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EPCOR Distribution & Transmission Inc. Decision on Preliminary Question Application for Review of Decision 27653-D01-2022 2023, AUC Decision 27922-D01-2023

Link to Decision Summarized

Review and Variance – Rates

Application

EPCOR Distribution and Transmission Inc. (“EDTI”) applied to the AUC for review and variance of Decision 27653-D01-2022 regarding EDTI’s 2023 Cost-of-Service Compliance Filing and 2023 Distribution Rates (the “Decision”).

Decision

The AUC denied the application.

Applicable Legislation

Alberta Utilities Commission Act, SA 2007, c A-37.2.

AUC Rule 016: Review of Commission Decisions.

Pertinent Issues

EDTI relied on s 5(1)(a) of Rule 016: Review of Commission Decisions (“Rule 016”), submitting that the AUC had made an error of fact or mixed fact and law. In the alternative, EDTI submitted that the AUC should review the Decision on its motion, as permitted under s 2(1) of Rule 016.

In the Decision, the AUC directed EDTI to include the years impacted by the COVID-19 pandemic in its 2023 residential consumption forecast. Specifically, EDTI was directed to include the actual residential consumption during the COVID-19 pandemic years of 2020 and 2021 in the calculation of its 2023 residential consumption forecast.

EDTI submitted that, on a balance of probabilities, this constitutes an error of fact. EDTI argued that there was a “clear intention” in the AUC’s reasoning that EDTI’s 2023 residential consumption forecast should be based on actual residential energy consumption for the years 2010-2019. EDTI submitted that the direction should have been for EDTI to exclude the years impacted by the COVID-19 pandemic from its 2023 residential consumption forecast.

EDTI submitted that the alleged error is material. EDTI advised that including the 2020 and 2021 pandemic years in the 2023 residential consumption forecast results in a revenue shortfall of $952,348 in 2023, which will be carried forward through the next five-year performance-based ratemaking term commencing on January 1, 2024.

The AUC was not persuaded that an error of fact exists on a balance of probabilities. The AUC noted that the hearing panel had actual data from 2010 to August 2022 on the record of Proceeding 27653, making the finding in question an outcome that was available based on the facts in that proceeding. In addition, the AUC considered that the relevant finding in the Decision was drafted precisely and deliberately. For example, the Decision repeats its finding that the forecast should include the COVID-19 pandemic years of 2020 and 2021, which is not, as suggested by EDTI, in contradiction with other sections of the Decision.

The AUC found no express statement in the Decision that it is not reasonable for EDTI to include, or that EDTI must not include, the 2020 and 2021 pandemic years in its 2023 residential consumption forecast. The AUC denied EDTI’s request for a review under s 5(1)(a) of Rule 016.

Given the importance of the principle of finality in administrative decision-making, the AUC should only exercise its discretion under s 2 of Rule 016 in exceptional or extraordinary circumstances. The AUC found that the alleged error of fact, which was not proven on a balance of probabilities, does not constitute exceptional or extraordinary circumstances necessary to justify the exercise of its discretion under s 2 of Rule 016.

EDTI did not meet the requirements for a review of Decision 27653-D01-2022, and the application for review was dismissed.

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