Review Application – Rule 016
ATCO Gas, ATCO Pipelines and ATCO Electric Ltd. (collectively, the “ATCO Utilities”) applied for a review of Decision 2014-169: 2010 Evergreen Proceeding for Provision of Information Technology and Customer Care and Billing Services Post 2009 (2010 Evergreen Application) (“Decision 2014-169”) pursuant to AUC Rule 016: Review of Commission Decisions (“Rule 016”) (the “Review Application”). Decision 2014-169 assessed, in part, the prudency of Master Services Agreements that governed the provision of Information Technology services by ATCO I-Tek.
The ATCO Utilities submitted that the hearing panel erred in rendering Decision 2014-169 insofar as:
(a) Failing to consider or give any weight to the totality of the evidence, and ignored uncontroverted evidence without providing reasons for doing so; and
(b) Misapprehended the facts, and committed an error of law, jurisdiction, or both by failing to order production of, potentially, a relevant benchmarking study that it knew to exist at the time of the hearing, but was not tendered by the applicants.
The AUC noted that the ATCO Utilities, in the Review Application, were not alleging that they have recently become apprised of facts that were unknown to them at the time of the original proceeding, nor any other material change that could lead the AUC to materially vary or rescind Decision 2014-169.
With respect to the first ground advanced, the AUC rejected the ATCO Utilities’ submission that the hearing panel failed to consider the evidence, noting that the hearing panel did assess the evidence, but decided to assign that evidence no weight, which it held was not an error of law. In arriving at this conclusion, the AUC cited Epcor Generation Inc. v Alberta (Energy and Utilities Board) for the proposition that “[the tribunal] is free to accept or reject evidence presented by the parties and, as an expert tribunal, it is entitled to use its expertise to arrive at different conclusions than the parties”.
With respect to the second ground of review advanced by the ATCO Utilities, the AUC held that the hearing panel did commit an error in stating that no benchmarking study was available. However, the AUC found that the hearing panel’s reasons associated with rejecting the benchmarking study was due to the benchmarking consultants’ confidentiality concerns, which precluded any examination of such data.
Accordingly, the AUC held that although there was an error of fact, the ATCO Utilities failed to demonstrate a reasonable possibility that could lead the AUC to materially vary or rescind Decision 2014-169.
Therefore, the AUC determined that the ATCO Utilities failed to discharge their onus in section 6 of Rule 016. For the reasons noted above, the AUC declined to grant the ATCO Utilities’ review request in respect of Decision 2014-169.
