The City of Calgary - AUC · 3. The review application was filed on July 24, 2019 pursuant to...

Decision 24760-D01-2019

The City of Calgary Decision on Preliminary Question Application for Review of Decision 20514-D02-2019 and Commission Rulings on Eligibility for Costs Recovery December 10, 2019

Alberta Utilities Commission Decision 24760-D01-2019 The City of Calgary Decision on Preliminary Question Application for Review of Decision 20514-D02-2019 and Commission Rulings on Eligibility for Costs Recovery Proceeding 24760 December 10, 2019 Published by the:

Alberta Utilities Commission Eau Claire Tower 1400, 600 Third Avenue S.W. Calgary, Alberta T2P 0G5 Telephone: 310-4AUC (310-4282) in Alberta 1-833-511-4AUC (1-833-511-4282) outside Alberta Email: [email protected] Website: www.auc.ab.ca

The Commission may, within 30 days of the date of this decision and without notice, correct typographical, spelling and calculation errors and other similar types of errors and post the corrected decision on its website.

Decision 24760-D01-2019 (December 10, 2019) i

Contents

1 Decision .................................................................................................................................. 1

2 Introduction ........................................................................................................................... 1

3 Background ........................................................................................................................... 2

4 The Commission’s review process ....................................................................................... 4

5 Grounds for review and hearing panel findings ................................................................ 6

6 Section 4(d)(ii) grounds – previously unavailable facts ..................................................... 6

7 Section 4(d)(i) grounds – errors of fact, law or jurisdiction ........................................... 12

8 Decision ................................................................................................................................ 16 Appendix 1 – Commission’s Costs Rulings letter on Proceeding 20514 dated August 13, 2015 Appendix 2 – Commission’s Costs Rulings letter on Proceeding 20514 dated November 19, 2015

Decision 24760-D01-2019 (December 10, 2019) 1

Alberta Utilities Commission Calgary, Alberta The City of Calgary Decision on Preliminary Question Application for Review of Decision 20514-D02-2019 Decision 24760-D01-2019 and Commission Rulings on Eligibility for Costs Recovery Proceeding 24760

1 Decision

1. In this decision, the Alberta Utilities Commission considers whether to grant an application (the review application) filed by The City of Calgary requesting a review and variance of Decision 20514-D02-2019: The ATCO Utilities (ATCO Gas and Pipelines Ltd. and ATCO Electric Ltd.) Information Technology Common Matters Proceeding,1 more specifically, the Commission’s rulings in that proceeding dated August 13, 20152 and November 19, 20153 (collectively, the Costs Rulings).4 The Costs Rulings addressed applications from Calgary requesting the Commission to exercise its discretion to grant costs recovery eligibility in Proceeding 20514 (the IT common matters proceeding).

2. The Commission has decided to deny the review application for the reasons provided below.

2 Introduction

3. The review application was filed on July 24, 2019 pursuant to Section 10 of the Alberta Utilities Commission Act and Rule 016: Review of Commission Decisions. The Commission designated the review application as Proceeding 24760.

4. On August 19, 2019, the Commission granted Calgary’s request for confidential treatment of certain information included in the review application that had been granted confidential treatment in the IT common matters proceeding.5

5. On July 25, 2019, the Commission issued a filing announcement of the review application. By letter dated August 6, 2019, the Commission advised parties that pursuant to Rule 016, consideration of the review application would follow the two-step process provided for in the rule and as further described in Section 4 of this decision. In the same letter, the Commission also invited parties to register to participate in the proceeding and established a

1 Decision 20514-D02-2019: The ATCO Utilities (ATCO Gas and Pipelines Ltd. and ATCO Electric Ltd.)

Information Technology Common Matters Proceeding, June 5, 2019. 2 Exhibit 20514-X0056. 3 Exhibit 20514-X0115. 4 The August 13, 2015 and November 19, 2015 Costs Rulings are attached to this decision as Appendix 1 and 2

respectively. 5 Exhibit 24760-X0007.

Decision on Preliminary Question Application for Review of the Commission’s Costs Rulings The City of Calgary


process to file submissions and reply submissions. ATCO Electric Ltd.6 registered to participate in the proceeding.

6. On August 28, 2019 ATCO Electric Transmission and ATCO Pipelines (the ATCO Transmission Utilities)7 filed a submission on the review application,8 to which Calgary replied on September 11, 2019.9 The ATCO Transmission Utilities filed a further reply to Calgary’s submission on September 13, 2019.10 The Commission considers that the record for this proceeding closed on September 13, 2019.

7. In this decision, the Commission panel that authored the Costs Rulings will be referred to as the “hearing panel” and the Commission panel considering the current review application will be referred to as the “review panel.”

8. In reaching its determinations, the review panel has reviewed the pertinent portions of the Costs Rulings and relevant materials comprising the record of this proceeding and of Proceeding 20514. Accordingly, references in this decision to specific parts of a record are intended to assist the reader in understanding the Commission’s reasoning relating to a particular matter and should not be taken as an indication that the Commission did not consider all relevant portions of the several records with respect to the matter.

3 Background

9. The hearing panel issued the Costs Rulings on August 13, 2015 and November 19, 2015, respectively. In the Costs Rulings, the hearing panel denied Calgary’s request for costs recovery eligibility under Rule 022: Rules on Costs in Utility Rate Proceedings.

10. The hearing panel’s findings are at paragraphs 42 to 46 of the August 13, 2015 Costs Ruling:

42. Calgary, as a municipality, is ineligible to claim recovery of costs incurred in connection with its intervention in Commission rate proceedings. This ineligibility can be reversed at the Commission’s discretion. There is no “bright-line” test for when an otherwise ineligible intervener will be permitted cost recovery; requests are considered on a case by case basis.

43. In this case, Calgary claims that [sic] should be granted costs eligibility for a number of reasons, ranging from its historical intervention in Commission proceedings involving the assessment of IT-related evidence to a stated fear that the involved utilities may seek to use Calgary’s ineligibility to claim costs as a means to throttle its intervention. The City of Calgary also asserts that all Albertans will benefit from its intervention.

6 ATCO Electric Ltd. registered to participate in the proceeding; however, the submissions contained in Exhibits

24760-0008 and Exhibit 24760-0010 are made on behalf of the ATCO Utilities, which were defined in Exhibit 24760-0010 as ATCO Electric Transmission and ATCO Pipelines.

7 ATCO Electric Transmission and ATCO Pipelines are defined collectively herein as the ATCO Transmission Utilities to distinguish these entities from the broader group of “ATCO Utilities” that were before the Commission in Proceeding 20514, the IT common matters proceeding.

8 Exhibit 24760-X0008. 9 Exhibit 24760-X0009. 10 Exhibit 20514-X0010.



44. The ineligibility of municipalities to claim cost recovery is a long-standing feature of the Commission’s intervener costs apparatus. The rationale for the exclusion of municipalities and other enumerated entities from the Rule 022 cost recovery mechanism may be understood with reference to Section 3 of the rule. This provision states that the Commission may award costs to an intervener representing persons with a “substantial interest in the subject matter” of a proceeding, but which “does not have the means to raise sufficient financial resources to enable [it] to present its interests adequately.” Section 4 of the same rule lists several classes of interveners that are presumptively ineligible to benefit from the application of Section 3.

45. Calgary has an interest in the outcome of the IT Common Matters Proceeding by virtue of the fact that its citizens are charged Alberta Electric System Operator tolls which are based on costs of all electric transmission utilities, including ATCO Electric-Transmission. However, it also has the means to provide financial support for any intervention it may elect to mount on behalf of its citizens. Calgary’s prior experience in Commission proceedings involving the assessment of IT-related evidence does not change this fact, or otherwise militate in favour of costs of its intervention ultimately being passed on to ratepayers, generally. The Commission considers that the alleged consequence of other Albertan ratepayers receiving a “free-ride” with respect to the anticipated benefits of its intervention is something that the city must consider when making a determination with respect to how much of its resources to commit to this matter.

46. The Commission is, likewise, unmoved by Calgary’s suggestion that the ability of ATCO Pipelines and ATCO Electric-Transmission to recover any awarded costs through hearing cost reserve accounts is supportive of its request; any such costs would, regardless of their accounting treatment by these companies, be passed on to customers through rates. Finally, the Commission is not persuaded by the suggestion that a refusal on its part to permit cost recovery will have the effect of promoting abuses of process by the involved utilities. Calgary’s request for eligibility to claim cost recovery is denied.

11. The hearing panel’s findings in the November 19, 2015 Costs Ruling are at paragraph 11:

The Commission has previously ruled on the issue of Calgary’s cost eligibility in this proceeding. The granting of the applicants’ request to file supplementary evidence does not impact the rationale for its determination in this regard. (footnote omitted)

12. In a letter dated February 20, 2019 in Proceeding ID 24294,11 the Commission declined Calgary’s request in an application filed on January 31, 2019, to issue an order that either directed the ATCO Utilities12 to pay Calgary’s costs of participation in the IT common matters proceeding or declared Calgary eligible for costs recovery for costs incurred in that proceeding. The Commission also stated that Calgary could challenge the Cost Rulings by way of a review and variance application of the final decision in the IT common matters proceeding, which it elected to do by way of the current review application.

11 Proceeding 24294, Application by The City of Calgary for Costs Eligibility. 12 “ATCO Utilities” means collectively: ATCO Electric Transmission and ATCO Electric Distribution, divisions

of ATCO Electric Ltd.; ATCO Gas and ATCO Pipelines, divisions of ATCO Gas and Pipelines Ltd.



4 The Commission’s review process

13. The Commission’s authority to review its own decisions is discretionary and is found in Section 10 of the Alberta Utilities Commission Act. That act authorizes the Commission to make rules governing its review process and the Commission established Rule 016 under that authority. Rule 016 sets out the process for considering an application for review. A person who is directly and adversely affected by a decision may file an application for review within 60 days of the issuance of the decision, pursuant to Section 3(3) of Rule 016. Calgary filed its review application within the required period.

14. The review process has two stages. In the first stage, a review panel must decide whether there are grounds to review the original decision. This is sometimes referred to as the “preliminary question.” If the review panel decides that there are grounds to review the decision, it moves to the second stage of the review process where the Commission holds a hearing or other proceeding to decide whether to confirm, vary, or rescind the original decision.

15. This decision provides the review panel’s findings on the preliminary question.

16. Section 4(d) of Rule 016 requires an applicant to set out in its application the grounds it is relying on which may include the following:

(i) The Commission made an error of fact, law or jurisdiction;

(ii) Previously unavailable facts material to the decision, which existed prior to the issuance of the decision in the original proceeding but were not previously placed in evidence or identified in the proceeding and could not have been discovered at the time by the review applicant by exercising reasonable diligence;

(iii) Changed circumstances material to the decision, which occurred since its issuance.

17. Section 6(3) describes the circumstances in which the Commission may grant a review as follows:

6(3) The Commission may grant an application for review of a decision, in whole or in part, where it determines, for an application for review pursuant to subsections 4(d)(i), (ii) or (iii), that the review applicant has demonstrated:

(a) In the case of an application under subsection 4(d)(i), the existence of an error of fact, law or jurisdiction is either apparent on the face of the decision or otherwise exists on a balance of probabilities that could lead the Commission to materially vary or rescind the decision.

(b) In the case of an application under subsections 4(d)(ii) or 4(d)(iii), respectively, the existence of:

(i) Previously unavailable facts material to the decision, which existed prior to the issuance of the decision in the original proceeding but were not previously placed in evidence or identified in the proceeding and could not have been discovered at the time by the review applicant by exercising reasonable diligence; or



(ii) Changed circumstances material to the decision, which occurred since its issuance

that could lead the Commission to materially vary or rescind the decision,

(…)

18. In its review application, Calgary is relying on sections 4(d)(i), 4(d)(ii), 6(3)(a) and 6(3)(b).

19. In Decision 2012-124,13 the Commission addressed the role of a review panel and concluded that it should apply the following principles to its consideration of the review applications before it:

• First, decisions of the Commission are intended to be final; the Commission’s rules recognize that a review should only be granted in those limited circumstances described in Rule 016.

• Second, the review process is not intended to provide a second opportunity for parties with notice of the application to express concerns about the application that they chose not to raise in the original proceeding.

• Third, the review panel’s task is not to retry the … application based upon its own interpretation of the evidence nor is it to second guess the weight assigned by the hearing panel to various pieces of evidence. Findings of fact and inferences of fact made by the hearing panel are entitled to considerable deference, absent an obvious or palpable error.14

20. In Decision 22166-D01-201615, the Commission also provided guidance on the purpose of a review application:

30. The review process is not intended to provide a second opportunity for parties to reargue the issues in a proceeding, nor is it an opportunity to express concerns about a decision determining issues in a related proceeding.

21. Further, in Decision 22797-D01-2017,16 the Commission stated:

42. … The review applicants repeated many of those same arguments in their respective review applications. A review application is not an opportunity to reargue or seek to bolster arguments previously made and rejected. In the absence of an error of fact, law or jurisdiction that could lead the Commission to materially vary or rescind the original

13 Decision 2012-124: AltaLink Management Ltd. and EPCOR Distribution & Transmission Inc., Decision on

Request for Review and Variance of Decision 2011-436 Heartland Transmission Project, Proceeding 1592, Applications 1607924-1, 1607942-1, 1607994-1, 1608030-1, 1608033-1, May 14, 2012.

14 Decision 2012-124, at paragraph 31. 15 Decision 22166-D01-2016: Request for Review and Variance of Decision 21515-D01-2016, ATCO Pipelines’

2015-2016 Revenue Requirements Compliance Filing to Decision 3577-D01-2016, Proceeding 22166, April 5, 2017.

16 Decision 22797-D01-2017: Applications to Review and Vary Decision 21115-D01-2017, Proceeding 22797, December 11, 2017.



decision, disagreement or dissatisfaction with the Commission’s interpretation or agreeing with a dissenting view are not grounds for granting a review.

22. These principles have been endorsed by the Commission in subsequent decisions. The review panel has reviewed these principles, finds them to be appropriate in the circumstances of this review application proceeding and has applied them in its consideration of the relevant evidence and argument.

5 Grounds for review and hearing panel findings

23. In its review application, Calgary advanced two grounds for granting a review of the Costs Rulings.

24. First, Calgary submitted that previously unavailable facts could lead the Commission to materially vary or rescind the Costs Rulings, a ground for granting a review pursuant to sections 4(d)(ii) and 6(3)(b)(i) of Rule 016. These previously unavailable facts included significant delays in the IT common matters proceeding, limited transparency and disclosure of information, an expanded scope in that proceeding, the need for repeated motions, and the extent of the confidential material on the record.

25. Second, Calgary submitted that the Costs Rulings contained errors of facts or mixed fact and law that could lead the Commission to materially vary or rescind the Costs Rulings, a ground for granting a review pursuant to sections 4(d)(i) and 6(3)(a) of Rule 016. These errors of fact or mixed fact and law related to the hearing panel’s consideration of: the scope of the proceeding, the implications of not granting costs recovery eligibility with regard to the conduct of the ATCO Utilities and its shareholders, the “free-rider” effect and the benefits of confidential treatment of information.

26. The review panel has considered each of the grounds raised in the sections below.

6 Section 4(d)(ii) grounds – previously unavailable facts

27. In Section 3 of the review application, Calgary argued that several previously unavailable facts, material to the Costs Rulings could lead the review panel to materially vary or rescind the Costs Rulings pursuant to sections 4(d)(ii) and 6(3)(b)(i) of Rule 016.

Calgary’s submissions

28. Calgary submitted that a review is justified on the basis of five previously unavailable facts that directly and adversely increased Calgary’s costs of participating in the IT common matters proceeding. Calgary submitted that these facts were not known and could not have been considered by the hearing panel when deliberating on the Costs Rulings or were contrary to the considerations or assumptions made by the hearing panel in the Costs Rulings. The five previously unavailable facts are summarized below.

29. First, Calgary stated that significant and undue delays occurred in the IT common matters proceeding that were not caused by Calgary. Calgary described 140 days of delay resulting from six time extension requests, the completion of the benchmark study taking nine months longer



than anticipated and the oral hearing being delayed by 16 months from the originally set dates. Calgary alleged that these delays resulted in re-reviews and refreshers, which increased Calgary’s costs. Calgary said that it could not have reasonably anticipated these delays and the additional costs that would be incurred.17

30. Second, Calgary made several requests in 2015 for key written documents and materials18 in Proceeding 3577, to which ATCO Pipelines responded by indicating that the material was confidential or did not exist.19 Some of this material was produced in 2017 and 2018. Calgary submitted that had the materials been produced in 2015 when requested, the number of information requests would have been substantially reduced and delays would have been avoided that added to Calgary’s costs.20

31. Third, Calgary indicated that the scope of the original proceeding expanded beyond that originally anticipated by the parties. Calgary stated that after the final issues list was established, new issues were added with the Gartner benchmark report and certain transactional and related documents being added to the record. Calgary said that these documents were canvassed extensively in the IT common matters proceeding and in the resulting decision. Calgary submitted that the expanded scope also increased Calgary’s costs.21

32. Fourth, Calgary asked four rounds of information requests in the IT common matters proceeding and required motions for further and better responses on three of the rounds. Calgary submitted that the need for repeated motions resulted in increased costs to Calgary.22

33. Fifth, Calgary stated that the extent and degree of confidential material was beyond what could be reasonably anticipated. Calgary indicated that the ATCO Utilities requested confidential treatment of 209 of 276 exhibits and that Calgary incurred costs to manage the confidential materials.23

ATCO Transmission Utilities’ submissions

34. The ATCO Transmission Utilities submitted that Calgary should not have been under misconceptions with respect to its ability to qualify for costs recovery irrespective of the complexities or protraction of the IT common matters proceeding and that Calgary is attempting to circumvent Rule 022.24

Calgary’s reply and ATCO Transmission Utilities’ further reply submissions

35. In its reply submission, Calgary noted that the ATCO Transmission Utilities had not denied that the ATCO Utilities or its shareholders caused increased complexity and delays in the IT common matters proceeding.25 Calgary also noted that the ATCO Transmission Utilities did

17 Exhibit 24760-X0002, paragraphs 3.16-3.19. 18 Exhibit 24760-X0002, Appendix A provides the particulars of withheld information. 19 Exhibit 24760-X0002, paragraphs 3.5, 3.6. 20 Exhibit 24760-X0002, paragraph 3.10. 21 Exhibit 24760-X0002, paragraphs 3.20 to 3.24. 22 Exhibit 24760-X0002, paragraphs 3.12 to 3.15. 23 Exhibit 24760-X0002, paragraphs 3.25 to 3.28. 24 Exhibit 24760-X0008, paragraphs 20, 21. 25 Exhibit 24760-X0009, paragraphs 37 to 38.



not challenge the specific grounds and new facts cited by Calgary.26 In its reply, Calgary also requested that the Commission use its discretionary authority to direct the ATCO Transmission Utilities to pay Calgary its reasonable costs of participation in the IT common matters proceeding.27 The ATCO Transmission Utilities suggested in further reply that it was inappropriate for Calgary to raise this new form of alternative relief in its reply submissions and requested that the Commission disregard it.28

Review panel findings

36. The review panel finds that the facts that Calgary alleges were previously unavailable are insufficient to satisfy the requirements of Section 6(3)(b)(ii) of Rule 016 and would therefore not lead the Commission to materially vary or rescind the Costs Rulings.

37. The review panel acknowledges the complexity of the IT common matters proceeding, which included a voluminous record, several interlocutory motions, and a large amount of confidential material. The review panel further acknowledges that some of these aspects of the proceeding, which Calgary describes as “previously unavailable facts” led to delays and to increased participant costs. None of these factors relate to, inform or address the question of costs recovery eligibility under the provisions of Rule 022, however. Rather, these factors may inform the exercise of the discretion available to the Commission in determining whether an otherwise ineligible party should be granted costs recovery eligibility under the rule.

38. Sections 3 and 4 of Rule 022 describe the eligibility criteria for parties who wish to claim costs in relation to rate-related Commission proceedings and the discretion available to the panel when considering eligibility. The material portions of those sections for this proceeding are set out below:

3. Cost eligibility

3.1 The Commission may award costs to an intervener who has, or represents a group of utility customers that have, a substantial interest in the subject matter of a hearing or other proceeding and who does not have the means to raise sufficient financial resources to enable the intervener to present its interest adequately in the hearing or other proceeding.

3.2 An intervener may request an advance ruling on its eligibility for costs.

4 Ineligible interveners

Unless the Commission orders otherwise, the following types or classes of interveners are ineligible to claim costs:

…

(e) Municipalities including associations of municipalities.

….

26 Exhibit 24760-X0009, paragraph 41. 27 Exhibit 24760-X0009, paragraph 42. 28 Exhibit 24760-X0010.



39. Additional context describing the reasons for the ineligibility of particular interveners to recover costs is found in Bulletin 2008-16.29

Ineligibility for Intervener Costs Interveners who are municipalities, utilities, institutions, businesses or commercial associations are able to advance their own specific interests or the interests of their groups. These groups can join together as a result of their common interests. They are readily able to appoint their representative, provide instructions to their representative and take positions which advance the interests of their members. Also, these interveners have the means to raise sufficient financial resources to fund their participation in a hearing or other proceeding. A group or an association and its members are expected to participate in matters of significant priority to them, and to provide the resources to fund the intervention. If it is not sufficiently important for a group or association to participate at their own expense, then the customer base as a whole should not be called upon to fund the participation of these groups or associations. Municipalities are unique in that they are significant customers of utility services and often intervene in the name of the customers in their municipality. They are unique in this role because they represent a large and diffuse customer base that does, through its elected representatives and the tax base, have the means to raise the financial resources necessary to intervene in a proceeding.

40. The review panel observes that the hearing panel’s evaluation of Calgary’s request for costs recovery eligibility in the Costs Ruling of August 13, 2015 included a consideration of the provisions of Rule 022, of the policy behind those provisions and of the hearing panel’s ability to exercise its discretion to allow costs recovery eligibility despite the stated eligibility criteria, as reflected in paragraphs 44 and 45 of that ruling:

44. The ineligibility of municipalities to claim cost recovery is a long-standing feature of the Commission’s intervener costs apparatus. The rationale for the exclusion of municipalities and other enumerated entities from the Rule 022 cost recovery mechanism may be understood with reference to Section 3 of the rule. This provision states that the Commission may award costs to an intervener representing persons with a “substantial interest in the subject matter” of a proceeding, but which “does not have the means to raise sufficient financial resources to enable [it] to present its interests adequately.” Section 4 of the same rule lists several classes of interveners that are presumptively ineligible to benefit from the application of Section 3.

45. Calgary has an interest in the outcome of the IT Common Matters Proceeding by virtue of the fact that its citizens are charged Alberta Electric System Operator tolls which are based on costs of all electric transmission utilities, including ATCO Electric-Transmission. However, it also has the means to provide financial support for any intervention it may elect to mount on behalf of its citizens. Calgary’s prior experience in Commission proceedings involving the assessment of IT-related evidence does not change this fact, or otherwise militate in favour of costs of its intervention ultimately being passed on to ratepayers, generally. The Commission considers that the alleged consequence of other Albertan ratepayers receiving a “free-ride” with respect to the anticipated benefits of its intervention is something that the city must consider when making a determination with respect to how much of its resources to commit to this matter.

29 Bulletin 2008-16, Draft Revised Rule 022, Rules on Intervener Costs in Utility Rate Matters, July 31, 2008.



41. In paragraph 44 of the above Costs Ruling, the hearing panel references that it is a longstanding feature of the Commission’s intervener costs apparatus that municipalities are ineligible to claim costs recovery and provides the rationale for this by reference to Section 3 of the rule. In paragraph 45, the hearing panel finds that Calgary has the means to provide financial support for any intervention it may elect to mount. The Costs Ruling also considers the arguments advanced by Calgary in support of its request, which Calgary raised again in this review proceeding, including the “free-rider” effect and the contention that not granting costs recovery eligibility will have the effect of promoting abuses of process by the involved utilities.30 In the result, the hearing panel applied the Rule 022 eligibility criteria, and decided not to exercise its discretion to grant Calgary’s request for costs recovery.

42. Rule 022 does not articulate any criteria for costs recovery eligibility related to the anticipated duration or complexity of a proceeding either in the first instance or to inform the Commission’s discretion to allow costs eligibility to an otherwise ineligible intervener. Similarly, the costs eligibility provisions of Rule 022 do not include a provision for granting eligibility to participants who are otherwise ineligible, if the costs of participating in a proceeding exceed expectations reasonably anticipated at the commencement of a proceeding or at the time a ruling on costs recovery eligibility is made. Participants decide whether or not to participate in a proceeding based on the costs eligibility criteria articulated in Rule 022 and any ruling issued by the Commission. The Commission may exercise its discretion to extend eligibility under the rule, but the hearing panel declined to do so on two occasions.

43. It is notable, that Calgary’s second request for costs recovery eligibility was filed in response to the ATCO Transmission Utilities’ request for a six-month suspension of the IT common matters proceeding to complete a benchmark study. In its November 19, 2015 ruling, the hearing panel granted the suspension and in doing so, would have understood that it would cause additional delay and complexity. Notwithstanding, the hearing panel did not exercise its discretion to extend costs recovery eligibility to Calgary. Rather, the hearing panel maintained its earlier ruling on Calgary’s costs eligibility, without qualification, stating that “the granting of the applicant’s request to file supplementary evidence does not impact the rationale for its [previous] determination in this regard.”31

44. The review panel considers that the following findings of Fraser C.J.A. of the Alberta Court of Appeal in ATCO Gas and Pipelines ltd. v. Alberta (Utilities Commission), 2014 ABCA 397 are directly relevant to the present review application.

82. The reality is this. For at least the last 91 years, the Legislature of this province has conferred on the Commission and its predecessors, including the PUB, the express statutory authority to determine whether to award participants in proceedings or hearings before it, their legal costs, if any, and, if so, the amount of those legal costs. This grant represents a deliberate legislative choice.

83. Section 21, the current statutory provision on this subject, has been in the Act since the Act came into force January 1, 2008. Since then, the Commission has consistently relied on this section in deciding when and if costs should be awarded to participants in proceedings or hearings before it, and if so, the amount of those costs. Section 21(1) provides as follows:

30 Paragraphs 42 to 46 of the August 13, 2015 Costs Ruling. 31 Exhibit 20514-X0115, paragraph 11.

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Costs of Proceedings 21(1) The Commission may order by whom and to whom its costs and any other costs of or incidental to any hearing or other proceeding of the Commission are to be paid.

…

98. Further, a general discretion to award costs necessarily implies the discretion to decline to award costs: Northern Engineering & Dev. Co. v Philip, [1930] 3 DLR 387, [1930] 1 WWR 615 (Man CA). Indeed, this Court has held that it will not interfere simply because a Board exercises its discretion to deny costs for participating in a hearing, even in the absence of reasons: Wood Buffalo (Regional Municipality) v Alberta (Energy and Utilities Board), 2007 ABCA 192 (CanLII) at paras 9-10, 417 AR 222.

99. While not directly in issue here, the Commission’s discretion in awarding costs must be exercised in a principled fashion: Green, Michaels and Associates Ltd., City of Edmonton and Consumers’ Association of Canada (Alberta Branch) v Public Utilities Board (1979), 13 AR 574 at paras 20-23, 94 DLR (3d) 641 (Alta SC(AD)) [Green]; Consumers’ Association of Canada (Alberta) and Edmonton v Public Utilities Board (1985), 1985 ABCA 5 (CanLII), 58 AR 72 at paras 18-28 (CA). However, where, as here, a statute grants a tribunal discretion and the ability to pass regulations (which includes guidelines) regarding the exercise of that discretion, “the tribunal is able to mold the exercise of the discretion in any reasonable way that is not inconsistent with the statute”: Kelly v Alberta (Energy Resources Conservation Board), 2012 ABCA 19 (CanLII) at para 17, 519 AR 284. In this regard, as this Court’s decision in Green itself illustrates, a utility board can exercise its discretion on legal costs in a principled manner by following its own guidelines. Moreover, guidelines passed by tribunals under their grant of jurisdiction to do so are themselves entitled to deference when they are within that grant framework: see Parada v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2011 ABCA 44 (CanLII) at paras 26-28, 499 AR 169; and Martin v Alberta (Workers’ Compensation Board), 2014 SCC 25 (CanLII) at para 11, [2014] 1 SCR 546 [Martin]. (footnotes and emphasis omitted)

45. As noted by the Court of Appeal, the exercise of discretion with respect to costs should not be interfered with lightly. Further, as noted in the reference to Decision 2012-124 in Section 4 above, the findings of the hearing panel in interpreting and weighing evidence should be given considerable deference by a review panel.

46. The review panel considers that the hearing panel reviewed the applicable provisions of the Alberta Utilities Commission Act and the costs eligibility guidelines set out in Rule 022, and explicitly considered the underlying rationale with respect to costs eligibility. This review included consideration of the hearing panel’s own discretion to allow costs recovery eligibility notwithstanding the stated eligibility provisions of the rule.

47. Although the review panel finds that the aforementioned analysis is dispositive of the issue, it acknowledges that some portion of “the previously unavailable facts” alleged by Calgary in the context of this review proceeding may not have been fully anticipated by Calgary or by the hearing panel at the time Calgary submitted its requests for costs recovery eligibility. The hearing panel would, however, have been fully aware of the ATCO Utilities’ lengthy and contentious history of IT master service agreement related proceedings. These proceedings have consistently involved complex matters, procedural disputes and substantial delays and, based on

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the record of the IT common matters proceeding, these complexities, procedural disputes and delays were again apparent at the time that the hearing panel issued its Costs Rulings.

48. For all of the above reasons, the review panel does not consider that any of the five additional facts advanced by Calgary in its review application provide a basis that could lead the Commission to materially vary or rescind the decisions of the hearing panel to deny Calgary eligibility for costs recovery in the Costs Rulings. Accordingly, Calgary’s request for a review on this ground is denied.

49. With respect to Calgary’s alternative relief request to direct the ATCO Utilities to pay Calgary’s reasonable costs of participating in the IT common matters proceeding, the review panel notes that in its November 19, 2015 Costs Ruling the hearing panel dismissed a similar direction that Calgary requested. The review panel is not persuaded that any of the additional facts or arguments advanced by Calgary in this review proceeding provide a basis that could lead the Commission to materially vary or rescind the decision of the hearing panel in its November 19, 2015 Costs Ruling.

7 Section 4(d)(i) grounds – errors of fact, law or jurisdiction

50. In Section 4 of the review application, Calgary submitted that the hearing panel made errors of fact or mixed fact and law concerning its consideration of: the scope of the IT common matters proceeding, the extent of confidential material filed in the proceeding, the free-rider effect related to Calgary’s intervention and the implications of not granting costs recovery eligibility with regard to potential abuses of process. Calgary submits that these errors were material to the Costs Rulings and could lead the review panel to materially vary or rescind the Costs Rulings pursuant to sections 4(d)(i) and 6(3)(a) of Rule 016.

Calgary’s submissions

51. Calgary submitted several alleged errors of fact or mixed fact and law that led to the hearing panel’s denial of costs recovery eligibility for Calgary, as summarized below.

52. First, Calgary stated that in the Costs Rulings the hearing panel only referred to testing of matters concerning the Master Service Agreements (MSAs) and associated costs for the cost-of-service ATCO Utilities, (i.e. ATCO Pipelines and ATCO Electric-Transmission) and did not include the ATCO Utilities under performance-based regulation32 (PBR utilities).33 Calgary submitted that by not referencing the PBR utilities that the hearing panel misapprehended the ultimate scope, complexity and duration of the original proceeding,34 which in turn added to the complexity and cost of Calgary’s participation in the original proceeding.

53. Second, Calgary submitted that the hearing panel was not persuaded by the suggestion that a refusal to allow Calgary costs recovery eligibility would have the effect of promoting abuses of process by the involved utilities.35 Calgary cites Decision 20514-D02-2019, which

32 ATCO Gas and ATCO Electric-Distribution. 33 Exhibit 24760-X0002, paragraph 4.6. 34 Exhibit 24760-X0002, paragraph 4.8. 35 Exhibit 20514-X0056, paragraph 46.



notes that the decisions of the ATCO Utilities’ shareholders (ATCO) contributed to the duration and complexity of the original proceeding.36

335. The substantial duration and regulatory complexity of this proceeding have been largely influenced by: (i) ATCO’s chosen sourcing strategy; (ii) the paucity of evidence documenting ATCO’s consideration of the sourcing alternatives available to it or the costs and the potential price outcomes associated with each of those options (and most particularly, those associated with obtaining IT services from a provider not required to purchase ATCO I-Tek); and (iii) ATCO’s decision to run the MSA and the ATCO I-Tek sale processes concurrently (collectively, the ATCO decisions).

336. The ATCO decisions have also significantly limited the quality of the evidence on the record of this proceeding. There is no then-contemporaneous evidence of what the MSA pricing would have been had ATCO pursued any of the other sourcing options available to it or chosen not to run the MSA and ATCO I-Tek sale processes simultaneously. Rather, parties have been left to offer evidence that seeks to artificially disentangle the MSA and ATCO I-Tek sale processes to discern the likely effect of the sale process on MSA pricing many years after the fact. This proceeding commenced almost four years ago. Since then, the parties have been able to garner evidence with limited value. It is unlikely that further process would generate more or better evidence than that currently available.

Calgary alleges that the hearing panel erred in concluding that there was no link between the denial of Calgary’s costs recovery eligibility and the potential for ATCO to engage in conduct that was ultimately found to be adverse to the fair and efficient testing of the case by Calgary.37

54. Third, Calgary submitted that the hearing panel considered that the “free-rider” problem was a factor that Calgary should have considered “when making a determination with respect to how much of its resources to commit to this matter.”38 Calgary stated that it was unable to foresee the inefficiencies, complexities, and protraction of the original proceeding, and the extent that the free-rider problem would be exacerbated by these developments. Calgary alleged that the hearing panel erred by misapprehending the scope, complexity, and duration of the original proceeding in stating that Calgary must consider the free-rider effects when it determines whether to participate in a proceeding.

55. Fourth, Calgary submitted that the hearing panel erred in its determination of the benefits of confidential treatment of the ATCO Utilities’ material. Calgary argued that granting confidential treatment results in asymmetric benefits and burdens and that it is unreasonable and unfair for a party to incur substantial costs that relate to matters exclusively benefitting the other party. Calgary suggested that the hearing panel erred in not extending eligibility for costs recovery to Calgary given that the benefit of confidential treatment of the ATCO Utilities material was not symmetrical between the parties.39

36 Decision 20514-D02-2019: The ATCO Utilities (ATCO Gas and Pipelines Ltd. and ATCO Electric Ltd.),

Information Technology Common Matters Proceeding, June 5, 2019, paragraphs 335-336. 37 Exhibit 24760-X0002, paragraph 4.5. 38 Exhibit 20514-X0056, paragraph 45. 39 Exhibit 24760-X0002, paragraph 4.15.



ATCO Transmission Utilities’ submissions

56. The ATCO Transmission Utilities commented that Calgary has not advanced any new information that discloses any errors of law or fact that should lead the Commission to change its Costs Rulings and that this is Calgary’s fourth attempt40 to seek costs recovery eligibility41 and that the issues raised are not new and do not constitute errors of law or fact.42 The ATCO Transmission Utilities further submitted that the free-rider argument is not new and the second Costs Ruling specifically considered the filing of the benchmark report with the Commission stating, with reference to Calgary’s further application for costs recovery eligibility, that “the granting of the applicants’ request to file supplementary evidence does not impact the rationale for its determination in this regard.”43

Calgary’s reply submissions

57. In its reply submission, Calgary reiterated its arguments including that the hearing panel noted in Decision 20514-D02-2019 the degree to which the ATCO Utilities caused interveners to have difficulty in the preparation of filing evidence and participating in the IT common matters proceeding.44 Calgary stated that the hearing panel erred in the rulings when it did not accept Calgary’s claim that the denial of costs recovery eligibility would promote abuse of process.45 Calgary added that at the time of the rulings, neither Calgary nor the hearing panel were aware of the existence of the material not yet produced by the ATCO Utilities.46

58. Calgary stated that free-rider effects were exacerbated by the protraction and complexity of the original proceeding and that it was an error for the hearing panel to expect a party to anticipate these effects at the start of the IT common matters proceeding and when the ATCO Utilities filed the benchmark report.47 The issue, Calgary submitted, is whether the hearing panel’s reasons on free-rider effects were based on an error or misapprehension by the hearing panel of the scope, complexity, and duration of the original proceeding and the extent to which free-rider effects would be exacerbated.48 Calgary argued that this is a different issue than was considered in the Costs Rulings, which it said considered free-rider effects on Calgary, not the degree to which free-rider effects would be exacerbated by allowing the ATCO Utilities to file the benchmark report.49

Review panel findings

59. The review panel finds that Calgary has not shown that an error in fact or mixed fact and law has occurred on the face of the Costs Rulings or on a balance of probabilities.

40 The initial two attempts resulted in the issuance of the Costs Rulings under review. The third attempt is

Calgary’s application assigned to Proceeding 24294, to which the Commission issued a closure letter. 41 Exhibit 24760-X0008, paragraphs 3, 18. 42 Exhibit 24760-X0008, paragraph 14. 43 Exhibit 24760-X0008, paragraphs 15, 16. 44 Exhibit 24760-X0009, paragraph 24. 45 Exhibit 24760-X0009, paragraph 25. 46 Exhibit 24760-X0009, paragraph 26. 47 Exhibit 24760-X0009, paragraph 31. 48 Exhibit 24760-X0009, paragraph 32. 49 Exhibit 24760-X0009, paragraph 33.



60. The review panel considers that Calgary’s first ground, that the hearing panel misapprehended the scope of the IT common matters proceeding to not include the PBR utilities, fails on two bases. First, is not relevant to informing or addressing the question of eligibility for costs under the provisions of Rule 022. Second, both Bulletin 2015-1150, which initiated the IT common matters proceeding and described “the examination of IT costs arising from MSA pricing negotiated by the ATCO Utilities (including ATCO Pipelines, ATCO Electric Transmission and the ATCO distribution utilities)", and the hearing panel’s August 13, 2019 Costs Ruling, which stated that the findings of the IT common matters proceeding “are not likely… to affect the PBR rates [of the PBR utilities] under the current term of their PBR plans,”51 recognized the potential for future PBR rates to be affected by the outcome of the IT common matters proceeding. Further, the hearing panel did not direct the PBR utilities (ATCO Gas and ATCO Electric-Distribution) to participate in the original proceeding, given that the MSAs among the ATCO Utilities were identical, but advised parties that the PBR utilities may be directed to participate at a later date. The review panel therefore finds that the scope of the proceeding is not relevant to the application of Rule 022 and, in any event, that there was no misapprehension of the scope of the original proceeding.

61. Calgary’s second ground is that the hearing panel erred in concluding that there was no link between the denial of Calgary’s costs recovery eligibility and the potential for abuse of process that was ultimately found to be adverse to the fair and efficient testing of the case. Calgary has not provided any evidence or otherwise demonstrated on a balance of probabilities that it was the hearing panel’s denial of Calgary’s request for costs eligibility that caused any conduct that increased the duration or complexity of the IT common matters proceeding, nor has Calgary demonstrated that such a result would constitute an error in fact or mixed fact and law. Further, the review panel notes that Rule 022 does not contemplate costs recovery eligibility as a means to manage conduct between parties or suggest that it is the responsibility of parties wishing to participate in Commission proceedings to manage the conduct of other parties.

62. The “free-rider” issue was directly considered by the hearing panel. The review panel finds that Calgary is re-arguing its position that was raised in the original proceeding, albeit phrased in terms of the complexity and duration of the IT common matters proceeding exacerbating the free-rider effect. As noted in Section 4 above, a review application is not intended to provide an opportunity for parties to reargue or bolster arguments made in the original proceeding.

63. Calgary’s fourth ground is that the hearing panel erred in its determination of the benefits of confidential treatment of material submitted by the ATCO Utilities. The review panel finds that the hearing panel made no determination in relation to confidential materials in the Costs Rulings, nor did Calgary argue for costs recovery eligibility on the basis of the effort associated with managing confidential material. The review panel also notes that Rule 022 does not expressly contemplate the consideration of whether a proceeding involves confidential information when granting costs recovery eligibility to an ineligible intervener. For these reasons, the review panel finds that no errors in fact or mixed fact and law were committed by

50 Bulletin 2015-11: Initiating the ATCO Utilities information technology (IT) common matters proceeding to

examine IT costs related to the master services agreements (MSAs) between the ATCO Utilities and Wipro Solutions Canada Limited (Wipro), June 4, 2015.

51 Exhibit 20514-0056, paragraph 38.



the hearing panel by not expressly considering the existence of confidential material in making its determination.

64. The review panel finds that the hearing panel’s assessments of Calgary’s requests for costs recovery eligibility in each of the Costs Rulings were determinations that, on their face or on a balance of probabilities, were not unreasonable. Calgary has not shown that an error in fact, law or jurisdiction exists that could lead the review panel to materially vary or rescind the Costs Rulings. Further, to the extent that Calgary’s arguments suggest that the hearing panel committed an error of fact, law or jurisdiction in the exercise of its discretion not to grant costs recovery eligibility to Calgary, the review panel finds, for the above reasons, that Calgary has not shown, either on a balance of probabilities or apparent on the face of the Costs Ruling, that an error in fact, law or jurisdiction exists. Accordingly, Calgary’s request for a review on this ground is denied.

8 Decision

65. In answering the preliminary question, the review panel finds that Calgary has not met the requirements for a review of the findings of the hearing panel in the Costs Rulings and the application for review is dismissed.

Dated on December 10, 2019. Alberta Utilities Commission (original signed by) Kristi Sebalj Commission Member

August 13, 2015

To: Parties currently registered on Proceeding 20514

The ATCO Utilities (ATCO Gas and Pipelines Ltd. and ATCO Electric Ltd.)

Information Technology (IT) Common Matters Proceeding

Proceeding 20514

Process schedule and issues list

1. On June 4, 2015, the Alberta Utilities Commission released Bulletin 2015-111 which

initiated the ATCO Utilities Information Technology (IT) Common Matters Proceeding

(Proceeding 20514). Bulletin 2015-11 contained a preliminary list of issues for consideration in

Proceeding 20514. The Commission invited registered parties to file written submissions

regarding any proposed modifications or additions to this list, and any other comments on

process by July 13, 2015.

2. On July 13, 2015, the Commission received submissions from the ATCO Utilities, the

Office of the Utilities Consumer Advocate (UCA), The City of Calgary, and the Consumers’

Coalition of Alberta (CCA).

Submissions of parties

ATCO Utilities

3. In their submissions, the ATCO Utilities cited Decision 2014-169 (Errata)2 in support of

the proposition that the Commission’s jurisdiction is reflected in two primary mandates:

(i) ensuring just and reasonable rates; and, (ii) ensuring the safety and integrity of the utility

system in Alberta. The utilities also cited this decision in support of their position that the

Commission does not possess the jurisdiction to dictate either the party a utility will contract

with, or the terms and conditions of commercial contracts it may enter into. The ATCO Utilities

considered that the AUC's jurisdictional ruling in Decision 2014-169 (Errata) is instructive with

respect to the determination of the scope of the IT Common Matters Proceeding. The ATCO

Utilities asserted that the AUC’s mandate entitles it to examine whether the pricing included in

1Bulletin 2015-11, Initiating the ATCO Utilities information technology (IT) common matters proceeding to

examine IT costs related to the master services agreements (MSAs) between the ATCO Utilities and Wipro

Solutions Canada Limited (Wipro), June 4, 2015. 2

Decision 2014-169 (Errata): ATCO Utilities (ATCO Gas, ATCO Pipelines and ATCO Electric Ltd.), 2010

Evergreen Proceeding for Provision of Information Technology and Customer Care and Billing Services Post

2009 (2010 Evergreen Application), Proceeding 240, Application 1605338-1, February 6, 2015.

Appendix 1

http://www.auc.ab.ca/news-room/bulletins/Bulletins/2015/Bulletin%202015-11.pdf

http://www.auc.ab.ca/applications/decisions/Decisions/2015/2014-169.pdf

Alberta Utilities Commission August 13, 2015 Page 2 of 12

the ATCO Pipelines and ATCO Electric-Transmission master services agreements (MSAs) is

reflective of fair market value (FMV), and that this assessment will, in turn, allow the AUC to

determine the IT costs to be included the respective ATCO Pipelines and ATCO Electric-

Transmission revenue requirements.

4. The ATCO Utilities submitted that the following items should be removed from the

preliminary issues list as being either irrelevant, or alternatively, beyond the Commission’s

jurisdiction to assess:

Issue 1(e) – Comparison to prior MSAs between the ATCO Utilities and ATCO I-Tek.

Issue 2 – Sourcing strategy and review undertaken by the ATCO Utilities prior to the

execution of the Wipro MSAs.

5. The ATCO Utilities also requested that the Commission clarify the scope of this

proceeding, and as detailed in the June 9, 2015 letter, confirm that—consistent with earlier

Commission Rulings—this proceeding will respect the performance-based regulation (PBR)

process that governs ATCO Gas and ATCO Electric-Distribution.

6. In its correspondence dated June 9, 2015, the ATCO Utilities noted that in Bulletin 2015-

11, the Commission identified the possibility that the issues determined in this IT Common

Matters Proceeding may also have future implications for ATCO Gas and ATCO Electric-

Distribution, collectively the “ATCO PBR Utilities.” In this regard, the ATCO Utilities stated:

... the IT MSAs with Wipro are identical in all material respects for AP, AE-T and the

ATCO PBR Utilities. Furthermore, the pricing under all of the MSAs is the same for each

contracted service. The ATCO PBR Utilities acknowledge that, at some future time, they

may be impacted by the pricing decisions rendered in this IT Common Matters

proceeding, as the Wipro MSAs will still be in existence at the time the current PBR

mechanisms are set to expire. Depending on the outcome of the Commission's recently

initiated process to consider the next generation PBR regime (Bulletin 2015-10, dated

May 8, 20 15); and furthermore depending on whether a rebasing for all PBR companies

occurs for 2018, it is possible that an examination of whether the then prevailing future

Wipro MSA IT rates are reflective of Fair Market Value, could occur at that time.3

7. The ATCO Utilities submitted that, in accordance with the provisions of their current

PBR plans, their rates are determined by the PBR formula and are separated from the IT costs

subject to this proceeding. Therefore, according to the ATCO Utilities, findings in this

proceeding should not affect their PBR rates until the end of the term of their current PBR plans

in 2017. Further, the ATCO Utilities acknowledged that any future impacts of the new Wipro IT

MSAs on the ATCO PBR utilities should be considered as part of the process established by the

Commission for the next generation of PBR. Any such future process and the potential future

implications are not beyond the scope of the current IT Common Matters Proceeding. Therefore,

the ATCO Utilities submitted that the PBR utilities are not parties to the IT Common Matters

Proceeding and the existing PBR decision should continue to operate, as contemplated.

3 Exhibit 20514-X0033, page 2.


UCA

8. The UCA stated that the pricing contained in the subject MSAs should be assessed in

comparison to both FMV pricing and least cost alternatives, the impact of the total contract value

(TCV) be assessed and also requested that the Commission consider how intellectual property

would be dealt with under the MSAs. It asked that the following be added to the issues list for

the proceeding:

Issue 1 – Assessment of IT rates contained in the subject MSAs in comparison to fair

market value (FMV) and the least cost alternative:

(f) Impact of total contract value, risk allocation, and term on IT rates.

Issue 3 – Structure and operation of MSAs:

(i) Ownership of IT intellectual property and licensing rights.

(j) Other provisions contained within the MSAs that arise during the course of the

proceeding.

9. The UCA asserted that a comparison of rates contained in the subject MSAs to the least

cost alternative is relevant to this proceeding because this is a “long-standing and fundamental

criterion” when considering both the reasonableness and prudence of utility costs. It also argued

that while comparisons to least cost alternatives have historically been limited to cases involving

the assessment of inter-affiliate transactions, the Commission should consider this factor in the

instant case because “the terms of the I-Tek/Wipro sale and the MSAs at issue were negotiated

while ATCO I-Tek was an ATCO Utilities affiliate, making (identical) Code of Conduct

obligations applicable.”

10. In the UCA’s view, the Commission should defer making a definitive finding concerning

the applicability of the IT Common Matters Proceeding to PBR utilities until such time as the

parties have been given an opportunity to review any filed evidence.

Calgary

11. In its submissions, Calgary proposed that the following items should be added to the

issues list for the IT Common Matters Proceeding:

Issue 1 – Assessment of IT rates contained in the subject MSAs in comparison to FMV:

(i) Impact on rates and volumes of the sale of I-Tek to Wipro.

(j) Impact of global sourcing and pricing on IT rates.

(k) Testing IT rates and pricing for new Wipro services added after 2015-2016.

(l) Impact of proposed system and architecture changes to ATCO IT applications and

infrastructure on IT pricing.


Issue 2 – Sourcing strategy and review undertaken by the ATCO Utilities prior to

execution of 10-year MSAs with Wipro:

(e) Conduct of MSA negotiations with Wipro.

Issue 3 – Structure and operation of MSAs:

(i) Impact of total contract value and term on MSA terms and conditions.

12. Calgary recommended that the Commission should also consider establishing an

operational definition of FMV to be used by the parties in the preparation of their respective

evidentiary submissions which could be used by parties to test and assess the MSA prices with

Wipro, a third-party IT provider.

13. Calgary submitted the following comments on process steps for the proceeding:

The Commission should direct the ATCO Utilities to provide the placeholders for IT

costs for the applicable test years broken out by operation and maintenance costs,

capital expenditures, revenue requirement impact, and forecast IT volumes as directed

in Bulletin 2015-11.

Information requests (IRs) to the ATCO Utilities: A further round of IRs is necessary as

Calgary was unable to pose IRs to ATCO Electric in Proceeding 20272, because

Calgary was not granted standing in that proceeding until after the due date for filing of

IRs. Also, questions on previously filed IRs of ATCO Pipelines and ATCO Electric-

Transmission may serve to limit further process steps.

As with Proceeding 3577, the Commission should establish a step for parties to file

motions for further and better responses to IRs, as Calgary has not had the chance to

review the ATCO Pipelines round 2 IRs from Proceeding 3577 for adequacy. In terms

of timing, this step should also include responses to round 1 IRs in this proceeding, and

so should be placed after the responses to round 1 IRs are filed by ATCO.

Intervener evidence

IRs on intervener evidence

Responses to IRs on intervener evidence

Rebuttal evidence

Given the busy fall regulatory schedule and witness availability, Calgary recommended

that oral hearing be held in January or February 2016.

14. Finally, Calgary requested an order under Section 4 of Rule 022: Rules on Costs in Utility

Rate Proceedings, confirming its eligibility for cost recovery in this proceeding. In doing so, it

http://www.auc.ab.ca/acts-regulations-and-auc-rules/rules/Documents/Rule022.pdf


argued that its prior participation in proceedings 32, 77 and 240,4 all of which involved various

assessments of IT-related evidence, would allow it to contribute to the efficient conduct of the IT

Common Matters Proceeding. In Calgary’s view, the fact that the involved ATCO companies are

transmission utilities also militates in favour of it being granted costs eligibility, as all

ratepayers—not just Calgary citizens—will benefit from its intervention.

15. Calgary also submitted that a refusal to permit it to recover costs may encourage the

ATCO Utilities to “drag out the proceeding and drive up Calgary’s costs, which may prejudice

Calgary’s ability to fairly test the ATCO applications.” Finally, Calgary submitted that, in any

event, each of ATCO Pipelines and ATCO Electric-Transmission have hearing cost reserve

accounts through which they can recover any costs that would ultimately be paid in connection

with Calgary’s intervention.

CCA

16. The CCA requested that three matters be added to the issues list for Proceeding 20514.

These issues did not specifically relate to the consideration of pricing or other features of the

Wipro IT MSA, but rather to overarching concerns for the AUC in its discharge of its public

interest mandate. The areas of concern identified by the CCA are:

the adequacy of the public notice in Proceeding 20514

the public’s access to this proceeding, especially via the Commission’s e-Filing System

the current requirement to destroy confidential data provided under Commission

confidentiality rulings and the longer term impacts of asymmetrical retention of data

17. The CCA alleged that the contents of the public notice issued in respect of

Proceeding 20514 are inadequate insofar as that they do not highlight the ATCO Utilities’

intention to rely on confidentially provided evidence. Its complaint with respect to the public’s

access to the proceeding is primarily based on the fact that the AUC’s e-Filing System does not

permit “guest” log-in access by members of the public. Finally, the CCA also registered concerns

regarding what it considers to be the exacerbating effect of current Commission confidentiality

treatments on “asymmetrical retention of data.”

18. The CCA submitted that if an oral hearing is to occur in respect of Proceeding 20514, it

should be scheduled to occur in 2016.

Reply submissions

The ATCO Utilities

19. On July 17, 2015, the ATCO Utilities filed a reply to the submissions of interveners with

respect to proposed additions to the issues list and procedural matters. This submission was filed

4 Proceeding 32 - ATCO Utilities 2003-2007 Benchmarking and ATCO I-Tek Placeholders True-Up Application;

Proceeding 77 - ATCO Utilities 2008-2009 Evergreen Application; Proceeding 240 - ATCO Utilities 2010

Evergreen Application.


outside of the established procedural schedule set in Bulletin 2015-11. The ATCO Utilities

submitted that as the subject MSAs with Wipro are not affiliate agreements, the ATCO Group

Inter-Affiliate Code of Conduct has no application to them.

20. With respect to the submissions made by Calgary, the ATCO Utilities submitted that the

jurisdictional ruling of the Commission in Decision 2014-169 (Errata) clearly confirms that the

rate-making issue before the Commission is whether ATCO Pipelines and ATCO Electric-

Transmission are paying MSA prices that are, in aggregate, at or below FMV.

21. The ATCO Utilities submitted the AUC should apply the normal cost recovery rules with

respect to Calgary’s intervention and deny the city recovery of costs under Rule 022.

22. The ATCO Utilities stated that the CCA’s submission inappropriately explored several

generic issues with respect to AUC rules, processes and procedures. The CCA’s submission is

beyond the scope of the current proceeding and should be denied.

23. The ATCO Utilities supported the Commission utilizing its normal process for the

consideration of this IT Common Matters proceeding; but urged the Commission to consider

procedural steps that minimize regulatory lag and maintain rate prospectivity for the utilities.

UCA

24. On July 20, 2015, the UCA filed a response to the ATCO Utilities’ July 17, 2015

submission, which was filed outside of the established procedural schedule set in Bulletin 2015-

11.

25. The UCA submitted that it would be procedurally unfair for the Commission to allow the

ATCO Utilities to respond to other parties’ comments on the issues list and not afford the other

parties the same opportunity. To remedy this, the UCA requested that the Commission strike the

ATCO Utilities’ July 17, 2015 letter from the record of this proceeding and afford it no weight.

In the alternative, it asked that all other parties be granted a similar right of reply. The UCA

included responding comments in its submissions to be reviewed by the Commission, should

such leave be granted.

26. The UCA submitted that the ATCO Utilities’ requests to delete issue 1(e) (comparison to

prior MSAs between the ATCO Utilities and ATCO I-Tek) and the entirety of issue 2 (sourcing

strategy and review undertaken by the ATCO Utilities prior to the execution of the Wipro

MSAs) are unsupported and without merit. It submitted that the assessment of whether the

MSAs’ placeholder costs are prudent is not limited to reviewing the expert FMV evidence the

ATCO Utilities have filed in support of their application and that while FMV is an indicator of

prudence, the issues the ATCO Utilities seek to strike allow parties to elicit and bring forth

evidence that provides the necessary context to determine reasonableness and prudence.

27. The UCA also took issue with what it claimed was the ATCO Utilities’ misrepresentation

of its position with respect to the characterization of the Wipro MSAs. It confirmed that it did not

describe the new MSAs as affiliate agreements, but instead submitted that application of the least


cost alternative standard is required in the circumstances. Further, the UCA claimed that it did

not suggest that the Commission dictate terms and conditions of commercial contracts or the

parties with which a utility can contract, but rather included proposed additions to the issues list

to determine whether costs are prudent and reasonable in the circumstances.

Calgary

28. In a letter dated July 24, 2015, Calgary submitted that the ATCO Utilities had not

specified exactly how any of Calgary’s suggested additions fall outside of the jurisdictional

parameters established in Decision 2014-169 (Errata). It asserted that its intention is not to

subject the terms and conditions of the existing MSAs to revision, but rather to test the prudence

of the arrangements, including the negotiations that led to their conclusion.

29. With respect to the new IT services to be added to the scope of the existing MSAs after

2015-2016, Calgary stated that any Commission determination in Proceeding 20514 must

incorporate principles and processes to test those rates now, especially given that the current

proceeding is not restricted to the test years associated with current general rate applications

(GRAs) or general tariff applications (GTAs) of the ATCO Utilities. In Calgary’s view, the

Commission’s findings in this proceeding will not only impact ATCO’s cost of service utilities

but may also potentially impact any rebasing for, and rate bases of, the ATCO PBR utilities.

30. Calgary also submitted that the sale of ATCO I-Tek to Wipro is relevant as an underlying

consideration with respect to the assessment of the overall prudence of the arrangements, and the

reasonableness of the rates under the MSAs. It argued that the required prudence review is not

limited to the conduct of the negotiations, but also must extend to the outcome of those

negotiations, namely the MSA prices and terms themselves, and the volumes to which they

relate. Calgary also stated that changes to systems and the architecture of ATCO’s IT

applications is relevant to, and could easily impact the structure of, pricing, whether such pricing

is reasonable and whether it will result in prudent costs being incurred by the utilities.

Commission ruling

31. The writer has been authorized by the Commission to communicate its findings on the

issues lists, process schedule, and Calgary’s request for cost eligibility.

Adequacy of process in Bulletin 2015-11

32. In Bulletin 2015-11, the Commission included a preliminary issues list to assist in

developing the scope of the ATCO Utilities IT Common Matters proceeding and established a

deadline of July 13, 2015, for parties to file submissions on the scope of issues to be considered

in Proceeding 20514. With respect to the UCA’s request that the ATCO Utilities’ July 17, 2015

reply to intervener comments on the issues list should be struck from the record, the Commission

finds that no party has been prejudiced by the supplemental submission especially given the

subsequent submissions filed by the UCA on July 20, 2015, and Calgary on July 24, 2015.


33. The Commission considers that, in any event, the supplemental submissions provided by

interveners negated the need for further formal process with respect to finalizing the issues list.

However, in making this determination, the Commission emphasizes, for the benefit of all

parties, that it may summarily disregard such unsolicited submissions in the future with

consequential disallowance of associated costs. In the event that any party perceives that it is

exposed to prejudice as a result of an existing Commission process, it is incumbent on them to

immediately formally request additional process, or, alternatively, seek advance leave to file

submissions (i.e., the submissions in respect of which leave is sought may not be appended the

application for leave).

Issues list

34. The Commission’s primary mandates are to ensure just and reasonable rates, and the

safety and integrity of the utility system in Alberta. However the Commission is not prepared to

limit the examination of IT services and rates to the narrow FMV assessment asserted by the

ATCO Utilities.

35. The Commission considers that many, if not all, of the additional issues submitted for

inclusion on the issues list by the UCA and Calgary are potentially relevant to its inquiries in

Proceeding 20514. Therefore, it has amended the preliminary list in the manner reflected in

Appendix A to this decision to include them. In doing so, the Commission cautions participants

that inclusion of a particular item on the issues list is not to be construed as any indication of the

weight that may be assigned to associated evidence by the Commission in its ultimate assessment

of the prudence of costs arising from the Wipro IT MSAs. Questions of weight will be

determined in the normal course after consideration of argument based on the record of the

proceeding.

36. The Commission is not persuaded that it is necessary to determine a common operating

definition of FMV at this point in the proceeding. In arriving at this conclusion, it notes that the

ATCO Inter-affiliate Code of Conduct includes a definition of FMV which is sufficiently

detailed so as to inform the parties in preparing the content of their respective cases, regardless

of overall applicability of the code itself. While the Commission will not, at this time, dictate a

definition of FMV to be used by the parties, it nonetheless directs parties to ensure that any

definition(s) they may elect to employ are clearly and comprehensively described in their

respective materials.

37. The Commission has considered the CCA’s concerns regarding adequacy of notice,

public accessibility to the e-Filing System and the potential exacerbation of the effects

informational asymmetry resulting from application of the Commission’s existing procedures for

the treatment of confidential information. It has determined that these concerns, being of a

generic nature, are best addressed in a forum more capable of facilitating an adequately broad

policy-based assessment. Consequently, these issues have been forwarded to the AUC’s General

Counsel for further consideration.

38. The Commission observes that ATCO Gas and ATCO Electric-Distribution are currently

governed under the PBR regulatory framework, under which the companies’ rates are largely


decoupled from their costs, which exempts them from the traditional prudence assessment

mechanism applicable to cost-of-service regulated utilities such as ATCO Pipelines and ATCO

Electric-Transmission. Therefore, the findings in this proceeding are not likely, unless triggered

by provisions of their PBR plans, to affect the PBR rates of ATCO Gas and ATCO Electric-

Distribution under the current term of their PBR plans.

39. The Commission also notes the ATCO Utilities’ correspondence of June 9, 2015,5 where

they acknowledged, through counsel, that “subject to the manner in which the next phase of the

PBR regime unfolds, [the PBR Utilities] will be bound by the decisions rendered by the

Commission [in the IT Common Matters proceeding] with respect to the pricing of the services

they receive under their respective IT MSAs, if and when these matters are re-examined for the

ATCO PBR Utilities.” 6

The Commission considers that any impact to the next generation of

PBR plans and rates arising from the findings in the current proceeding may be considered in a

future PBR proceeding.

40. The Commission notes that the IT MSAs with Wipro are identical in all material respects

for AP, AE-T and the ATCO PBR Utilities. Furthermore, the pricing under all of the MSAs is

the same for each contracted service.

41. Upon consideration of the foregoing, the Commission will not direct ATCO Gas and

ATCO Electric-Distribution to participate in the IT Common Matters proceeding at this time.

However, parties are advised that it may elect to do so at a later date should circumstances

warrant.

Calgary request for cost eligibility

42. Calgary, as a municipality, is ineligible to claim recovery of costs incurred in connection

with its intervention in Commission rate proceedings. This ineligibility can be reversed at the

Commission’s discretion. There is no “bright-line” test for when an otherwise ineligible

intervener will be permitted cost recovery; requests are considered on a case by case basis.

43. In this case, Calgary claims that should be granted costs eligibility for a number of

reasons, ranging from its historical intervention in Commission proceedings involving the

assessment of IT-related evidence to a stated fear that the involved utilities may seek to use

Calgary’s ineligibility to claim costs as a means to throttle its intervention. The City of Calgary

also asserts that all Albertans will benefit from its intervention.

44. The ineligibility of municipalities to claim cost recovery is a long-standing feature of the

Commission’s intervener costs apparatus. The rationale for the exclusion of municipalities and

other enumerated entities from the Rule 022 cost recovery mechanism may be understood with

reference to Section 3 of the rule. This provision states that the Commission may award costs to

an intervener representing persons with a “substantial interest in the subject matter” of a

proceeding, but which “does not have the means to raise sufficient financial resources to enable

5 Exhibit 20514-X0033.

6 Exhibit 20514-X0033.


[it] to present its interests adequately.” Section 4 of the same rule lists several classes of

interveners that are presumptively ineligible to benefit from the application of Section 3.

45. Calgary has an interest in the outcome of the IT Common Matters Proceeding by virtue

of the fact that its citizens are charged Alberta Electric System Operator tolls which are based on

costs of all electric transmission utilities, including ATCO Electric-Transmission. However, it

also has the means to provide financial support for any intervention it may elect to mount on

behalf of its citizens. Calgary’s prior experience in Commission proceedings involving the

assessment of IT-related evidence does not change this fact, or otherwise militate in favour of

costs of its intervention ultimately being passed on to ratepayers, generally. The Commission

considers that the alleged consequence of other Albertan ratepayers receiving a “free ride” with

respect to the anticipated benefits of its intervention is something that the city must consider

when making a determination with respect to how much of its resources to commit to this matter.

46. The Commission is, likewise, unmoved by Calgary’s suggestion that the ability of ATCO

Pipelines and ATCO Electric-Transmission to recover any awarded costs through hearing cost

reserve accounts is supportive of its request; any such costs would, regardless of their accounting

treatment by these companies, be passed on to customers through rates. Finally, the Commission

is not persuaded by the suggestion that a refusal on its part to permit cost recovery will have the

effect of promoting abuses of process by the involved utilities. Calgary’s request for eligibility to

claim cost recovery is denied.

Procedural matters

47. In Bulletin 2015-11, the Commission directed ATCO Pipelines and ATCO Electric-

Transmission to provide the following information:

Any proposed placeholders for IT costs in the GRA or GTA. If not already done, these

placeholders must be broken out by operation and maintenance costs, capital

expenditures, revenue requirement impact, and forecast IT volumes for the applicable test

years.

48. The Commission was unable to find the requested evidence on placeholders after

reviewing the evidence filed on the record of Proceeding 20514. Further, responses to round 2

IRs on IT costs and Wipro-related information from Proceeding 3577 have yet to be filed. The

ATCO Utilities are directed to file this information on the record of Proceeding 20514, no later

than August 27, 2015, subject to any confidentiality undertaking provisions.

49. The Commission agrees that the potential number and complexity of the issues required

to be determined in this proceeding militate in favour of an oral hearing being included in the

overall process schedule. It further agrees that present logistical considerations indicate that the

hearing will likely occur in early 2016 on a date to be determined.


50. The Commission has, after consideration of the parties’ respective submissions,

established the remainder of the schedule as follows:

Process step Deadline date

Filing of placeholder information from Proceeding 20272

and 3577, and Proceeding 3577 Round 2 IR responses August 27, 2015

Information requests to the ATCO Utilities September 10, 2015

Information responses from the ATCO Utilities September 24, 2015

Intervener evidence October 8, 2015

Information requests to interveners October 22, 2015

Information responses from interveners November 5, 2015

Rebuttal evidence November 16, 2015

Oral hearing TBD

All submissions are due by 2 p.m.

51. If you have any questions, please contact the undersigned by email at

[email protected] or by telephone at 403-592-4412.

Sincerely yours,

Mark McJannet

Lead Application Officer

Attachment: Appendix A – Finalized issues list

mailto:[email protected]


Appendix A

Finalized issues list for the ATCO Utilities IT Common Matters Proceeding

1. Assessment of IT rates contained in the subject MSAs in comparison to fair market value

(FMV) and the least cost alternative:

(a) Statement of work and base rates

(b) Price validation - initial year price competitiveness

(c) Annual glide path

(d) Benchmarking and price adjustments

(e) Comparison to predecessor MSAs between utilities and ATCO I-Tek

(f) Impact of total contract value, risk allocation, and term on IT rates

(g) Identification of towers, service unit rates, and FMV of individual rates compared to

towers

(h) Any forecast volumes impact on rates

(i) Impact on rates and volumes of the Sale of I-Tek to Wipro

(j) Impact of global sourcing and pricing on IT rates

(k) Testing IT rates and pricing for new Wipro services added after 2015/2016

(l) Impact of proposed system and architecture changes to ATCO IT applications and

infrastructure on IT pricing

2. Sourcing strategy and review undertaken by the ATCO Utilities prior to execution of 10-year

MSAs with Wipro:

(a) Sourcing strategy

(b) Competitive bid process for the provision of IT services

(c) Criteria used to evaluate bidders for the provision of IT services

(d) Business case and consideration of alternatives

(e) Conduct of MSA negotiations with Wipro

3. Structure and operation of MSAs:

(a) Benchmark provisions, reopener provisions, penalty and termination provisions

(b) Impact of IT volume increases or decreases on IT rates

(c) Cost of living adjustments for labour

(d) Unit rates for work, projects, or statement of work above forecast

(e) Pricing and term comparison to industry standard or trend for IT MSAs

(f) IT governance of services provided by Wipro

(g) Specific IT towers being utilized by each utility

(h) Specific contractual clauses related to service level credits, change orders

(i) Ownership of IT intellectual property and licensing rights

(j) Other provisions contained within the MSAs that arise during the course of the

proceeding

(k) Impact of total contract value and term on MSA terms and conditions

November 19, 2015

To: Parties currently registered on Proceeding 20514

The ATCO Utilities (ATCO Gas and Pipelines Ltd. and ATCO Electric Ltd.)

Information Technology Common Matters Proceeding

Proceeding 20514

The ATCO Utilities’ proposal to suspend the current process schedule in order to complete

benchmark report

1. In letter dated October 23, 2015, the ATCO Utilities proposed to suspend the current

process schedule for six months in order to complete a full benchmark report in respect of the

Wipro master services agreements (MSAs). The companies explained that this work was being

undertaken in consideration of an Alberta Utilities Commission-expressed preference for the

information resulting from the rigour inherent in a benchmark over a price review.1

2. In a letter dated October 26, 2015, the Commission requested parties to provide

comments on the ATCO Utilities’ proposal.

3. On November 16, 2015, the Commission received submissions from the Office of the

Utilities Consumer Advocate (UCA) and The City of Calgary opposing the suspension of the

current process schedule until a benchmark report is completed.

4. In a letter dated November 18, 2015, the ATCO Utilities replied to the submissions of the

UCA and Calgary.

5. The Commission has authorized the writer to communicate the following on its behalf.

6. The UCA submitted that the ATCO Utilities’ proposal now is to create new evidence to

demonstrate the prudence of steps taken 14 months ago. In the UCA’s view, this will result in

considerable delay; based on the ATCO Utilities’ proposed timeline, this proceeding will restart

in mid-2016, around the same time that filings for the 2017-2018 test years would normally be

expected. The UCA also noted that the ATCO Utilities failed to mention the benchmark in

response to their initial opportunity to file new material (five months ago), and failed to explain

1Decision 2014-169: ATCO Utilities (ATCO Gas, ATCO Pipelines and ATCO Electric Ltd.) 2010 Evergreen

Proceeding for Provision of Information Technology and Customer Care and Billing Services Post 2009 (2010

Evergreen Application), Proceeding 240, Application 1605338-1, June 13, 2014, paragraphs 439-443. Decision

2014-169 (Errata) issued February 6, 2015.

Appendix 2

Alberta Utilities Commission November 19, 2015 Page 2 of 3

why the request comes only after the completion of nearly three rounds of information requests

and a significant motion and issues list process.

7. While the UCA recognizes that denying an applicant the opportunity to supplement its

application would be an unusual step, the current circumstances justify that response. In its view,

there is no reason to grant the ATCO Utilities this significant delay when the ATCO Utilities

have presented their case from the outset based on the existing KPMG market assessment. As an

alternative, and only if the Commission considers further benchmarking process to have value

(which the UCA strongly denies), the UCA proposes that an independent Commission-directed

study should be established, with the terms of engagement available for all parties’ comment.

8. Calgary’s submissions expressing its opposition to the ATCO Utilities proposal may be

summarized as follows:

ATCO’s actions are contrary to common practice and the Commission’s rules for

documentary filings in an established proceeding

ATCO’s actions are an abuse of process

if allowed by the Commission, ATCO’s filing of benchmark evidence will financially

impair intervenors and limit their ability to prosecute the case in a reasonable and fair

way

ATCO’s proposal to use benchmarking evidence is offside Commission directions set out

Decision 2014-169 (Errata) concern in the future use of that type of evidence

ATCO has already filed voluminous reports and evidence in this proceeding directed at

the issues the Commission has confirmed to be tested, and no further evidence is

necessary

no credible benchmark analysis can be conducted on the Wipro MSAs due to the absence

of a valid comparator market for deals with the commercial characteristics of the Wipro

MSAs

all of the Commission’s prior concerns with the use of benchmark evidence will be

repeated if ATCO is allowed to file another benchmark report in this proceeding

a benchmark analysis will provide no assistance to the Commission with respect to the

determination of prudence of ATCO’s sourcing decisions2

9. Calgary also submitted that its costs and expenses of testing the already filed evidence on

proper sourcing and expenditures for information technology (IT) costs are substantial. Calgary

does not expect it can possibly complete a full and fair testing of the ATCO Utilities’ evidence if

the ATCO Utilities are allowed to file a benchmark report, unless the Commission is prepared to

order the ATCO Utilities to pay Calgary’s entire costs for this proceeding. Such powers are

available to the Commission under Rule 0223 and under Section 21(1) of the Alberta Utilities

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

10. The Commission is mindful of the concerns raised by both the UCA and Calgary in their

November 16, 2015 submissions, and is also cognizant of its previous findings concerning the

2 Exhibit 20514-X0112. 3 Rule 022: Rules on Costs in Utility Rate Proceedings.

Alberta Utilities Commission November 19, 2015 Page 3 of 3

potential limitations of such evidence. However, the applicants are entitled to file supplemental

evidence related to their application, consistent with AUC Bulletin 2015-11,4 which commenced

Proceeding 20514. In Bulletin 2015-11, the Commission stated that “the ATCO Utilities will be

provided with an opportunity to file any other supplemental information that may be required for

the determination of the ATCO Utilities IT common matters proceeding.” Accordingly, the

Commission suspends the current process schedule to afford the ATCO Utilities time to

complete a benchmark report of the IT MSAs. The ATCO Utilities are directed to provide a

status update of the benchmark report by April 21, 2016.

11. The Commission has previously ruled on the issue of Calgary’s cost eligibility in this

proceeding.5 The granting of the applicants’ request to file supplementary evidence does not

impact the rationale for its determination in this regard.

12. If you have any questions please contact the undersigned by email at

[email protected] or by telephone at 403-592-4412.

Sincerely,

Mark McJannet

Lead Application Officer

4 Bulletin 2015-11, Initiating the ATCO Utilities information technology (IT) common matters proceeding to

examine IT costs related to the master services agreements (MSAs) between the ATCO Utilities and Wipro

Solutions Canada Limited (Wipro), June 4, 2015. 5 Exhibit 20514-X0056.

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