On November 16, 2023, the BCUC wrote to its stakeholders seeking their feedback on a series of proposed efficiencies. Feedback was due November 30, 2023. Several of these proposed efficiencies may affect the ability of public interest groups and other interveners to participate in future BCUC proceedings.
The BCUC’s proposed efficiencies include the following:
- The BCUC proposes to “tailor the type and extent of participation in its processes to better suit the nature of a given application”, and that in future, there should be “no presumption that intervention will be permitted in every proceeding.”
- In future, the BCUC may limit the number of information requests parties may ask, and may either “limit the number of allowable pages” in final arguments, or not permit final arguments at all “where appropriate.”
Interveners in BCUC proceedings represent a diverse range of interests, including low-income individuals and seniors, commercial and industrial customers, and the adoption of clean energy. These interveners provide views that might not otherwise be represented in a BCUC proceeding. Interveners can be an efficient method for the BCUC to hear these views as they are typically experienced in BCUC procedure, and can avoid the BCUC having to deal with dozens or hundreds of individual or corporate parties all with similar interests.
The BCUC has the power to control its own processes, pursuant to section 11 of the Administrative Tribunals Act, and even before the BCUC’s latest efficiency drive there was no presumption that interveners will be invited to participate in every BCUC proceeding. Some decisions by the BCUC are approved with no hearing, such as energy supply contracts, which the BCUC may approve if it determines they are in the public interest. In other cases where the BCUC does hold a hearing, such as when it reviews a municipal operating agreement, it may only seek letters of comment from interested parties rather than inviting interveners to participate.
However, the BCUC is also obliged to act with regard for procedural fairness, which includes ensuring that affected parties have the opportunity to be heard by the BCUC before a decision is made. It is not clear from the BCUC’s proposal what decisions it thinks it might make in future without the participation of interveners. But there is a danger that the BCUC is over-zealous with its drive for efficiency, and stops listening to the voices of public interest groups that have informed its decisions in recent years.
It is certainly true that interveners often ask many questions in proceedings, and that there is sometimes duplication of effort. Looking for efficiencies in this process is probably overdue. However, a good intervener may ask many good questions, and a simple limit on the number of questions risks missing valuable evidence, and possibly even encouraging some interveners to ask only marginally relevant questions to take full advantage of their limit.
The BCUC also proposes to make more use of “cost award caps” to “encourage interveners to coordinate their efforts”. The BCUC already has the ability under its rules of practice and procedure to “require an intervener to coordinate with other interveners who represent substantially similar interest” (Rule 10.03), and has used this in the past. It is not clear how the BCUC would set a cap on an intervener’s cost award before a proceeding starts, or how the (almost inevitable) changes to the process during a proceeding would be handled. Such a cap on funding could be chilling on interveners’ participation, many of whom require BCUC cost awards to participate at all, and who may see this proposal as increasing their risk of not being paid for their work.
The BCUC does need to balance efficiency with fairness in its procedural decisions. However, the BCUC should be careful not to throw the baby out with the bathwater, as the expression goes. It does not serve the public interest if the voices of energy customers are no longer heard.