Secret participants and 'collusion' worries cause halt in N.B. Power hearing

An accusation that two or more customers of N.B. Power's transmission system slipped into a hearing on the utility's transmission rates in a Trojan Horse-style operation has ground proceedings at the New Brunswick Energy and Utilities Board to a sudden halt.

N.B. Power is asking that a consultant being paid to represent the unknown parties be expelled by the EUB and his evidence disallowed.

N.B. Power lawyer John Furey said the utility has believed since late last year that the consultant, William Marshall, had been representing only himself at the hearing but is now wondering if he is part of a larger "collusion" among other participants.  

"It never crossed my mind that Mr. Marshall was here other than as a member of the public who is interested in the proceedings," Furey said during the virtual hearing last week. "That he was actually representing an unnamed third party, I find that — I am shocked by it, frankly.

"It creates the possibility that there are other interveners in this proceeding who have also retained Mr. Marshall, and we now have collusion or corroboration through Mr. Marshall of the position that another intervener is taking to create the impression for the Board that there is consensus. It is absolutely unfair."

The hearing, which was postponed earlier in the spring for unrelated reasons was finally scheduled to conclude last Friday but has now been adjourned until Aug. 10 to hear arguments on how to deal with N.B. Power's concerns about cloaked participants.

Final arguments on transmission rates themselves, which were originally supposed to be in place back on April 1, have been delayed until Sept. 9.

N.B. Power's extensive transmission system serves a variety of businesses and generators that depend upon it to move electricity in and around the Maritime provinces, Maine, Quebec and deeper into New England.  

The operation of the system, including its fees and expenses, is regulated by the New Brunswick  Energy and Utilites Board.

Multiple parties, including Marshall, are participating in the hearing and have been challenging N.B. Power plans to raise fees for its transmission services. One particularly controversial proposal is a plan to more than quadruple what N.B.  Power charges to "balance" the uneven flow of electricity through its system caused by the up and down production of area wind farms.

Marshall is a former senior N.B. Power executive and once oversaw the operation of the transmission system as president of the independent New Brunswick System Operator, which was absorbed by N.B. Power several years ago. He has operated a private consulting business for the last 14 years.

Marshall's consulting company WKM Energy Consultants Inc. registered to participate in the hearing on its own behalf.

But under questioning last week by acting public intervener Rick Williams, Marshall confirmed the company is being paid by "more than one" silent party to represent them.

Under additional questioning by Furey, Marshall acknowledged the parties did not want their participation to be known.

"The clients that I am [representing] really did not want to be identified by themselves that they were here, so I am doing it on their behalf," Marshall said.   

"The concern of my client is that, you know, several of them have relationships with N.B. Power, and they don't want to tarnish those relationships."  

Marshall said it was explicitly in his original application to participate in the matter that his company had an interest in participating because it "works regularly with many parties throughout the region" who are affected by N.B. Power's transmission policies and charges.

He offered to disclose the identities of those who hired him in confidence to the EUB, but Furey took the position the parties who hired Marshall should be the listed participants even if Marshall is the one who presents their arguments.

"It is not in the public interest to permit Interveners to represent the interests of undisclosed or unidentified third-party commercial interests," Furey wrote in a formal notice of motion calling for Marshall to be expelled and evidence he has submitted to be struck.

"The only possible purpose of such a form of intervention is secrecy, which is contrary to the "open court" principle which governs Canadian courts and tribunals," he concluded.

Under questioning, Marshall listed eight clients of his consulting company that would be impacted by a change in transmission charges in New Brunswick and suggested "some" of those eight were the ones he was representing.

Among the eight are Saint John Energy, which takes electricity off N.B. Power's transmission system to supply city customers, and Liberty Utilities, which owns the Tinker hydroelectric dam that links to N.B. Power's transmission system near the Maine and New Brunswick border.  

Marshall did not say if either company is among the ones he is working for, but both are represented separately at the hearing already, and Furey said there is a danger a secret participant enjoyed "double representation" throughout the hearing and potentially benefited from unfair procedural tricks.

"One possible outcome is that one representative of the third-party interest would be in a position to cross-examine (and thus ask leading questions of) an expert retained by the second representative of the third-party interest," wrote Furey in his formal notice of motion. 

"Double representation may also result in the stacking of multiple expert witnesses, creating a false impression for the board that there is consensus that does not truly exist."

On Monday, Saint John Energy would not comment on whether it is one of the parties paying Marshall.

"There is currently a motion in with the New Brunswick Energy and Utilities Board on this issue," company spokesperson Jessica DeLong wrote in an email..  

"We will not be commenting at this time out of respect for the NBEUB's process."

The EUB said if a resolution between N.B. Power and Marshall can be worked out, Aug. 10 may be used to hear final arguments. Otherwise the day will be devoted to hearing the utility's application to have Marshall barred from participating.