Bulletin – Rules of Practice – Enforcement
The AUC announced several proposed changes to AUC Rule 001: Rules of Practice (“Rule 1”), and a further outline related to enforcement proceedings commenced by the Market Surveillance Administrator (“MSA”).
MSA Initiated Proceedings
The AUC noted that the primary goals of enforcement are to promote compliance with Alberta’s utility laws, and to prevent harm to persons, property and to the integrity of the regulatory process. Such compliance is generally addressed through a mixture of reporting, complaint investigations, inspections and audits.
With respect to investigations, the AUC noted that AUC staff will review circumstances and evaluate the identified conduct, including examining available sources of information and may contact the regulated entity in question for an explanation of the alleged conduct. The AUC noted that staff intends to provide the regulated entity in question an opportunity to respond to any allegations prior to the conclusion of the AUC’s investigation.
With respect to enforcement proceedings, the AUC noted that it will have regard for the following principles in deciding whether to commence an enforcement action against a regulated utility:
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If, based on the information obtained through an investigation, the alleged contravention appears reasonably likely to be proven on a balance of probabilities; and
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If the enforcement action is in the public interest.
If an enforcement proceeding is initiated, the AUC stated that notice will be given to the alleged contravener with the particulars of the alleged contravention and the nature of the sanctions being sought. The AUC stated that staff assigned to the enforcement proceeding will have no contact with the AUC division conducting the proceeding, nor the staff assisting the AUC division that is conducting the proceeding, except through the public record.
Rule 1
The AUC also announced a number of proposed changes to Rule 1 as a result of several MSA enforcement matters and investigations. The AUC noted that Rule 1 was originally drafted broadly to apply to a large variety of proceedings. As a result, the AUC proposed a number of amendments to recognize the unique features of enforcement proceedings.
First, the AUC proposed to expand the definition of “party” to include a person named by the MSA or the AUC in a notice issued under sections 51 and 52 of the Alberta Utilities Commission Act (“AUCA”).
Second, the AUC proposed new notice requirements setting out what information must be included in a notice from the AUC to initiate an enforcement proceeding, including the following information:
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The names of the alleged contraveners;
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Reasonable particulars of the alleged contravention of failure to comply to be considered by the AUC;
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A statement of the order or other relief requested; and
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Any other information ordered by the AUC.
The AUC noted that such information would effectively mirror the information requirements in an MSA-issued notice under section 51 of the AUCA.
Third, the AUC proposed to amend the information request (“IR”) process in enforcement proceedings such that an IR process will only be available in the discretion of the AUC. The AUC stated that the proposed amendment shifts the onus on the person seeking an IR process to establish that the IR process is warranted.
The AUC noted that it did not intend to change Rule 1 to prescribe a level of disclosure required in enforcement proceedings, preferring to consider such determinations on a case-by-case basis.
The AUC stated that it did not intend to amend Rule 1 to address standing in enforcement proceedings. The AUC reiterated its stance set out in Bulletin 2010-17 that standing and participation in enforcement proceedings will remain limited to the MSA and the alleged contravener.
Next Steps
The AUC stated that it anticipated holding a stakeholder consultation in the Spring of 2016 regarding the proposed changes.
