environment the Board faced, and related Board processes, leads me to a reasonable interpretation of events that is far less critical of the Board’s role. Emphasis on a complete context changes the conclusions about the Board, and may provide a useful caveat to Woolley’s recommendations about applying underlying principles to legal rules, both for tribunals and for the courts that occasionally review their decisions. These issues are timeless. They will always be important for tribunals and for those who review the decisions of tribunals.
In 2007 an ill-fated hearing into an application for a new transmission line was convened in Red Deer, Alberta. The hearing was the last stage in a series of proceedings reviewing the need for and subsequently, the location of, a high-voltage transmission line to strengthen the provincial grid by enhancing the connection from the northern part of the province’s electrical system to that in the south. These proceedings were taking place under new legislation that had radically altered the environment surrounding transmission planning, and changed the approval process for transmission upgrades and enhancements. The hearing generated local controversy and was disrupted both vocally and physically, causing the hearing panel to adjourn and reconvene in another community some weeks later. At the reconvened hearing, Board staff expressed fears for their safety. The Board hired covert security personnel, one of which some interveners invited to participate in a conference call. When he did and was later revealed to be part of the security team, intervening parties charged that the Board’s spying had compromised lawyer-client confidentiality. This became broadly referenced in the press as “the spy scandal”. The media coverage of this event was questionable, eroded the Board’s mantle of credibility, and may have contributed, in subsequent years, to wholesale changes to the regulatory environment in Alberta .
To put this event in proper context, I first summarize the broad policy environment in which it took place . A list of Acronyms and a timeline is provided in the Appendix to facilitate greater appreciation of the context. I then set out Woolley’s approach to analysing these events, and the issues she identifies as important in determining whether or not the process was fair. I consider each of Woolley’s issues from the viewpoint of a former regulator, in the light cast by a more complete picture of events than she appears to have used. Although this leads me to different conclusions, I believe Woolley provided a positive contribution to the literature on regulation through her careful consideration of these matters. I hope my viewpoint as a former regulator, while it alters the interpretation of events and thereby alters the nature of Woolley’s contributions, also helps make them more usable and dependable.
Background: The New Regulatory Process for Transmission System Upgrades
In the mid-1990s, The Government of Alberta decided to restructure the electricity market. The commodity price of electricity would be deregulated, to be determined in a competitive market, whereas delivery would continue to be regulated as a monopolistic activity. Before that time a utility company would seek approval for both the need for new transmission and its location at the same time. It would file a Needs Identification Document (NID) application under Section 34 of the Energy Utility Act, seeking approval of the need to upgrade the transmission system and the specific facilities applied for, as well as the exact routing or location of those facilities, to meet that need. The EUB would consider these issues simultaneously and, if a hearing was necessary, it would deal with both need and facilities location, or routing, in one process.
Following deregulation, the Government introduced new legislation to guide transmission system upgrades. A new not-for-profit entity, the Independent System Operator (ISO), was created to oversee the transmission system. The Alberta Energy Systems Operator (AESO) was appointed to be the ISO. AESO was charged with reliably and economically operating the transmission system and planning enhancements to meet the needs of the market.
The new legislation changed the approval process from a single stage to two stages. The first stage required AESO to establish both the need for transmission upgrades and alternative general proposals to meet the need in an NID application to the EUB. The Board would consider the application in two steps, first, whether the need was established, and, if so, whether the proposed high-level solution was acceptable with respect to system planning and performance, high-level routing, and economics. If a hearing was required, it would consider the need and high-level solutions, but not the site-specific configuration and location of the facilities.
The second stage would look at site-specific issues and happen only if the Board approved the NID application. In that event, the AESO would assign the project to a Transmission Facility Owner (TFO). The TFO would then prepare a transmission facility application under the Hydro and Electric Energy Act (HEEA) . This application would include the configuration of the proposed transmission line and its precise routing. If a hearing was required, it would focus on site-specific impacts on safety, environment, economics, and other localized issues . (At the time of the hearing, the HEEA still contained a requirement for the applicant to address need. This set up a conflict that may have been a major cause of the controversy. This is addressed below)
Events related to the Hearing Controversy
The AESO applied, in 2004, to expand the transmission system from Edmonton to Calgary, putting forward 13 high-level Concepts located generally in three corridors in the East, Central, and West areas of the province. It elected Concept V, in the West Corridor—thereby triggering a formal hearing. This set in motion the new process envisaged under the legislation, and led to the following steps by the EUB:
• A Prehearing Meeting seeking views of industry and the public on the Board’s role.
• The NID Hearing December–January, 2005.
• Hearing Decision 2005-031, approving the NID, including Concept V in West Corridor.
• Assignment to a TFO, AltaLink, and commencement of specific facility planning.
This last step involved the residents of the West Corridor, which up to then had been only one of three corridors that might have been chosen. These residents appealed the decision on grounds that insufficient notice of the NID hearing had prevented them from being heard on the issues.
As laid out more completely in the Appendix, the Board had gone to unusual lengths to publicize how it would proceed under the new legislation. Each step noted above had been advertised in all major newspapers in Calgary, Edmonton, and Red Deer as well as in roughly 30 weekly newspapers in rural areas. Each step involved both advertised notice and a decision that was available on line to the public, and both notices and decisions discussed how the new legislation altered the regulatory process.
The Board responded that although the Notice had met legal requirements, given the nature of NID hearings under the new legislation, it would be in the public interest to allow the residents to address the high-level location proposal. The question of need, however, would not be addressed at the review hearing. Notice of the review hearing was sent directly to the applicants, previous participants, and was, again, broadly advertised. In addition the Board held three well-attended information sessions in Red Deer, Bluffton, and Rimbey to assist participants in understanding and preparing for the hearing.
The review hearing was held in mid-2006, and led to a re-evaluation of the original high-level decision that incorporated the residents’ evidence. Nonetheless, that previous decision was confirmed . (See EUB Decision 2006-114 “Request for Review and Variance of Decision 2005-031. http://www.auc.ab.ca/applications/decisions/Decisions/2006/2006-114.pdf ). This enabled AltaLink to continue with its application, including the specific routing proposed for the transmission line. That application was the subject of the hearing in 2007 that was eventually disrupted and never completed, and became the basis of Woolley’s critique of the Board’s regulatory practices.
Enemies of the State?… How Woolley assessed the Board’s Process and Behaviour
Woolley’s analysis has three general elements. First, she describes the facts surrounding the incidents, then she addresses whether and how the Board may have gone wrong in dealing with the situation, and finally, she raises the bar somewhat, arguing that the Board may have met a test based on legal rules of fairness but failed a more important test that incorporates the underlying principles of procedural fairness, on which those legal rules are founded. Her discussion of how the Board erred focussed on the following areas :
1. The failure to provide effective notice to West Corridor landowners on the initial EUA proceeding.
2. The failure to impose proper structure and order on the hearing process from the outset.
3. The decision to shift to a written hearing, with some cross examination, and to segregate landowners in response to the Board’s security concerns.
4. The failure to provide specific information related to the security threats to explain that decision.
5. The retention and use of covert private investigators to observe the interveners and the Board’s own later finding that this action implied bias.
The core principles of procedural fairness under which her preferred, more stringent, test would be applied, were also set out as follows:
A. Accuracy (administrative decisions should be accurate).
B. Dignity (administrative decisions should respect the dignity of those affected by the decision).
C. Legitimacy (administrative decisions should be acceptable to the citizens to whom they apply).
Her discussion of the five possible errors in procedure and the three core principles includes a helpful review of legal considerations in the case at hand and the philosophical basis for the principles associated with rules of fairness. That review embodies much of the value I attribute to the article. I accept the basic rules of fairness as well as the core principles and then attempt to show that, given the context in which it was operating, the Board’s actions satisfy both.
This raises an obvious question as to how two analyses, using the same facts, and accepting the same principles, can result in very different conclusions. One possible source of difference is that the facts used in the analyses are not identical, or are interpreted differently. I do contend that Woolley’s focus on the final hearing causes the omission of some relevant facts. Another possibility is that both the areas of possible error and the underlying principles have subjective components that we are interpreting differently. As well, there is a possibility that our preconceptions about the Board have coloured our respective approaches to the analyses. I offer my views on each of these matters as I review the issues; however, it may be that my own preconceptions are less visible to me—readers beware.
I begin with a few examples of a general critical nature about Woolley’s presentation. She is entitled to present her case as she thinks best, but some things may suggest mild bias. She phrases each issue as a “failure” of the Board. She cites supporting remarks from judges allowing leave to appeal, even though that is a very preliminary stage of getting to the final answer. Such remarks do not necessarily carry much authority regarding facts. It may well be that none of the appeals against Board decisions would have been successful if events had allowed them to be adjudicated by a court. She cites intervener counsel, after the ‘debacle’ of April 16th when so-called ‘Singing Grannies’ and other disruptions forced adjournment, describing that as indicating interveners frustration: ‘I, frankly, was shocked at what happened’, with no hint of acknowledgement that the presence of the Grannies implied a planned disruption. Her focus essentially adopts the viewpoint only of the interveners, whereas purely objective analysis would have simply set out the facts and questions arising and considered the pros and cons at some level. Moreover, it would not be entirely out of place to acknowledge the possibility that interveners were strategically motivated by elements of the not-in-my-back-yard (NIMBY) attitude that is not uncommon with respect to industrial facility proposals. It is relevant to note the numerous motions raised by intervener counsel at the previous review and variance hearing. One of these, charging the panel as biased, was even opposed by the other large resident intervener group. Then there were some 17 motions asking for either adjournment or the rescission of Decision 2005-031. This was dubbed by opposing counsel as the omnibus motion and each element of it was denied. But residents, not recognizing a strategy, might be forgiven for feeling frustrated . (EUB Decision 2006-114, Appendix E, discusses each of these motions. One resident group opposed, one was neutral and all other participants opposed every motion, except the First Nations. It is difficult to read that discussion without thinking that much of this activity would fairly be described as frivolous). In essence, Woolley ascribed no responsibility for the ultimate consequences to interveners, even though she accepted the fact of orchestrated attempts to disrupt the hearing, as discussed in the report of Justice Perras. (D.W. Perras, An Examination of the Alberta Energy and Utilities Board of Security Measures related to the AltaLink 500 KV Hearing conducted by Justice D.W. Perras (Retired) September 7, 2007. http://www.hme.ca/reports/Perras_report_–_Examination_of_the_AEUB_Security_Measures_related_to_the_Alta_Link_500_kV_Hearing.pdf)
Turning to her discussion of five ways the Board may have erred, Woolley acknowledges that if the issues are considered strictly on the basis of the rules of fairness, the Board may have a defendable position on all points. However, if the Board’s decisions are considered in light of the principles underlying the rules, her view is that it clearly erred in all cases. I contend that a more full description of the events strengthens a conclusion that the Board would pass the first test: meeting legal rules around fairness. As well, I believe the full context enhances the likelihood that the Board would also pass the second test, based on principles of fairness. The Board was put in a difficult position by the conflicting legislative requirements surrounding need, but the resolution was reasonable and essentially inevitable. (The conflict set up by having both the EUA and the HEEA address need was later eliminated by removing that requirement from the HEEA—which parallels the Board’s decisions and makes logical sense, as discussed below.)
Woolley has taken an approach that facilitates greater criticism of the Board. Her focus on the final hearing neglects important facts, such as that the new legislation provided a clear mandate to the Board. She notes that the HEEA requires a demonstration of need but does not consider the conflict with the new legislation, which required need to be established at a prior stage. That aspect of the new process had been emphasized by the Board in all of its notices, decisions and other communications. The approach taken was logical because the residents would be unlikely to contribute extensively to the highly technical issue of defining the need for new transmission capacity. Where the residents might contribute, in the matter of the high-level location decision, the Board ensured their views were heard at a review and variance hearing.
This final hearing on site-specific location issues was never completed because the spy charges led to court action and an eventual decision by the Board to terminate the process and vacate all previous related hearing results on the basis of perceived bias. Woolley provides a careful discussion that raises doubts about that decision. A significant cost of the decision to vacate all of the previous decisions turns out to be that a number of issues discussed here were not reviewed in a court of law. Such a review would have been interesting and instructive.
Reassessing Board decisions under tests of legal fairness and legal fairness augmented by underlying principles
In the absence of court direction, I will apply my expanded version of the factual record, along with my knowledge of how the Board has operated in the past, to set out an alternative interpretation of each issue raised by Woolley, while accepting that her principles should be met. I have added the second issue below to address her implication that the Board may also have erred in not reopening the question of need at the final hearing. The points below each issue are my arguments supporting the Board’s approach. Woolley’s discussion on ‘Why the Board’s conduct violated procedural fairness’, is brief (p. 260-263) and provides few specifics regarding how the principles were contravened.
1. Did the Board fail to provide effective notice to West Corridor landowners on the initial EUA proceeding?
This was the first major proceeding under new legislation. That legislation and the Transmission Regulation that came somewhat after the application was filed, but prior to the hearing, required the applicant and the Board to engage in the two-stage process that was used. The Board made clear, through the pre-hearing meeting, its desire to define its role with help from the industry’s producers, consumers, associations and the general public. This desire was expressed through extensive advertising around the province and supplemented by business reporting about the new regime. This, in itself, illustrates the intent to be open, inclusive, and responsive to the views of others.
Woolley allows that the advertising may have been adequate to meet some legal requirement of notice—considering that the alternative of direct notice would have had to be extended to landowners in all of the corridors, involving 435 townships over 25,000 square kilometres. However, she then contends that the fact that none of the landowners in the West Corridor participated in the initial NID hearing shows that notice was inadequate. There are other possibilities: residents may have seen in the notice that the hearing would not address site-specific issues, which would be reviewed in a future proceeding. Or some residents may have recognized that the first hearing would be highly technical and therefore chose not to participate. There might even have been strategic considerations among some residents. If they stayed away from the needs hearing, they could participate in appeals to delay, or overturn, the result if it went against their interests.
The Board did subsequently hold a review and variance hearing , with direct notice, to hear the views of the local citizenry with respect to the broad location aspect of the NID decision. Resident’s views were incorporated into the analysis that led to the choice of corridor and the result did not alter the choice of the West Corridor. Nonetheless, those affected had their views heard and considered.
There seems to be nothing about the principles of accuracy, dignity, or legitimacy that would reverse the view that fairness was achieved, in the circumstances. Accuracy is the most relevant principle to this issue, but the residents were heard on the high-level location decision, and the technical nature of the ‘need’ portion of the hearing means that there was little or no chance that accuracy would be enhanced by inclusion of non-specialized local citizenry.
2. Should the Board have allowed reconsideration of need at the final hearing (something Woolley implied would likely have been helpful)?
The new legislative framework was clearly intended to separate the technical question of whether the electrical system required upgrades (need) from the site-specific locational decision. This made sense because if the regulator decided that need had not been established, then the issues of location would not arise.
The new framework created a not-for-profit, highly technical organization to plan the future of the electrical system (AESO). This would allow determination of need to be separated from the possible incentive of future profits. That seemingly increased the objectivity of the decision making. The Department of Energy even suggested at the NID hearing that the Board should put extra weight on the views of this new organization, because of its independent, expert status. (EUB Decision 2005-031 http://www.auc.ab.ca/applications/decisions/Decisions/2005/2005-031.pdf). While that view was not accepted, it illustrates the government’s emphasis on technical considerations to determine need.
While the HEEA retained a requirement for the applicant to demonstrate that the transmission line was required to meet ‘the present and future public convenience and need’, that was obviously an oversight of the drafters of the new legislation . The AESO was now responsible to establish need in the NID, and that was broadly understood. In the face of this conflicting wording in legislation, the Board had to choose a course. They took the reasonable view that the requirement was met by the extensive process associated with the NID application.
The technical question of whether enhancement of the transmission system is needed is not necessarily related to the location question. If need exists, facilities must be located somewhere. Allowing concerns about location to feed back into the question of need would be illogical and counter to the intent of the new approach.
The pre-hearing meeting had canvassed the question of the hearing structure with the AESO, producers, suppliers, large consumers, the consumers association, and individuals. The residents did have ample opportunity to participate or learn about it afterwards. (Some Intervener leaders argued the whole system was confusing—that is hard to credit. The Board made it clear in notices, meetings, and decision reports, the latter available to everyone online. The process was a bit more complicated than it had been before the legislative changes, but one stage to two stages is not that complicated—particularly if the error in having conflicting legislation is properly acknowledged as such, instead of being used inappropriately in objections. Decisions were all available on line).
The need question is essentially comparable to a broad question of policy whereas location issues, from an administrative viewpoint, could benefit from the knowledge of local residents. I quote Woolley at p. 264 in support of this position.
“The process that will help ensure accuracy for a policy decision is not the same as it is for an adjudicative decision affecting the rights of participants – in the latter instance factual information possessed by the individual affected will be of considerable relevance whereas in the first it will not. What makes a public policy decision legitimate is not the same as what makes a quasi-adjudicative decision legitimate.”
Although she is referring here to why all administrative decisions need not be made through an oral hearing, the parallel to this case seems clear. Here the identification of need for enhanced transmission was delegated to a newly created technical organization, and subjected to approval from a similarly technical regulatory authority accessing the views of multiple technical interveners including major cities, producer and consumer associations, and corporations. The contribution of only some local citizens to this technical issue was surely not likely to override previous expert consideration.
And finally, I would note that there was unanimous agreement at the initial proceeding that there was a need for enhancement of the transmission system. If the Board had opened this final proceeding to a re-consideration of need, that would have been unfair to the participants in the initial proceeding, including both those who had invested significant time and effort on the question of need and were still present, and those who had invested similar effort but were not present at this final hearing because the precise location of the facilities was not an issue for them. Although those who would have their rights intruded upon deserve special consideration, fairness to other participants should not be completely neglected.
3. Did the Board fail to impose proper structure and order on the hearing process from the outset?
This is not an easy question to deal with because the outcome was not good. However, my experience has been that the somewhat informal, accommodative approach has often been successfully adopted, particularly in rural settings. The previous hearing, to address the request for review and variance, had also taken a somewhat less formal approach. In that case, the Board commented as follows:
“Prior to the commencement of the review hearing, the Review Panel became aware that there were individuals who did not strictly meet the requirements for formal participation who wished to provide the Review Panel with their views on the issues raised by the review requests. Since the fundamental purpose of the review hearing was to hear from individuals who wished to speak to the suitability of the West Corridor, the Review Panel decided to relax its formal rules of participation and allow these individuals to make short oral presentations during the course of the review hearing. The Review Panel considers that this flexible approach was beneficial to the hearing process and appreciates the time and effort these individuals put into their submissions. The Review Panel also appreciates the patience and cooperation of the full participants who agreed with the Review Panel that it was appropriate to exercise exceptional flexibility in its procedure so as to hear from the informal participants.
Some of the submissions made by the informal participants related to matters outside the scope of the hearing. However, many of the submissions helped the Review Panel appreciate the range and depth of the concerns experienced by residents within the West Corridor. The matters raised by the informal participants were very similar to those raised by those formal participants urging the Board to vary or rescind Decision 2005-031 and included concerns regarding agricultural, residential, and environmental impacts and health and safety”.
The result of accommodation at the review hearing was broadly positive, the people involved had their say, and the process proceeded smoothly. But in this final hearing the result was obviously not good. The hearing essentially went out of control and had to be adjourned. Yet, it may be that the primary reason for that was that there was a planned disruption of the hearing—something the Board had rarely, if ever, experienced. Judge Perras noted that these interveners came with a plan to disrupt the hearing. In his words “… there appeared to be a concerted effort to derail the hearing by organized disruptive and disrespectful tactics….” . This was made clear by the participation of the “Singing Grannies”, presumably an offshoot of the activist group Raging Grannies—who normally target political issues, not administrative ones.
My perception is also that the legal community has sometimes made implicit assumptions comparing the Board’s processes to that of a court. However, the Board has never had the equivalent of the protections available to courts—security procedures, technology, personnel, and architectural features. Because the Board travels to rural communities for most hearings, and the issues rarely embody extreme controversy, security features have never been of much significance, although if the kind of disruptive activity witnessed at this hearing becomes common, that will have to change. One participant opined that in over 30 years of work with the Board, he had never before seen the kind of behaviour observed at this hearing.
The Board panel invoked its normal process for this hearing, a process that has worked well because it encouraged participation, and I would certainly not have recommended a precipitate change to that approach because of this one incident. Nonetheless, the panelists were surprised by the activist approach, and in the end, the approach was very costly. And even accepting that some tightening of procedure may have been beneficial, I cannot see a reasonable argument supporting the contention that accuracy, dignity, or legitimacy principles would alter a legal conclusion that the hearing procedures were fair. (Of the several intervener groups participating, one was particularly aggressive and it is doubtful that any procedure would have persuaded its leaders to acknowledge that the process was legitimate, unless they got the decision they wanted.)
4. Did the decision to shift to a written hearing, and to segregate landowners in response to the Board’s security concerns, contravene the underlying principles?
5. Was the provision of information related to the security threats sufficient to explain that decision in the circumstances?
These two decisions are closely related, and Woolley did not deal with them in detail. Her essential argument is that
“When the Board segregated interveners from the hearing room, and used private investigators to observe and report on their activities, they did not treat them as having the same standing as the corporate applicant, or as individuals worthy of respect, privacy and dignity. Instead they treated them as lessor participants who could not be trusted, whose views should only be heard in a limited way and whose interests were secondary (p. 262).”
This leads to her blanket conclusion that “Overall, the Board in its procedural decisions showed an insufficient appreciation for what procedural fairness is about” (p. 263). I don’t think this assertion is supported by either facts or argument. Woolley loses logical rigour when, in her discussion, she connects the decision to shift to a written hearing and segregate landowners to the use of covert investigators—such a connection seems to facilitate critical conclusions. If instead we look specifically at the question of segregation and the complaint that it offends the dignity principle, in part because the applicant was not treated similarly, we can assess it more effectively.
The first concern with Woolley’s critique is a certain internal inconsistency. She describes at some length her view of the chaos that resulted from the board’s “failure” to impose proper structure on the hearing, and then when the Board takes steps to ensure a structure that will enable the safe and efficient completion of the hearing, she gives no credit. Unfortunately, the few activists were not easily identifiable, nor could they likely have been banished alone even if they were. This caused the segregation to be imposed on all, but the steps taken to enable everyone to see and hear the proceeding on closed circuit television seem clearly adequate to ensure a fair process. Woolley noted that the applicant was not subjected to the same segregation. This neglects the fact that the applicant could be clearly identified as not causing any disruptions. More importantly, the interveners were allowed to be present during their own cross-examination. The applicant obviously had to be available for cross examination from all of the interveners, thereby making it a reasonable exception to the segregation edict. This would likely have been apparent to the participants so would not contribute adversely to feelings of dignity or legitimacy.
As to the “failure to explain the nature of the threat…” through provision of details, Woolley argues that “an unspecified assertion that there were incidents gives no one comfort in the veracity of that claim.” And then goes on to say that would preclude acceptance of the process as legitimate. I find this discussion a bit of a stretch, and not persuasive considering her previous description of the chaos. From a practical viewpoint, the decision was made perhaps mainly for security reasons, but also in part to prevent the nonthreatening but disruptive behaviour, which the panel may have viewed as having a tactical motivation. The panel likely considered that, in the middle of the hearing, provision of specific details that would identify individual conduct might have simply generated hostile, defensive reactions. The explanation from Board counsel in its letter to parties dated 18 April appears sufficient and concise to avoid adverse reactions. The letter, as quoted by Woolley, refers to ‘three separate incidents in which Board staff and other hearing participants were either threatened with violence or physically confronted and continues, stating the necessity of ‘a hearing process that guarantees the safe and fair participation of all involved’. The term “fair” suggests the rationale included avoiding disruptions which, after all, participants had certainly observed. The decision, though not popular, had to be understandable by people who were actually in the room. It seems arguable that the Board’s action had no impact related to the accuracy principle and negligible impact related to the dignity and legitimacy principles. (See the Ancillary Concerns section below discussing other security indicators).
6. Did the retention and use of covert private investigators to observe the interveners contravene principles of fairness and is the Board’s own finding that this action implied bias more supportable when assessed with the principles in mind?
This is, of course, the primary issue. In the absence of the revelation of covert investigators listening to the conference call, the entire controversy would not have come up. I deal with this extensively below, because the circumstances around this decision are particularly critical to fair assessment. For the other decisions, Woolley allows there may be a limited claim that the Board transgressed fairness rules, but concludes that, ‘When assessed against those rules, with no other consideration, it appears in fact that there was nothing much wrong with what the board did’ (p.255). However that changes when the principles are applied. For this final decision, her take is slightly different. She does set out a persuasive case that the use of covert investigators may not indicate bias, even though the Board later said it did, but she does not specifically address the fairness implications of covert investigators directly. (Her discussion of bias provided comfort to the present author, who had not bought in to the Board’s decision to declare bias and vacate all previous work on this matter, but found it difficult to get past that decision in assessing the overall story.)
It is arguable that the use of covert investigators was neither wrong, in some fundamental sense, nor did it necessarily transgress against the principles of fair procedure, since it was intended to ensure security for all. However, there might still be a question as to whether it was necessary, or wise, in the circumstances. Woolley does not address these specifics but speaks in generalities, leading to a conclusion somewhat unconnected to any previous discussion.
‘The question is not whether the Board’s use of covert investigators created a reasonable apprehension of bias (although it may have done), but instead whether the Board’s use of those investigators was procedurally unfair. It was.’ (p. 263).
I sought the rationale underlying that conclusion without success. Her assertion seems to be supported only by some combination of covert investigators, segregation of interveners, and perhaps failure to explain. In other words, the problems of the hearing, and the complaints of the interveners, combine in some general way to substantiate a conclusion of procedural unfairness related to the investigators. Since I disagree, it becomes necessary to see whether some rationale exists on either side of the issue. I begin by noting that there was no criticism registered by anyone about the use of security personnel. Presumably, if they had been openly deployed among the participants, they would not have attracted direct criticism. The criticism stems from the fact that they were incognito observers to what was happening in the segregated area, and, of course, monitored the conference call. Perhaps the most useful way to assess this is through the lens of the Perras report.
Justice Perras, perhaps rightly, questioned the decision to make the surveillance covert. I say perhaps because the security decisions were being made in the context of threats to people and property. It was a difficult situation. He said, ‘In my view it would have been more palatable to identify security personnel openly and to so identify them as security’
Because the writer has been involved in difficult hearing situations, I have considered how I might have handled this situation, in the face of observed physical assault and orchestrated disruption and then being informed that some staff members were in fear for their safety, I would like to think I would have argued against the covert approach. However, there was a reasonably strong argument in its favour; namely, that if security was completely open, any dangerously disruptive activity could easily have been planned elsewhere. For those of us who have the good fortune to consider these issues from the comfort and safety of our desk and chair, specific context becomes even more important. As described to me by a participant, the hearings were at rural community halls, where many of the pick-up trucks parked outside displayed mounted high-powered rifles. The previous physical interference had involved blocking lawyers from the podium, pushing and shoving, and assault. And as noted in Ancillary concerns, a landowner interviewed by the Edmonton Journal had flatly stated, ‘I think there could be violence’.The threat level had been assessed at a (high) level four, out of a possible five, and there may have been added friction caused by the decision to segregate interveners.
The decision to listen to the intervener’s conference call was faced by a security officer. His job and his responsibility was to ensure the safety of everyone present, including interveners and, in particular, to prevent or contain violence. If he had decided not to access information from the conference call, and violence later ensued, stemming from that call and causing injury or worse, a case would certainly have been made that he hadn’t done his job. That was his dilemma, and he made a limited decision to listen ‘but not to tape or record the call’. Justice Perras focussed his most critical comments on that act. Although I differ on some interpretations, his overall conclusion was neither unreasonable nor particularly damning:
“In summary, the security arrangements for the most part were appropriate and prudent given the risk, except for the approval of connecting to a conference call organized by land owners and organizers, and while little was gleaned from this process the idea of an approved E.U.B. security personnel listening in to land owners phone conferences is repulsive and more so because it is not needed to carry out the security mandate of the security unit of the EUB. In terms of the security mandate being abused or exceeded it is my view that the security arrangements, given all the circumstances and available options, were prudent and not abused save and except the May 28, 2007 okay to the conference call. Lastly, I can find no indication that any inappropriate communication directly or indirectly was communicated directly or indirectly to the Board panel hearing the 500 KV hearings by E.U.B. security staff or private security personnel”.
I do take some issue with part of his statement ‘the idea of an approved E.U.B. security personnel listening in to land owners phone conferences is repulsive and more so because it is not needed to carry out the security mandate of the security unit of the EUB.’ Presumably the security officer would not agree with Justice Perras’ contention that ‘it was not needed to carry out the mandate of the security unit’. Had I been there, like the panel members, I may have had no opportunity to argue against listening in. But if there was opportunity, whether I argued against that decision or not would surely have depended on a judgement about the actual risks involved. The security officer ultimately deemed the risk to people and property outweighed any risk of listening in–since he knew the information to be gathered was only for the purpose of security. The judgement that this covert intelligence was not needed may have merit, but it is a judgement made after the fact that was not nearly so obvious at the time the decision was taken. The choice may have been improper, by some standards, but it was provoked by orchestrated bad behaviour and at the very least motivated by safety considerations that were persuasive at the time. This may not be compelling to some, but those who were responsible for the safety of their friends and colleagues, and all other participants, were clearly faced with a difficult decision.
Although the presiding panel was aware of the covert security, and getting regular reports, the Board had left such decisions to the professional security personnel. Perhaps a lesson should be taken that Tribunal panels should never abdicate such decisions to others. Since they will apparently be held responsible, they should maintain control at some level over all procedures relating to proceedings .
In any case, for purposes of this discussion, the specific question is whether or not the deployment of covert security personnel violated procedural fairness, first in a basic sense based on the law and precedent, and second, when tested against the principles underlying procedural fairness. Neither the formal reviewers nor Woolley herself demonstrated there was procedural unfairness in the first sense . Considering the second sense under the three principles discussed here, the accuracy principle would not change that conclusion. However, the dignity and legitimacy principles complicate the debate. It might be that participants would not react adversely to covert surveillance, if they ultimately understood that surveillance was intended solely to enhance the security of themselves and others. Holiday check stops by police are accepted as legitimate on similar grounds. But if participants perceived some other reason for the surveillance, dignity would be upset and legitimacy called into question. Although the leaders of the interveners claimed the Board was spying and sought leave to appeal the matter in the courts, there is little to support that view. The panel had no motive, other than security, to engage in any surveillance, covert or otherwise. They could have asked for any information they wanted relevant to the application, and any position parties wanted to put forward would have to be done in the open forum because the Board could only use information on the public record in making its decisions. There was no reason why the panel would want to know what participants were discussing—other than to ensure security. That interpretation was clear in Justice Perras’ review but not in any of the media reports, and was not explicitly acknowledged by Woolley.
The conference call incident is easier to deem wrong than it is to explain why it was wrong. People naturally dislike incognito observation of themselves. But did the EUB officer have some justification in approving security surveillance of the conference call?–perhaps. Was Justice Perras’ use of ‘repugnant’ regarding the conference call intrusion fully warranted?–perhaps not. Does that mean the telephone incident was overemphasized as a basis for claiming procedural unfairness?–quite possibly. While I am not persuaded listening to the call was unwarranted, neither am I sure I would have supported the decision to listen in at the time. This is not black versus white—there are many shades of grey. In the final analysis, the most appropriate way to view it may be that the Board, through its security officer, might have committed a misdemeanour, but was subsequently, carelessly, convicted of a capital crime. However, I remain of the view that the facts at the time justified the decision.
My general view of Woolley’s conclusions is that they erred by being too selective about what happened. I prefer an interpretation based on the entire process surrounding this difficult hearing. That interpretation incorporates all the meetings and hearings, the notices, and especially the decision reports, which I believe incorporate a high-level of respect shown toward interveners, and that leads me to give the panel at this location hearing the benefit of the doubt on this final, most important point. I do not think the security decisions imply disrespect or transgress on dignity in the sense Woolley uses the term. They appear to be driven by concerns about security. Nor do I think these decisions would have affected accuracy in the final proceeding. Legitimacy stems from the view of participants about the process, so there is more potential for diverse conclusions. No doubt some interveners would vote with Woolley, whereas others, who had participated in earlier proceedings, would view some interveners as excessively self-serving, and would support the panel. So on this final point, I choose to avoid certainty. However, I am comfortable arguing that Woolley’s certain-sounding conclusion, that the process was procedurally unfair, is not established by her analysis.
Where, then, did that analysis go off course? I have argued that the answer partly relates to the narrow focus that neglected some related proceedings. That prevents consideration of the problem the Board faced because of conflicting legislation, and neglects the fact that the primary conflict on high-level location was largely and fairly resolved by the review hearing . Another possible factor is more subtle. When Woolley concluded that on strict legal grounds the Board did nothing much wrong, that result contravened extensive media conclusions, and possibly her own intuitive preconceptions about the matter. Then, when she contemplated the principles for her second test, simply setting out under each decision a discussion of those principles seemed enough of an indictment. There was no connection to how the Board specifically contravened them. This illogical trap was not easy to recognize, or perhaps, to avoid. It took a skeptical reviewer (with a different preconception), who was looking for specific arguments about how the Board’s actions failed the second test, to realize that no such arguments were provided.
This suggests the application of principles may not be a simple matter. The first hurdle is to ensure that whoever is judging a decision has a complete picture of what happened. And even with that, there will always be a subjective component to interpreting the decisions of a tribunal. Those with direct experience will recognize that many decisions are hashed over extensively among tribunal members, to reconcile diverse views, before some middle course of action is accepted. That is why tribunals often have three members. For those not involved in such discussions blithely to assume the deciders did not appreciate what fairness is about is somewhat arrogant, not to mention unfair. So if a process meets a legal test, condemnation of that process on grounds of someone else’s interpretation of underlying principles requires great care. It may not always be possible.
Ancillary Concerns
Earlier I raised the issue as to why our two analyses differ so markedly in their conclusions. I trust my theme about the importance of the broader context has been illustrated, as well as my concerns relating to the lack of specifics in reviewing the Board’s decisions. There is also an issue related to the pervasive influence of the media in this matter and how that may have played into preconceptions. The media reaction to these events was highly questionable. I sought out as many reports as I could find in the media coverage in Alberta and elsewhere. They all focussed their main attention on the issue of the Board “spying” on participants in the hearing. Provocative editorials seemed to neglect an important source of information from the formal reviews that became available. Some editorials also dismissed the initial assessment from the Minister of Energy that the Board had acted responsibly, and called for the Premier to “show strong leadership,” presumably through some punitive action against the Board. These questionable reports were followed by numerous submissions from high-profile commentators who appeared to cite the formal reviews selectively to justify stronger criticism. Others who had apparently read the Perras report chose to ignore the balance in that report, usually focussing on his unfortunate use of the word ‘repulsive’ ” That comment left the door open for all manner of reviewers to quote the word “repulsive”—which was peripheral to the substantive analysis and conclusions of the report–and ignore the essence of the report. Unfortunately Woolley also succumbed to the temptation to quote the term repulsive, which fuels my concern that she had been influenced by the excessively negative coverage of the story, and that somehow may have influenced her own review. (I was told by a senior observer of these events that Justice Perras privately expressed regret about his use of this term. In the hands of more objective commentators, his balanced report would not have been dominated by that term.)
A curious omission in the media and subsequent commentary was any discussion of the behaviour of the public participants in the proceeding. The fact that there was a strategy to disrupt the hearing, as noted by Justice Perras, and evidenced by the prepared lyrics of the so-called ‘Singing Grannies’ who interrupted the proceeding in a quite remarkable display of disruptive behaviour, seems to have gained little notice. Does such behaviour really deserve careful assessment of fair procedure beyond the strictly legal? One editorial trumpeted that these people had every right to participate in the hearing, something the Board had been ensuring and facilitating for the entire 75 years of its existence . What the Board had no experience with was an unruly mob committing assault and threatening violence in a quasi-judicial public forum . This aspect of the event might have been fertile and interesting ground for responsible investigative journalism. Alas, no, the large bull’s eye of a government agency was much easier to target. The role of the media in this matter warrants further consideration within that industry. (I acknowledge that these comments may apply to a small subset of the interveners. Many had legitimate concerns, some had concerns based on misinformation about EMF issues, or exaggerated claims from some leaders that the project would result in hundreds of people dying every year. But these are the kinds of concerns that can and have been addressed in hearings. In any case, many otherwise innocent participants did become part of the mob mentality that eventually prevailed.)
While the two formal reports criticized the decision to listen in on the conference call, both acknowledged the questionable behaviour of some members of the public and accepted that the Board was rightly concerned about the safety of its staff and other participants as well as the protection of public property. Although they both disparaged the covert approach to security, Judge Perras concluded that the claim the Board was spying for some purpose other than safety had no substance. The Privacy Commissioner’s report was somewhat puzzling. (Report on Investigation Regarding Collection, Use and Disclosure of Personal Information And Protection of Personal Information, September 10, 2007, Alberta Information and Privacy Commissioner, Investigation Report F2007-IR-005.) His office investigated because of press coverage in the Edmonton Journal. Their report fairly described the events, and recognized the seriousness of the situation. It concluded that the Board had contravened the Act through the collection of names, email addresses, and telephone numbers and because it did not ensure the hired security people observed the Act. The information collected was described as limited and primarily came from the conference call list and handouts that were collected by one security contractor and provided to the Security officer (who was an appointed Peace Officer ). It might not be fair to describe the transgressions as trivial, but they were relatively minor, stemming from handouts and information voluntarily put in the public realm. This information was provided by one of the contracted security people to the EUB security officer, and it apparently went no further.
One troubling aspect of the report relates to the rejection of the submissions from the Board’s lawyers that, as a designated Peace Officer, the security officer was authorized to collect some personal information if there was a security rationale. To dismiss this point, the report’s author stated that she did not think the covert security was necessary, given the other steps that had been put in place. Although she does not cite the Perras report, which also offered this opinion, it had been released three days earlier. As discussed above, these opinions, coming after the events, can legitimately be questioned. However, while Justice Perras’ opinion on that matter had little consequence, the judgement here precluded a possible finding that the relatively minor transgression was, in fact, justified. The privacy report had earlier cited a story in the June 19th, Edmonton Journal about a landowner interviewed at the time who noted, ‘the probability of more volatile actions both in and outside the EUB chambers’. When the Journal contacted him to ask what he meant, he replied, ‘I think there could be violence’. I find it hard to agree that a security officer in possession of such information would be out of line in taking any legal actions deemed necessary to ensure safe conditions. If he hadn’t, and violence had occurred, that quote would have been damning. Nonetheless, both formal reports contained opinions that overrode the professional judgement of an experienced Peace Officer, after the fact, without acknowledging that he faced a different and more difficult assessment, one involving risk of future violence. The Privacy Commissioner himself, who was not the author of the report, later made a comment in the press to the effect that this incident could have a chilling effect “on groups that have legitimate concerns or complaints in the future” . That was an unwarranted judgement given his role and the information at hand. Moreover, it strongly suggests he was reacting to press reports, rather than the report from his own office. That, and similar comments from normally reputable sources that bought into the extensive misrepresentation in the press, contributed to an overall impression about the Board that I have argued, and believe, is largely incorrect. It is understandable that Woolley may have been influenced by this barrage of adverse commentary.
Ultimately, the media reports seemed to have a more pervasive impact than the more objective formal reviews. Opposition parties that saw an opportunity to embarrass the government added their voices to the general condemnation. The government initially supported the Board, but eventually yielded to the negative press, and joined in the condemnation.
The immediate consequences of this event: the questionable vacating of earlier regulatory proceedings and the associated delay in the strengthening of the transmission system, were significant. Legislation was subsequently amended to eliminate the conflict in assessing need and the government has also created a new category of project—critical infrastructure, which is not subject to careful, public assessment of need. That will prevent the kind of delay observed here—but with increased risk of massive errors in public investment. The delay in this case was very costly. Had this transmission line been under construction during the recession of 2008-2011, its costs would undoubtedly have been much less, and the contribution to the economy significant. From my viewpoint, the incident also provided an unfortunate demonstration that organized disruption can overcome civil procedures to the benefit of the disruptors (albeit temporarily). The new line will go ahead as critical infrastructure; but it may be that the routing will have moved parts of it onto neighbouring lands.
And finally, the impact on those members of the panel and some members of the staff, who not only lost their jobs but also had unanswerable questions attached to their reputations, was severe, unjust, lasting, and totally unwarranted. Close to a decade after the event, they have not put it behind them—if they ever can. This panel was striving to provide a fair process in the face of a legislative conflict, a NIMBY mentality, and an effectively politicized intervention; to ensure everyone had his or her say and, ultimately, to make a decision that balanced the conflicting interests as best they could within the limits of the legislation under which they worked. They were badly treated by all concerned.
Alice Woolley took a major step toward correcting the record, with her assessment of the “strictly legal” considerations in this matter. While I have presented a different view of her subsequent “principles” analysis, thereby coming to different conclusions, overall she provided one of the few balanced assessments of what happened and afforded an opportunity for the kind of discussion that may allow future tribunals and officers of the court better to understand such incidents, and ensure fairness to all involved. When I first joined the Board, I attended the legal group’s course on natural justice and related issues. Woolley’s paper and some of her sources would enhance that course. Her concerns did not, in my opinion, apply directly to this case—but they warrant careful consideration in situations that require procedural fairness.
Appendix
Selected Events from the Transmission History since 2004
The information provided here is taken largely from the decision reports associated with the hearings dealt with in this review. These were done under the EUB but are now found at the Alberta Utility Commission website, as responsibility was transferred to that group after these events occurred. These decision reports, on the pre-hearing meeting, the NID hearing, and the review and variance hearing, provide a valuable description of the hearings, the decisions, and the legislative environment under which the hearings took place. They were made available online at:
EUB Decision 2004-048 Pre-Hearing Meeting. http://www.auc.ab.ca/applications/decisions/Decisions/2004/2004-048.pdf
EUB Decision 2005-031 AESO NID 500 kV Electric Transmission Facilities. http://www.auc.ab.ca/applications/decisions/Decisions/2005/2005-031.pdf
EUB Decision 2006 114 “Request for Review and Variance of Decision 2005 031. http://www.auc.ab.ca/applications/decisions/Decisions/2006/2006-114.pdf
Acronyms
NID Needs Identification Document
EUA Electrical Utility Act
EUB Energy and Utilities Board
ISO Independent System Operator
AESO Alberta Electric System Operator
TFO Transmission Facility Owner
HEEA Hydro and Electric Energy Act
Timeline
On May 19, 2004, AESO filed an NID application under the new rules. The application sought expansion of the North-South transmission system, from Edmonton to Calgary, and provided 13 high-level Concepts, located generally in three corridors, to achieve the enhancement. AESO identified Concept V as its preferred option, requiring upgrades within the West Corridor.
On May 20, 2004, the Board issued a Notice of Prehearing Meeting to seek the views of the industry and the public on its role. It included a map showing the West Corridor where Concept V would be located and sought views on the Board’s role and options under the new legislation. Notice was sent by email to parties expressing an interest with the AESO and was published in major papers in Calgary, Edmonton, and Red Deer on May 25, 26, and 27, 2004, and in 24 rural weekly newspapers on May 26 and 27, 2004.
On June 15, 2004, the prehearing meeting was held in Calgary.
On June 23, 2004, Decision 2004-048 set out the technical issues for the hearing, reviewed legislative requirements and emphasized that it would not deal with site-specific issues. Those would be considered in a future proceeding.
On June 23, 2004, the Board also issued a Notice of Hearing for the NID hearing, noting the scope of the hearing would include consideration of various system development concepts within the three corridors. The notice also stated the hearing “will not address site-specific impacts that any proposed development may have on land use or individuals except at a very high-level.” A map showing all three corridors was attached to the notice, which was emailed directly to the NID application mailing list and published in major Calgary and Edmonton daily newspapers, as well as the Red Deer Advocate, on June 28, 29, and 30, 2004 and in 31 weekly rural newspapers between late June and mid-July.
On December 9, 2004, the NID hearing began and final argument and reply occurred on January 17 and 18, 2005. All participants agreed on the need to upgrade the N-S transmission system, but there were diverse views on how to do it.
On April 14, 2005 Decision 2005-031 was issued approving the need and accepting the applicant’s proposed Concept V, in the West Corridor. The AESO then assigned the project to a TFO, AltaLink, who set out to plan a specific configuration and location for the line and began a process of communication with residents in the West Corridor, many of whom would be affected by the proposal.
Some residents, one individual and five groups, subsequently sought a hearing to review and vary the previous result on grounds that the notice of the previous proceedings had been insufficient and therefore they had no opportunity to be heard on issues that could affect them. The Board granted this request, in part, saying that although the Notice had been adequate, given the nature of NID hearings (under the new legislation), it would be in the public interest to allow the residents to address the high-level location proposal. The question of need, however, would not be addressed at the review hearing. Notice was direct and extensively advertised. In addition, the Board held three well-attended information sessions in Red Deer, Bluffton, and Rimbey to assist participants in understanding and preparing for the hearing.
The hearing was held in mid-2006, and the decision denied the request to vary Decision 2005-031. The proceeding is thoroughly described in an 84-page report, EUB Decision 2006-114. The decision describes the issues brought forward and how they were integrated into the analysis of the high-level location contained in Decision 2005-031. The decision also describes an unusual number of preliminary and interlocutory motions that essentially sought either a deferral of the hearing, or the rescission of Decision 2005-031. These motions were all denied, with reasons given in Appendix E of the report.
This decision enabled AltaLink to continue with its application for a specific proposal, and that proposal was the subject of the hearing in 2007 that was eventually terminated before it was completed. Later all previous related decisions were vacated as well. These events became the basis of Woolley’s critique of the Board’s regulatory practices.
