Rogers Communications Canada Inc. v. The Ontario Energy Board, 2017 ONSC 3959

CITATION: Rogers Communications Canada Inc. v. The Ontario Energy Board, 2017 ONSC 3959

DIVISIONAL COURT FILE NO.: DC-16-439

DATE: 20170704

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KITELEY, NIGHTINGALE AND MATHESON JJ.

BETWEEN:

ROGERS COMMUNICATIONS CANADA INC., COGECO CABLE INC., COGEGO CABLE CANADA LP, QUEBECOR MEDIA INC., SHAW COMMUNICATIONS CANADA INC., BRAGG COMMUNICATIONS INC., PACKET-TEL CORP., NIAGARA REGIONAL BROADBAND NETWORK, TBAYTEL, INDEPENDENT COMMUNICATIONS PROVIDERS ASSOCIATION and CANADIAN CABLE SYSTEMS ALLIANCE INC.

Appellants

– and –

THE ONTARIO ENERGY BOARD and HYDRO ONE NETWORKS INC.

Respondents

Timothy Pinos, for the Appellants

Andrea Gonsalves and Pam Hrick , for the Respondent Ontario Energy Board

D.H. Rogers and Anita M. Varjacic, for the Respondent Hydro One Networks Inc.

HEARD in Toronto: April 4, 2017

Nightingale J.

[1] The Appellants (the “Carriers”) bring this appeal pursuant to Section 33 of the Ontario Energy Board Act upon a question of law or jurisdiction. They ask that the August 4, 2016 final order of Ontario Energy Board (the “OEB”) be quashed and for other relief.

[2] That order increased the annual pole attachment charge that Hydro One Networks Inc. (“Hydro One”) was allowed to charge the Carriers for using its poles for their own service lines to $41.28 per pole commencing January 1, 2015.

[3] The OEB had previously, in a March 12, 2015 decision, approved Hydro One’s request to increase the annual pole attachment charge from $22.35 per pole to $37.05 for three years commencing January 1, 2015. That decision was based on the evidence of Hydro One’s projected 2012 costs for the usage and maintenance of its poles.

[4] The Carriers had not received notice of this aspect of the Hydro One’s rate application and hence did not participate in the hearing that gave rise to the March 12, 2015 decision. They therefore challenged the decision on the increase of the pole attachment charge by seeking and obtaining leave to bring a review and vary motion.

[5] The OEB heard the review and vary motion and, by its final order of August 4, 2016, replaced the approved rate of $37.05 from its March 12, 2015 decision with the higher rate of $41.28. That final order was based in part on Hydro One’s more up to date costs for the usage and maintenance of its poles that formed part of the evidence on the review and vary motion.

Position of the Carriers

[6] The Carriers identified the main issue on this appeal as the process leading up to the OEB’s decision of August 4, 2016. They state that the OEB improperly expanded the scope of the Carriers’ review and variation motion by allowing the introduction of new issues and fresh evidence by Hydro One that were not part of its original motion. In doing so, the Carriers’ submitted that the OEB erred in law, exceeded its jurisdiction and conducted the Carriers’ motion in a manner that was fundamentally unfair to them. The Carriers submitted that they had a legitimate expectation that their motion would be limited to a reconsideration of the matters the Carriers had placed before the OEB. Instead, they submit, the OEB chose to instigate a de novo inquiry that completely abandoned the evidence and findings from the prior proceeding.

[7] The Carriers also take the position that the OEB erred in law when it refused to order production of the pole sharing agreement between Hydro One and Bell Canada, which the Carriers state was relevant evidence on their review and vary motion.

Position of the OEB and Hydro One

[8] The OEB submitted that the OEB committed no error in law when it granted and conducted a new hearing de novo as requested by the Carriers with respect to its initial decision of March 2015, which had never been made final. Because of the new hearing, it was entitled to consider all relevant evidence from all the parties including the supplementary evidence of Hydro One.

[9] The OEB submitted that it also considered the relevancy issue of the Bell-Hydro One pole sharing agreement and ordered that the relevant information be provided from it but not the actual agreement.

[10] The OEB submitted that it committed no error of law or jurisdiction.

[11] Hydro One supported the position of the OEB for essentially the same reasons.

Factual background

[12] On March 7, 2005, the OEB rendered a decision that set a province-wide pole attachment charge at $22.35 per pole for all electrical utilities in Ontario, including Hydro One (the “2005 order”). The 2005 order was made in response to an application by the Canadian Cable Television Association under Section 74 of Ontario Energy Board Act, 1998, S.O. 1998, c. 15 (the “OEB Act”).

[13] The OEB set this uniform annual pole attachment charge of $22.35 per pole as a condition of licence for each electrical utility in Ontario. The OEB expressly left open the ability of an electrical utility to apply to the OEB under Section 74 of the OEB Act in order to amend its conditions of licence to vary that uniform rate.

[14] Since the date of the 2005 order, only two other applications to depart from the rate established in 2005 have been determined including one where the OEB approved the annual rate increase for Hydro Ottawa to $53 per attacher per pole, which decision was upheld in Rogers Communications Partnership v. Ontario Energy Board, 2016 ONSC 7810 (Div. Ct.) (“the Hydro Ottawa decision”).

[15] On December 19, 2013, Hydro One filed its general rate application under Section 78 of the OEB Act, seeking the OEB’s approval of its proposed rates for the distribution of electricity for the years 2015 to 2019. Hydro One’s summary of application and notice of hearing did not make specific reference to the proposed increase in the pole attachment rate for those same years and its voluminous application materials contained one page of evidence to support its proposed increase in the pole attachment charge from $22.35 to $37.05 in 2015, $37.42 in 2016, $37.80 in 2017, $38.19 in 2018 and $38.56 in 2019.

[16] The Carriers did not have notice that this proposed increase was being considered and did not participate in the general rate application hearing. Other intervenors participated in the general rate application but none filed any material or submissions to oppose Hydro One’s request to increase the pole attachment charge to $37.05 for 2015 and higher rates in later years.

[17] On March 12, 2015, the OEB issued its decision approving Hydro One’s electricity distribution rates but only for three years, 2015 to 2017, including the pole attachment rate which it approved at $37.05.

[18] After the March 2015 decision but prior to the OEB issuing a final rate order, some of the Carriers began to receive notices of the new pole attachment charge from Hydro One. In April 2015, several Carriers wrote to the OEB requesting leave to bring a motion to review and vary the March 2015 decision but only with respect to the pole attachment charge rate.

[19] In light of the Carriers’ letters, on April 17, 2015 the OEB decided it would not approve the pole attachment rate as final until the Carriers’ challenge to the March 2015 decision was resolved.

[20] On April 23, 2015, the OEB issued an order making Hydro One’s electricity distribution rates final “with the exception of the specified pole attachment rate in issue.” It ordered that the existing pole attachment rate of $22.35 established by its 2005 decision was continued but on an interim basis only pending a resolution of the Carriers’ challenge to the March 2015 decision. Hydro One’s proposed pole attachment rate of $37.05 accordingly was not approved or included in that final rate order.

[21] In May 2015, the Carriers grouped together and sought leave to bring a motion to review and vary. Among other things, they argued that the OEB did not have jurisdiction to set the pole attachment charge under Section 78 of the OEB Act as part of Hydro One’s general rate application but could only do so under Section 74 as an amendment to Hydro One’s conditions of licence. That issue was raised by the Carriers in their factum on this appeal but was not pursued in their oral submissions.

[22] The OEB granted leave to the Carriers on June 30, 2015 to bring their motion to review and vary its March 2015 decision but dismissed the Carriers’ jurisdictional argument. The OEB expressly stated that it would fix the final pole attachment rate through the hearing of that motion.

[23] In accordance with that OEB June 30, 2015 decision, the Carriers filed a notice of motion on July 20, 2015 requesting among other things:

a. an order setting aside the portion of the OEB’s March 2015 decision that approved an increase in Hydro One’s pole attachment rate;

b. an order that a hearing de novo be held by the OEB in respect of Hydro One’s application to increase the pole attachment rate;

c. a procedural order or orders setting timelines and notice requirements for Hydro One to file additional evidence, for the Carriers, Board staff and intervenors to file evidence and for an oral hearing.

[24] In their notice of motion, the Carriers, regarding the nature of oral hearing they requested, submitted that a full hearing de novo with respect to the pole attachment rate was appropriate given their lack of notice, the critical public interest considerations and that the public interest required a full hearing de novo to allow a considered decision to be made with respect to the increase sought on a proper record.

[25] The OEB, through its procedural orders of July 29 and October 26, 2015, stated that the motion would be a hearing on Hydro One’s proposed increase to the pole attachment rate and whether that increase was just and reasonable. Its subsequent procedural orders of December 16, 2015, January 11 and March 8, 2016 confirm that the purpose of the motion was to fix the final pole attachment rate for Hydro One, which, until the disposition of the motion, remained at the interim level at $22.35 per pole per year.

[26] The OEB procedural order dated July 29, 2015 permitted the Carriers to request additional information from Hydro One, beyond the record that was before the OEB on the general rate application. The Carriers submitted interrogatories to Hydro One dated August 21, 2015 seeking further details about its evidence supporting the $37.05 pole attachment charge granted in the March 2015 decision.

[27] After receiving answers from Hydro One, the Carriers filed their evidence with the OEB on November 23, 2015. That evidence indicated that with the exception of the calculations of full maintenance costs, the Carriers were of the view that Hydro One had calculated the pole attachment rate in accordance with the OEB approved methodology and did not intend to challenge these other cost inputs and factors submitted by Hydro One in its evidence. They only challenged Hydro One’s inclusion of vegetation management costs.

[28] The Carriers submitted further interrogatories to the OEB on December 11, 2015 stating:

“The data required to complete the requested calculation is reasonably within Hydro One’s possession. Hydro One is capable of completing the calculation itself. The Carriers submit, if Hydro One desires this calculation be incorporated into the evidentiary record in this proceeding, it should supplement its own evidence in chief or submit reply evidence.”

[29] Hydro One then submitted evidence to the OEB on December 22, 2015 indicating that it had updated its actual costs and provided supplementary evidence in advance of the Technical Conference scheduled for January 12, 2016 “in order to be helpful to the proceeding participants.” The evidence provided by Hydro One also responded to the Carriers above-mentioned request to the OEB on December 11, 2015.

[30] In that evidence, Hydro One also corrected two errors in its previously filed evidence on the pole attachment rate; first, the use of an incorrect pole count and second, the incorrect determination of the annual depreciation amount. Its evidence also updated the calculation of the pole attachment rate based on Hydro One’s 2012 actual costs, 2014 actual costs and 2015 forecast costs.

[31] What is significant is that Hydro One had in its original 2013 application to the OEB used its projected 2012 costs in calculating its proposed $37.05 pole attachment rate eventually granted by the OEB in its March 12, 2015 decision.

[32] Based on this now corrected and updated information, Hydro One estimated that the annual appropriate pole attachment rate should be between $43.04 and $47.02.

[33] The Carriers sought to have the OEB exclude this supplementary evidence by letter of January 7, 2016. The OEB denied that request by its procedural order of January 11, 2016. The OEB reiterated that the purpose of the motion was to fix the final pole attachment rate and that it appeared to the OEB that this supplementary evidence filed by Hydro One may be relevant in so far as it may assist the OEB in setting the final pole attachment rate at a level that was just and reasonable. The OEB confirmed that the Carriers and other parties would have the opportunity to question Hydro One about the supplementary evidence at the Technical Conference.

[34] At the Technical Conference on January 12, 2016, the Carriers had the opportunity to and in fact extensively questioned Hydro One’s witnesses about this supplementary evidence.

[35] Hydro One had earlier stated, on September 8, 2015, in response to interrogatories of one of the Carriers, that although it had originally assumed 2.5 attachers in calculating the proposed rate of $37.05, in fact there were roughly 1.3 attachers per pole increasing their costs, which they reiterated in evidence at the Technical Conference on January 12, 2016.

[36] On January 16, 2016, the Carriers submitted that the only issue now being raised on its motion was Hydro One’s treatment of vegetation management costs in calculating its proposed pole attachment rate. They objected to certain intervenors other than Hydro One raising additional issues at the Technical Conference, specifically that the pole attachment rates should be calculated using 2015 forecast costs and that the pole attachment rate should be calculated using an average of 1.3 attacher per pole. They submitted that the OEB’s consideration of this would violate the principle of res judicata and would be an abuse of process as the intervenors had not raised these issues at the initial proceeding leading up to the March 2015 decision. As set out in their letter of January 26, 2016, the Carriers objected to the Hydro One updated evidence and to new issues being included within the scope of their review and vary motion beyond the vegetation issue raised by the Carriers.

[37] The OEB rejected the Carriers’ request for an order that cross-examination, argument or discussion about these additional submissions be outside the scope of their motion. In its procedural order of March 8, 2016, the OEB reiterated the purpose of this proceeding was to fix the final pole attachment rate at a level that was just and reasonable.

[38] The OEB, on February 25, 2016, referred the parties to the Hydro Ottawa decision it granted earlier wherein it determined that it was appropriate for the OEB to calculate the pole attachment rate on the basis of the actual number of attachers (not the 2.5 used in its 2005 decision) and that the rate be based on actual historical costs. It also ordered that the motion of the Carriers would proceed by way of a written hearing, which was permitted under its rules.

[39] The Carriers filed a motion of March 18, 2016 requesting an oral hearing, which was deferred by the OEB pending completion of the Carriers’ further written interrogatories to Hydro One which the OEB allowed to ensure the record was sufficient to enable the calculation of Hydro One’s pole attachment charge in accordance with the OEB’s applicable findings in the Hydro Ottawa decision.

[40] The Carriers also requested the OEB to order production from Hydro One of its reciprocal pole sharing agreement with Bell Canada, in which Hydro One and Bell had agreed to build and share poles at no cost to one another. The OEB by its procedural order of March 31, 2016 declined to order production of the actual agreement because the details of those reciprocal agreements were not relevant to the proceeding in terms of establishing the appropriate pole attachment rate. It did permit further interrogatories to Hydro One relating to the number of poles and attachers.

[41] In addition, the OEB, to ensure it had the information it needed to approve the final pole attachment rate at a level that was just and reasonable, directed OEB’s staff to ask Hydro One by way of interrogatory: a) whether any of the costs being claimed by Hydro One were being recovered elsewhere such as through reciprocal arrangements with Bell or other parties; and b) how the Bell attachments and any other attachments associated with reciprocal arrangements factored into the determination of the number of attachers per pole.

[42] Pursuant to procedural order of April 7, 2016, OEB staff then asked Hydro One to calculate the pole attachment rate using, among other things, its actual historical cost data for 2014 and 2015 and the actual number of poles and attachers per pole. This was to be in a manner Hydro One considered to be consistent with the Hydro Ottawa decision and Hydro One was to provide any additional information it felt would be required by the OEB to make findings consistent with those in the Hydro Ottawa decision.

[43] Hydro One responded to the OEB staff on April 15, 2016 providing a variety of calculations based on its 2014 and 2015 data as well as calculations including and excluding vegetation management costs. These calculations produced proposed pole attachment rates ranging from $41.56 to $74.24.

[44] The Carriers then submitted a large number of additional interrogatories to Hydro One regarding that evidence and received three separate responses in April 2016.

[45] On April 19, 2016, the Carriers wrote to the OEB requesting that the proceeding be adjourned pending the appeal of the Hydro Ottawa decision to the Divisional Court or alternatively, that the appeal be heard orally rather than in writing. The Carriers also notified the OEB that they would bring a motion seeking directions in respect of alleged efficiencies in Hydro One’s answers to interrogatories.

[46] By procedural order of May 4, 2016, the OEB agreed to hear the Carriers’ motion regarding those deficiencies and interrogatory responses orally. It rejected the Carriers request for an adjournment pending the appeal of the Hydro Ottawa decision consistent with its policy and practices. It declined to order an oral hearing on the merits of the Carriers’ motion stating that it would have all the evidence it needed to make a decision and the only thing left would be argument, which it preferred to receive in writing.

[47] At the hearing of the Carriers’ motion seeking supplementary responses to interrogatories, on May 19, 2016, Hydro One consented to provide answers or supplementary responses to some interrogatories of the Carriers. The Carriers and Hydro One reached an agreement requiring Hydro One to provide additional answers to questions as well as an overview discussion of the general structure of the agreement between Hydro One and Bell Canada regarding its use of Hydro One’s poles. The Carriers stated to the OEB that this resolution would lead to virtually everything that the Carriers would like to see in the record coming out of a combination of the answers and a few cross-examination follow-up questions. The OEB then granted the Carriers a right of reply to the closing submissions of the intervenors to the extent they raised issues not raised by Hydro One.

[48] In its final argument to the OEB dated May 27, 2016, Hydro One proposed that the appropriate pole attachment rate should be $70.04 based on its actual costs for actual pole counts and an average number of attachers as at the end of 2014, which was the most recent year for which information was available prior to the rate period in issue. The figure also included vegetation management costs. Some intervenors suggested a slightly higher rate.

[49] The Carriers filed their final argument on June 10, 2016 and June 15, 2016. The Carriers maintained their objection to the new issues and new evidence, but submitted that if the OEB proceeded, it should use the 2012 data without including the vegetation management costs, resulting in the appropriate pole attachment rate of $28.51.

OEB August 4, 2016 Decision

[50] In its August 4, 2016 decision, the OEB approved a final pole attachment rate of $41.28 effective January 1, 2015, the same day the other rates and charges approved in the OEB’s final April 23, 2016 decision came into effect. The OEB decided this rate would remain in effect with no annual inflation adjustment.

[51] The OEB accepted the Carriers’ position that it was not appropriate to include the vegetation management cost in the calculation of Hydro One’s pole attachment rate.

[52] The rate set by the OEB was slightly more than the $37.05 rate Hydro One initially applied for in 2013 and the OEB approved in its March 2015 decision.

[53] Regarding the scope of the proceedings, the OEB’s decision was that at the Carriers’ request in its original notice of motion, this motion provided an opportunity for a new hearing on the matter with the objective being to establish a just and reasonable pole attachment charge.

[54] The OEB agreed that the appropriate approach would be, in essence, to restart the hearing on the single issue of the pole attachment charge, this time with the Carriers as participants.

[55] The OEB rejected the Carriers’ argument that the proceeding offended the principle of res judicata or that allowing Hydro One and the intervenors to revisit the pole attachment rate afresh amounted to an abuse of process. It held that this was a whole new hearing on the charge and that just because the Carriers initiated the proceeding did not mean that they alone could determine its scope. It also found that it would have defeated the purpose of setting a just and reasonable rate to exclude any evidence and arguments that Hydro One or the intervenors had not presented the first time around when the pole attachment charge was not even a contested issue.

[56] The OEB then referred to its Hydro Ottawa decision that the pole attachment charge should be calculated based on historical rather than forecast costs as historical costs were used in the original 2005 decision. It determined that it was appropriate to use Hydro One’s 2014 actual costs in establishing the final pole attachment rate commencing January 1, 2015 stating:

“In this case, the parties seem to have agreed that historical costs should be used, but disagreed about which ones. Every party that made submissions, except the Carriers, urged the OEB to use 2014 costs being the most recent year for which information is available prior to the rate period at issue. The Carriers argue that 2012 costs should be used, because Hydro One used 2012 costs in its initial rate application.

Not only is 2014 the most recent year for which data is available prior to the rate period, the 2014 data was tested in the interrogatory process and the technical conference. This being a hearing de novo on the pole attachment charge, Hydro One was not bound to use 2012 costs simply because those were the costs used in the initial rate application.”

[57] The OEB also used the actual number of pole attachers for Hydro One which was found to be 1.3 as this was the accurate local information available. The OEB did not consider the parties to be bound by the provincial average of 2.5 attachers used in its original 2005 decision.

[58] The OEB found that Hydro One’s reciprocal arrangement with Bell Canada which used Hydro One’s poles for its lines had no impact on the pole attachment rate given Hydro One’s evidence that no costs were being claimed in this proceeding that were being recovered elsewhere.

[59] The OEB in its decision also directed Hydro One to establish two deferral accounts using the interim pole attachment rate of $22.35 and the approved rate of $41.28 and the revenue difference between the pole attachment rate of $37.05 in 2015 and the final approved rate of $41.28. This would ensure Hydro One’s distribution customers received the benefit of the final pole attachment charge during the period covered by its 2015 decision on rates.

Analysis

[60] The two issues raised on this appeal are as follows:

(1) Was the OEB hearing of the Carriers’ motion to review and vary conducted in a procedurally fair manner?

(2) Did the OEB err in refusing to order production of the Hydro One–Bell Canada Agreement?

[61] This appeal is brought by the Carriers pursuant to Section 33 of the OEB Act, which limits appeals to questions of law or jurisdiction.

[62] The parties agree that the standard of review on issues of procedural fairness, i.e. whether the OEB’s procedures violated established principles of natural justice and adjudicative fairness, is correctness: Mission Institution v. Khela, 2014 SCC 24, at para.79; Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 50; Rogers Communications Partnership v. Ontario Energy Board, 2016 ONSC 7810.

[63] Considerable deference is owed to procedural rulings made by a tribunal with the authority to control its own process, including the OEB: Council of Canadians with Disabilities v. Via Rail Inc., [2007] 1 S.C.R. 650, 2007 SCC 15, at para. 231.

[64] For questions of law arising out of the OEB’s home statute, engaging its expertise and policy considerations, the standard of review on appeal is reasonableness. Reasonableness in this context refers to justification, transparency and intelligibility and whether the OEB’s decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. Ontario Energy Board v. Ontario Power Generation Inc., 2015 SCC 44, at para. 74; Dunsmuir, at para. 47.

(1) Was the OEB Hearing Conducted in a Procedurally Fair Manner?

[65] The Carriers raise two issues about the fairness of the process that the OEB employed in the motion to review and vary: the expansion of the permitted evidence to include later data and the consideration of new positions raised by others, both issues allowing for the imposition a higher rate.

[66] In my view, the hearing was conducted in a procedurally fair manner with respect to the Carriers for the following reasons.

[67] First, the OEB’s decision of March 12, 2015 was not a final rate order. Prior to the OEB issuing its final rate order, the Carriers wrote to the OEB requesting leave to bring a motion to review and vary the March 2015 decision with respect to the pole attachment rate. As a result, the OEB did not approve the rate arising from that decision as final.

[68] Because of the Carriers’ objections, the OEB in its April 17, 2015 decision held that it would not approve that March 2015 decision as final until the Carriers’ challenge to that decision was resolved. Although the OEB issued an April 23, 2015 final rate order for Hydro One’s electricity distribution, it specifically excluded the pole attachment rate and simply continued the 2005 decision of $22.35 on an interim basis pending the resolution of the Carriers’ challenge.

[69] Accordingly, Hydro One’s proposed pole attachment rate of $37.05 was not approved or included in that OEB’s final rate order of April 23, 2015.

[70] Second, on June 30, 2015, the OEB granted leave to the Carriers to bring their review and vary motion as they were not parties to the original application.

[71] Third, the Carriers specifically requested in their notice of motion of July 20, 2015 that the OEB’s March 2015 decision approving an increase in Hydro One’s pole attachment rate be set aside. Most significantly, it was the Carriers in that notice of motion that requested a hearing de novo to be held by the OEB in respect of Hydro One’s application to increase the pole attachment rate. The Carriers also asked for procedural orders setting timelines and notice requirements for Hydro One to file additional evidence and for the Carriers, board staff and intervenors to file evidence and for an oral hearing.

[72] The Carriers’ notice of motion specifically requested a full hearing de novo with respect to that March 2015 decision “as the public interest required it”.

[73] Prior to the actual hearing of the motion, the OEB stated in its several procedural orders from July 29, 2015 to March 8, 2016 that the purpose of the motion would be to fix a final pole attachment rate for Hydro One. For example, its procedural orders of July 29 and October 26, 2015 indicated that the motion would be a hearing on Hydro One’s proposed increase to the pole attachment rate and whether it was just and reasonable. By its subsequent procedural orders of December 16, 2015, January 11, 2016 and March 8, 2016, the OEB stated clearly that the purpose of this motion was to fix the final pole attachment rate which until the disposition of the motion remained at the interim level of $22.35 per pole per year.

[74] In my view, the Carriers could not assume that the final pole attachment rate to be finally determined by the OEB could be no higher than $37.05 per pole annually or limited to the issues that they raised. They specifically asked for a new hearing in their notice of motion and specifically contemplated and requested procedural orders from the OEB allowing Hydro One to introduce new evidence during the hearing. This new evidence obviously would be evidence that was and could not have been introduced at the original hearing as it was not available or known at the time. The OEB was not restricted to simply reconsidering only issues raised by the Carriers regarding its March 2015 decision, but was entitled to proceed with a new inquiry as it did as the Carriers had asked. The OEB provided the Carriers with a full opportunity to challenge that evidence, present their own evidence and make submissions before it rendered its final order. The decisions of Francella v. Canada, 2003 FCA 441 and Bancarz v. Canada (Minister of Transport), 2007 FC 451 are distinguishable on that basis.

[75] The new hearing was a fresh consideration for all of the parties in order to determine the final pole attachment rate. In effect, all the parties were placed in the same position they would have been in had the Carriers participated in the original hearing.

[76] Determining this rate was at the core of the OEB’s expertise. It was not limited to the positions of the parties. It was required to decide what was just and reasonable amount on the evidence before it. It could decide on a lower amount or a higher amount, or use the same amount, if the evidence before it on the hearing de novo justified the rate as just and reasonable.

[77] The OEB recognized in its procedural order of December 16, 2015 that revenues from the pole attachment rate were a minor offset in the revenue requirement that underlines the rates set by Hydro One for electricity customers. It was setting a just and reasonable pole attachment rate as required under Section 78(3) of the OEB Act to determine what portion of their costs were properly for the account of the Carriers rather than its electricity customers. It was simply and reasonably using the latest available actual cost data to set the applicable pole attachment rate, which was within its jurisdiction and expertise.

[78] The OEB’s factual determinations are entitled to a high degree of deference and are outside the scope of any appeal to this court under Section 33 of the OEB Act.

[79] Fourth, I do not agree with the position of the Carriers that the OEB acting on Hydro One’s request to increase the pole attachment charge from the original $37.05 in the March 2015 decision to $41.28 in its final decision effective January 1, 2015 constitutes a violation of the principles of res judicata resulting in an abuse of process.

[80] The Carriers were not parties to the original March 2015 decision and accordingly the parties were not the same. Moreover, the March 2015 decision was not a final decision: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. Res judicata does not apply and there was no abuse of process.

[81] Lastly, there was no procedural unfairness or lack of notice to the Carriers regarding the new evidence Hydro One presented regarding its actual costs for the usage of its poles at the new hearing.

[82] It must be remembered that when Hydro One filed its original application in December 2013 to increase the pole attachment rates commencing 2015, it only had available to it information with respect to its projected 2012 costs as they had not been finalized at the time of its filing that application.

[83] By the hearing of the Carriers’ motion in mid-2016, two and a half years later, Hydro One had the updated details of its actual costs for the usage of its poles and how many services actually used each pole, which it did not have originally.

[84] This information regarding the usage per pole of 1.3 as compared to the usage of 2.5 used for the OEB’s 2005 decision was provided to the Carriers and the OEB in September 2015 in response to the interrogatories raised by the Carriers.

[85] In addition, the Carriers’ further interrogatories of December 11, 2015 regarding Hydro One’s costs resulted in Hydro One providing that evidence on December 22, 2015 including its actual 2014 costs incurred rather than simply its 2012 projected costs.

[86] The OEB, in its procedural decision of January 11, 2016, decided that that information may be relevant to its final decision of what were just and reasonable rates applicable for 2015 forward and allowed Hydro One to file that evidence. At the same time, it granted the Carriers the right to file responding evidence and also granted the Carriers permission to conduct further interrogatories of Hydro One on that evidence which were then answered by Hydro One and considered by the OEB.

[87] The OEB’s decision to consider all the issues raised regarding the pole attachment rate and to permit and rely on the updated evidence, in these circumstances, did not create procedural unfairness to the Carriers nor was it an error of law.

(2) OEB’s Refusal to Order Production of the Hydro One–Bell Canada Agreement

[88] The Carriers brought a motion within their review and vary motion, seeking an order to require Hydro One to disclose its pole sharing agreement with Bell Canada. The OEB declined to do so. However, it required interrogatories through which Hydro One provided the essential information about that agreement on whether any of its costs were recovered from Bell or whether the Bell attachments were factored into its costs.

[89] Hydro One provided its answer to the OEB that it did not charge Bell the regulated pole attachment charge and, in return, Bell did not charge it for Hydro One’s use of its poles. Hydro One’s evidence was that the overall structure of the Bell agreement had no impact on its costs. The OEB also permitted further questioning on that evidence by the Carriers.

[90] The OEB in requiring Hydro One to disclose the evidence that it did regarding the Bell pole sharing agreement without requiring production of the actual agreement was within its procedural jurisdiction and was not acting unfairly or taking an unreasonable position affecting the Carriers. The OEB by doing so did not prevent the Carriers from accessing relevant evidence and presenting a material aspect of their case thereby breaching the rules of procedural fairness.

[91] The Carriers have not established that having been provided with relevant information regarding that agreement but not the agreement itself constituted a breach of natural justice permitting judicial intervention: Liquor Control Board of Ontario v. Lifford Wine Agencies Limited (2005), 2005 25179 (ON CA), 76 O.R. (3d) 401, [2005] O.J. No. 3042.

[92] The OEB made no error of law or jurisdiction in its order arising from the Carriers’ request for production of the agreement.

Conclusion

[93] The appeal is accordingly dismissed. The Appellants shall pay the Respondent Hydro One’s costs, fixed at the agreed upon amount of $15,000. No costs are sought by or ordered in favour of the Respondent Board.

Nightingale J.

I agree

Kiteley J.

I agree

Matheson J.

Released: July 04, 2017.

CITATION: Rogers Communications Canada Inc. v. The Ontario Energy Board, 2017 ONSC 3959

DIVISIONAL COURT FILE NO.: DC-16-439

DATE: 20170704

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KITELEY, NIGHTINGALE AND MATHESON JJ.

BETWEEN:

ROGERS COMMUNICATIONS CANADA INC., COGECO CABLE INC., COGEGO CABLE CANADA LP, QUEBECOR MEDIA INC., SHAW COMMUNICATIONS CANADA INC., BRAGG COMMUNICATIONS INC., PACKET-TEL CORP., NIAGARA REGIONAL BROADBAND NETWORK, TBAYTEL, INDEPENDENT COMMUNICATIONS PROVIDERS ASSOCIATION and CANADIAN CABLE SYSTEMS ALLIANCE INC.

Appellants

– and –

THE ONTARIO ENERGY BOARD and HYDRO ONE NETWORKS INC.

Respondents

REASONS FOR DECISION

Released: July 04, 2017