Enbridge Gas Distribution Inc. appealed a decision of the Ontario Energy Board that disallowed the recovery of $11 million in costs related to new pipeline routes.
The Board had found that Enbridge did not act prudently in incurring the costs, but Enbridge argued the Board erred by using hindsight in its prudence analysis.
The Divisional Court allowed the appeal, finding that while hindsight can be used to rebut the presumption of prudence, the Board committed an error of law by considering hindsight factors in the actual prudence analysis.
The decision was quashed and remitted to a differently constituted tribunal.
