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OEB order denying utility rate increase restored; reasons read as a whole showed no improper use of hindsight.
The Ontario Energy Board (OEB) appealed a Divisional Court decision that set aside its order denying Enbridge Gas Distribution Inc. a rate increase for certain transportation costs.
The Divisional Court had found that the OEB erred in law by improperly using hindsight in its 'prudence' review of Enbridge's contracts.
The Court of Appeal allowed the appeal and restored the OEB's order, holding that when read as a whole, the OEB's reasons did not demonstrate a misuse of hindsight or legal error.
The Court also confirmed the OEB had standing to appeal the Divisional Court's decision.
Board decision quashed for improperly using hindsight to evaluate whether utility costs were prudently incurred.
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.
