..............................
  VICE-CHAIRMAN:  Good morning, everyone.  This is the continuation of
Matter 375.  I will start with appearances with NB Power Corporation.
  MR. FUREY:  Good morning, Mr. Vice-Chair.  John Furey for the
Corporation, accompanied by Lori Clark.
  VICE-CHAIRMAN:  Good morning, Mr. Furey.  Enbridge Gas New
Brunswick?  Nobody is here from Enbridge Gas New Brunswick.  Gerald
Bourque?  Mr. Bourque is not here.  JD Irving, Limited?
  MR. STEWART:  Christopher Stewart, Mr. Vice-Chair.
  VICE-CHAIRMAN:  Good morning, Mr. Stewart.
  MR. STEWART:  Good morning.
  VICE-CHAIRMAN:  New Clear Free Solutions?  Mr. Rouse is not here.
Dr. Richard?
  DR. RICHARD:  Oui, bonjour.  I am here.
  VICE-CHAIRMAN:  Bonjour, Dr. Richard.  Sussex Sharing Club?  No one
is from the club.  Utilities Municipal?
  MR. STOLL:  Good morning, Scott Stoll.
  VICE-CHAIRMAN:  Good morning, Mr. Stoll.  The Public Intervener?
  MS. BLACK:  Good morning, Mr. Vice-Chair.  Heather Black.
  VICE-CHAIRMAN:  Good morning, Ms. Black.  And New Brunswick Energy
and Utilities Board?
  MS. DESMOND:  Ellen Desmond.
  VICE-CHAIRMAN:  Good morning, Ms. Desmond.  The purpose of this
morning is, as it was stated last week, we scheduled this morning to
hear submissions regarding a motion that was brought forward by the
applicant, New Brunswick Power Corporation.  And I just want to maybe
provide a little context of what we are planning to do this morning.
        First of all, a notice of motion and supporting documents were filed
with the Board on March 26th 2018 requesting a modification of the
hearing schedule in order to permit the filing of a modified rate
increase proposal with additional supporting evidence on or before
April 4th 2018.  This issue was -- well the issue of the modification
of the hearing schedule was dealt with by the Board in an oral
decision on March 27th.  And there was an affidavit that was filed by
Mr. Darren Murphy with the notice of motion.  His affidavit was dated
March 26th.  And inside -- within his affidavit he -- there was a
claim for confidentiality that was being advanced with respect to the
settlement terms regarding this -- the name of the -- regarding the
claim for material damage and delay in the start-up brought against
the consortium of insurers regarding the refurbishment of Point
Lepreau.
        The claim was filed with the Board on March 26th.  And the Board
understands from the claim for confidentiality that was filed that
there is three documents that are being requested to be held in
confidence -- or in confidential, or at least one, and there is two
others that NB Power does not want to disclose at this time to the
interveners.  And I will just review our understanding regarding these
three documents.
        The first document is a confidential exhibit NBP 36.06C, which has
been filed with the Board, which is a letter dated -- Mr. Furey, just
-- is the letter dated March 28th?
  MR. FUREY:  That's correct, Mr. Vice-Chair.
  VICE-CHAIRMAN:  Okay.  Thank you.  So that letter was filed with the
Board, and it sets out an amount of the settlement and it was asked by
NB Power that the Chief Clerk maintain personal custody of the letter
pending the Board's decision with respect to the public hearing -- the
public interest hearing.
        There is also an objection by NB Power to the filing of the terms and
conditions of the settlement between NB Power and the insurers related
to the claim for the material damage and delay in the start-up brought
against a consortium of insurers related to the refurbishment of Point
Lepreau Nuclear Generating Station.  In particular, NB Power requests
that the minutes of settlement executed on or about March 21st 2018
not be filed with the Board.  And there is also an objection by NB
Power to the filing of the terms and conditions of the release.  And
Mr. Furey, maybe you could help me regarding the date of the release
that -- was it signed at the same time as the minutes of settlement?
  MR. FUREY:  Yes, it was, Mr. Vice-Chair.
  VICE-CHAIRMAN:  So that's March --
  MR. FUREY:  March 22nd, yes.
  VICE-CHAIRMAN:  22nd?  21st?
  MR. FUREY:  Both are dated March 22nd.  I apologize, in the
affidavit of Mr. Murphy, we have correctly referred to it being the
22nd.  In the claim for confidentiality, I notice that it was an
uncorrected error on my part, it said March 21st.
  VICE-CHAIRMAN:  Okay.
  MR. FUREY:  So it is March 22nd was the date of execution.
  VICE-CHAIRMAN:  Okay.  Thank you.  So the claim for confidentiality
states that the confidentiality provision expressly provides authority
to disclose the settlement amount to the Board, which has been done,
and that all other disclosure is prohibited and any requests for
further disclosure must be the subject of a notice to insurers for the
purpose of enabling the insurers to advance their claim for
confidentiality to the Board.
        Now my understanding, Mr. Furey, is regarding -- we had some
discussions last week and there is an exhibit that's been filed from
Blakes, which is NBP 36.06.  And my understanding is that the insurers
will not be present today to advance their position and essentially I
think they are relying on the letter from Blakes to advance their
position regarding this public interest hearing?
  MR. FUREY:  Yes, I can confirm, Mr. Vice-Chair that I provided
notice to insurers of the date of this public interest hearing and
received written confirmation from insurers that they did not intend
to appear today, and would rely on their letter and the attached case.
  VICE-CHAIRMAN:  Okay.  Thank you.  So as a result of the claim for
confidentiality, there was two objections to the claim for
confidentiality.  There was one that was filed by the Public
Intervener, Ms. Black, on March 27th, and within her objection she
addresses the reasons for those objections.  And there was another
objection that was filed by JD Irving, Limited on March 27th by Mr.
Stewart and also in his objection notice he also addresses the reasons
for his client's objections to the claim for confidentiality.
        The Board also received a letter from Board Staff on March 26th,
which was addressed to the Chief Clerk.  And Board Staff -- or Ms.
Desmond, on behalf of Board Staff, was requesting that the minutes of
settlement and the release be filed with the Board in confidence.  And
in her letter, she sets out the reason for her request.
        So as mentioned earlier, the Board has set today's date to hear the
submissions by the parties regarding the claim for confidentiality and
any objections filed with the Board.  And so Mr. Richard -- Dr.
Richard, je ne sais pas si vous avez compris quoi ce que -- quoi ce
que j'ai -- quoique j'ai indiqué.  Y'a -- y'a -- puis vous allez
m'excuser si j'ai pas la traduction dans -- dans ma tête présentement.
Mais y'a -- y'a un réclamation de confidentialité qui y'a été émise
par -- par Énergie Nouveau-Brunswick concernant certains documents
relativement à un règlement qui -- qui on eu, qui est relatif à Point
Lepreau et puis ce matin, nous avons -- la semaine passée nous avons
fixe ce matin pour entendre les arguments relativement à cette --
cette demande-là.  Donc, y'a deux personnes qui sont objectées ou deux
parties qui se sont objectées a la -- a la -- the claim for
confidentiality.  J'peux -- la réclamation de confidentialité et puis
donc on va -- la raison d'être ici aujourd'hui pour -- pour cette
procédure ici c'est d'entendre les parties relativement à cette  -- à
cette demande-là qui a été faite par Énergie Nouveau-Brunswick.  Donc,
je ne sais pas si vous avez l'intention de déposer aucunes objections
ou est-ce que vous êtes juste ici pour peut-être faire vos arguments
relativement à l'objection -- à la réclamation de confidentialité.
  MR. RICHARD:  Oui -- non, je n'ai pas d'objection.  C'était --
j'étais juste ici pour voir un petit peu ou est-ce que on était rendu.
  VICE-CHAIRMAN:  Parfait.  Donc, peut-être lorsqu'on va faire la
procédure, je vais vous demandez si vous avez -- un coup que vous
allez entendre les parties, si vous avez aucunes choses à indiquer a
-- la Commission, si oui, à ce moment-là vous pouvez nous indique
votre argument si vous n'avez.  Si non, mais on va procéder avec les
autres parties.
  MR, RICHARD:  Merci, Monsieur le vice-president.
  VICE-CHAIRMAN:  Yes.  Okay.  Merci, Dr. Richard.  So, Mr. Furey, we
will start hearing from the submissions from your client and
afterwards we will hear the submissions from the other parties.


Page 3555

  MR. ERVIN:  Thank you.
  VICE-CHAIRMAN:  It's almost 10:45.  So I think we are going to
recess for 15 minutes and afterwards, Mr. Stewart, we will ask for
your submissions.
        Thank you.  So we will resume at 11:00 o'clock.  Thank you.
    (Recess)
  VICE-CHAIRMAN:  Mr. Stewart?
  MR. STEWART:  Thank you, Mr. Vice-Chair.  I will do my best to both
go through my presentation and not bounce around too much, but I just
wanted to begin by specifically responding to a couple of points
raised by Mr. Furey in his submission.
        The first is, with respect, we don't agree that the affidavit of
Darren Murphy, sworn 26th of March 2018 in this matter, provides the
information frankly that Mr. Furey suggested it did.  It certainly in
paragraph 4 provides that NB Power finalize the negotiation of the
settlement of the DSU claim and that there were minutes of settlement
executed with the insurers and that there is going to be a sum of
money paid in exchange for a full release, but that's all it says.  It
does not say, for example, and I am just paraphrasing a bit, and I
confirm that there are no conditions, or contingencies, or other
matters flowing out of that settlement.  It does not say that.  It
just says they are going to pay us a sum of money, and we are going to
provide them a release and we have executed minutes of settlement.
Clearly those minutes of settlement must say something.  And of
course, that's what the purpose of this hearing is all about, because
we don't know what they say at this stage.
        It would seem to me that the choice that faces the Board in this sort
of sub matter, and this motion that's before you today, is to
establish the, you know -- or to choose a level of confidentiality
that the Board will order in response to NB Power's motion.  And as we
are all familiar, that level of confidentiality provides a spectrum.
Right now the utility is at one end of the spectrum.  They want to
provide the Board, and the Board alone, and as I understand it, not
even Board Staff, but just the members of -- the three members of this
panel with the total settlement amount, that number and that's it.
And as is outlined in Mr. Furey's letter, which as I understand it,
Ms. Mitchell has conduct of.  So I would suggest that's one extreme
end of the spectrum.
        The other end, of course, is putting the three documents, the release
and the minutes of settlement, et cetera on the full public record.  I
guess posted on the Board's website in the normal course.  And the
challenge for you, I would submit, is balancing the public interest to
determine where upon that spectrum you should land with respect to
these documents.  Now as our notice of objection I think makes clear,
it's our submission that at a minimum the documents should be provided
to the formal interveners, or their authorized representatives who
have executed the confidentiality undertaking.  The confidentiality
undertaking would remind the Board, which is not in the Board's
standard form, but it was in a form advanced by the utility to their
satisfaction and which were executed by various people in this room,
including myself.
        And I am going to go both ways from that spot in the spectrum.  First
I will deal with, you know, further disclosure than that.  And
ultimately, Mr. Furey is correct, I don't represent the public in this
proceeding.  I represent my particular client, who has, you know,
become a formal intervener and executed the appropriate
confidentiality undertakings, and so I only frankly purport to speak
for myself and not for the public at large.  I leave that to Ms. Black
and/or the Board's consideration as to what further disclosure might
be appropriate.  So I don't take a position.
        I think it would be appropriate for me to say that part of our
submission in this proceeding is that this particular bit of
confidential information that has some commercial sensitivity attached
to it should be treated no differently than the Board treats other
confidential information.  And that by its nature would mean that it's
disclosed to certain interveners under certain circumstances and not
sort of divulged to the public at large.  And so I guess in terms of
indirectly we have a bit of a position in that regard.  But whether
you need broad public disclosure, I will leave that in the Board's
capable hands.
        And I will go the other way on the spectrum.  With respect, and as I
was buoyed to hear the questions from the panel to Mr. Furey earlier,
I don't imagine how the panel could possibly consider the consequences
of this settlement without understanding the terms under which that
settlement was reached.  So just the amount is not sufficient.  And
furthermore, and I think this equally applies to the next bump down
the spectrum, but this panel not only must set just and reasonable
rates, but it must do so in a fashion that the public has confidence
in.  In order for rates to be just and reasonable, the public has to
know that -- or I think has at least certainly appreciated in the past
and the legislation envisions that while it might be appropriate that
certain commercially sensitive information is not put on the public
record that ratepayers have the confidence of knowing that members of
the panel and the decision makers know the details of that
information.
        We have many examples in this proceeding alone.  For example, you
know, the utility has power purchase agreements worth hundreds of
millions of dollars over the life of those agreements.  And yet the
Board finds it appropriate that those contracts, and the commercially
sensitive nature of those contracts is not put on the public record.
But clearly the public and ratepayers would expect that the Board
itself has viewed those agreements and knows the financial details of
those agreements as part of the process that it goes through in
setting rates in this proceeding.
        I think that sentiment is equally true when we consider what's in the
public or in the ratepayers' interest in terms of what happens in this
proceeding and the fact that we hold public hearings of this nature to
assist the Board in coming to conclusions on what just and reasonable
rates for the utility might be.
        So, you know, the system -- we have been embarked in this process for
weeks, almost months now to -- and certainly since the application was
filed for six months now.  It would seem to me that the public has a
right to expect that the panel does not simply receive information
directly that's unknown or untested by participants in this hearing.
Not only is there transparency, you know, from the Board's perspective
wanting to be transparent to the public that it serves, but ratepayers
and the public have -- even if they acknowledge that they may not have
a right, or that it's not in their best interest for commercially
sensitive information to be broadcast broadly publicly.  They have the
right to expect that those parties, not the least of whom is the
Public Intervener, who sits behind me and Board Staff has the
opportunity to review that information on a confidential basis and has
tested that information and how it will translate into their rates.
        So I do agree with Mr. Furey that the Board does need to embark on a
balancing exercise and to find the appropriate balance.  And I will
come back to it in the end of my submissions, but we would suggest
that the balance we suggest, or where the balance -- or a fair and
appropriate balance will lead you frankly is exactly where it leads
you in all of the other thousands and thousands of pages of
commercially sensitive information that is part of the record of this
proceeding and that it be received by the Board in confidence, that
the Board must -- and I would submit indeed has an obligation in the
process of setting just and reasonable rates to view these minutes of
settlement and satisfy itself what's there and that the Board provide
an opportunity as much as possible, and we would submit as much as
possible would be in the same way that that other commercially
sensitive information is tested by the interveners, that it be
provided to the interveners or their representatives who have executed
the confidentiality undertaking.
        So a word, if I may, about the so-called settlement privilege that
was raised by the insurers who are apparently a party to these minutes
of settlement and Mr. Furey this morning.  Settlement privileges, of
course, not new.  I think in my experience, and way too many years of
practicing law, the two things that clients seem to understand the
easiest when we talk about evidentiary privileges, solicitor/client
privilege, or lawyer/client privilege and sort of off the record, as
it were, settlement negotiations and the need to protect those kinds
of things.  So some of the privilege is real.  And clearly, I would
agree with Mr. Furey that the case law indicates that it applies not
only to negotiations which didn't bear fruit but also to a settlement
reached at the end of the day.  But just like every legal privilege,
there are exceptions.  And just like every legal privilege, it can be
waived.  And frankly, it may be the proverbial six of one and half a
dozen of the other, or it may be that the two over -- the two
principles sort of overlapped, but we would submit that either these
minutes of settlement fall within an exception to that privilege or
they have been effectively waived by the parties.  And I will address
the waiver first.
        And that really comes to the point that was made in our notice of
objection, and as was discussed by Mr. Furey at some length this
morning in the -- sorry, in the terms of the settlement agreement
itself that's been made -- that forms I guess appendix A to Mr.
Murphy's affidavit of March 26th 2018.  So if we turn to that, on the
face of this agreement, the parties acknowledge when there will be
potential changes to their obligation to keep the settlement
confidential.  And even at the beginning of, you know, there is an A
and B at the top of the page, and B is as required by law or by the
rules of policy of any regulatory authority, stock exchange or by any
governmental policy.  So on its face, the parties acknowledge that
yes, as between us we will keep this confidential, and yes, because
there are other potential parties who might be responsible to make
good in other portion of this loss, we will keep it confidential from
them, but we expressly acknowledge in this agreement right from the
get go that the terms of this settlement and these minutes of
settlement may be disclosed and won't be confidential, because it's an
exception, under or by the rules or policies of a regulatory authority
including, of course, yourselves.
        And further down the page, you know, there is a specific reference to
the Electricity Act and the Energy and Utilities Board Act, and that
the EUB has authority to compel disclosure of documentation relevant
to the proceedings under the Act, which documentation may become
public, subject to rules and procedures, as they may relate to
confidentiality.  And the insurers acknowledge that NB Power may be
required to disclose release of the settlement funds, which they have,
and may be requested and in course of any regulatory proceeding to
disclose or otherwise provide access to these minutes or any portion
thereof.
        So on the face of the agreement, the parties acknowledged, yeah, well
we are going to try and keep if confidential, but we acknowledge this
might happen.  So with respect, it would -- we would submit that you
can't then hide behind a settlement privilege and say well this can't
happen.  And that that agreement between the parties, and as put
before the Board in the evidence of Mr. Murphy must constitute at
least a limited waiver of the settlement privilege.  And having been
waived, it's not applicable and can't be used to limit disclosure of
the minutes of settlement under whatever terms and conditions the
Board feels appropriate in the public interest.  But the strict legal
privilege, I would submit, is gone.
        The insurers that Mr. Furey made reference to, of course, the -- I
guess now a five year old decision of the Supreme Court of Canada, the
Sable Offshore Energy case, and in the headnote of that case, is the
sort of summary at the outset, the decision provides, as with other
class privileges there are exceptions, and I will get into a couple of
exceptions in a moment, which I believe are applicable.  And the court
is also clear, I would submit, not to limit those exceptions, but to
create an open class of exceptions provided that the -- but it does
set out a task that a defendant must show that on balance a competing
public interest outweighs the public interest encouraging settlement.
So on the balance -- I would submit on the balance of probabilities,
we are going to suggest a couple of exceptions and suggest that this
circumstance falls within them.
        And again, the points will sort of reflect in both ways.  And it's
not a coincidence that they are sort of equally applicable.  So they
would turn on the Board's obligation under Section 34 of the Act to --
in any -- with any confidential information that's brought before it,
to weigh the public interest.  And it's not a coincidence that
exceptions to this legal privilege also require the public interest to
tip the scales, as it were, in a certain fashion.  The rationale
behind those two things, I would submit, are largely the same.
        I would also think it’s important to point out that in that Sable
Offshore Energy case, which is sort of recounted within the decision,
but in the very next line or two of the headnote where it reads the
non-settling defendants have received all the non-financial terms of
the Pierringer Agreements.  They have access to all the relevant
documents and other evidence that was in the settling defendant's
possession.  So on the facts of that particular case, two things are
important.  One, it was the co-defendants to the action.  So that
would be tantamount as if AECL was here this morning asking for
disclosure of this agreement and trying to use the regulatory process
to somehow get access to it.  I think that would involve a completely
different set of considerations.  So that's the context of this
decision of the Supreme Court of Canada.
        Furthermore, they were talking about, you know, there had been
disclosure of the terms of the agreement, of the settlement that was
reached, because clearly at some point someone felt that that couldn't
be withheld, it was only the dollar amount that was being held in
that.
        So a word or two about exceptions and I do have a case, and I have --
and I am just going to briefly refer the court to it and I have copies
to file with the court.  But there are at least two exceptions
recognized in the juris prudence.  One, and it's actually in a
decision which pre-dates Sable Offshore, and there is a discussion of
the decision in there is the Dos Santos Sun Life Assurance, B.C. Court
of Appeal case, which excluded the settlement privilege to ensure that
the plaintiff was not overcompensated by receiving an indemnity from
his insurer.  In other words, the court recognized that it may be
appropriate to provide -- or to direct disclosure of a settlement, or
at least limited portions of a settlement to ensure that the party who
has received the funds is not going to be unjustly overcompensated.
And with respect, I would suggest that that has applicability in this
situation as well.  Either in terms of your weight of the -- assessing
the weight of the -- the balancing the weight of the public interest
and disclosure under Section 34 or whether also again it falls within
an exception to the settlement privilege as set out in the
jurisprudence.  It would seem to me that the public and the ratepayers
want to ensure that there is nothing in these terms of settlement that
would suggest that, and as it is reflected in the rates that the
ratepayers will receive, that there is not -- that there is no
overcompensation or that in fact the ratepayers are effectively
getting their due, so to speak.
        Now again whether that exception would then apply to broad public
disclosure, I would leave in your capable hands.  But whether it's
balancing the public interest generally, or whether it falls within
one of these exceptions, I think both of those is true.  And for the
record, the case that I have in front of me is Jacques Abenaim and Her
Majesty the Queen and Konica Minolta Business Solutions (Canada) Ltd.
And it's a 2015 decision of the Tax Court of Canada.  And ever so
briefly, in that case there was a settlement agreement.  And as a
result of the settlement agreement, there were tax consequences.  And
so the issue before the Tax Court was what taxes are owing as a result
of receipt of the settlement.  And in that particular case, the
taxpayer wanted to bring forward the terms of the settlement, the
minutes of settlement, for the purposes of trying to convince Revenue
Canada or Canada Revenue Agency as to how the receipt of the
settlement fund should be treated for taxation purposes.  And the
Minister said no, that's privileged.  They shouldn't be allowed to
bring it forward.  And in the end, the Tax Court found that an
exception applied, and the exception was that again we are outside of
that more typical realm where the privilege would apply where you have
a co-defendant wanting to know settlement information, which may be
used to their advantage, and that it was in the public interest to
protect the integrity of Canada's tax revenues and the tax system that
either party, be it the Minister of Revenue or a taxpayer couldn't
rely on the privilege to keep away from a fair assessment of what tax
would be owing as a result.
         And I would submit that that circumstance is analogous to the
situation that you have before you.  This Board is not involved in, I
believe, at least not in this proceeding, an assessment of this
settlement, not involved in the process of pursuing claims that the
utility is pursuing.  But the Board has a separate obligation to set
just and reasonable rates for the utility and this settlement and the
terms of the settlement directly relate to that.  It cannot be said
that these terms of settlement are not relevant to the rates that you
are going to set in this proceeding.  Clearly, they are directly and
crucially relevant.  Furthermore, and I guess we don't know what the
number is.  We don't know if the number is 3 million or 300 million,
but clearly the number must be material, because the utility has
sought to amend its whole rate case and effectively this process has
been going on for six months or eight months now, to fundamentally
change how much of an increase they are asking for in the current
financial context of this utility.  So it is relevant and it is
material to the decision that you need to make.
        And so by either of those two exceptions, I would suggest that the
so-called settlement privilege, if it's not outright waived -- waived
in the first instance is not applicable and should not stand in the
way of this Board performing what would otherwise then be a fairly
routine, I would submit, Section 34 analysis of what's in the public
interest in terms of the disclosure of this particular information.
        So if I could try to summarize our position then.  One, the
settlement privilege provisions either have been waived or do not
apply, because one of the two exceptions that I have just referenced
you to are applicable.  Two, the evidence is relevant or the minutes
of settlement are relevant and material.  Three, the Board has -- the
Board's obligation to establish just and reasonable rates in a way
that's both transparent and acceptable to the public and ratepayers
and in accordance with the mandate given to the Board, requires the
Board to have access to this information and this documentation.  I
don't know how you could ever do it otherwise.  Equally, at some
point, apparently in two days, we will have evidence as how the
utility intends to treat the settlement amount.  And I will take issue
with Mr. Furey's earlier suggestion that well, you don't need to know
the amount to, you know, talk about the proper accounting and
treatment of the settlement.  With respect, I object to that most
strongly.  And again, I am going to use a broad scope to make the
point, but if this is a $3 million settlement, the appropriate
treatment of that settlement amount could and almost certainly would
be fundamentally different than if it's a $300 million settlement.
And how we could take a position, and how the Board could take I guess
maybe the Board would know the total number, but how interveners would
be able to attest -- test or speak to the proposed treatment of the
settlement fund by the utility without knowing what that is and
whether there are any conditions attached to it, frankly is not
sensible.
         That's why we are here.  We have no desire to otherwise to have
commercially sensitive information disclosed to us, but this
information is material to this rate case.  Having said that, we do
recognize, and as Mr. Furey said earlier, you know, to his credit he
wanted the utility to have a -- get a little credit here about how
they have been transparent and even if information provided to
interveners or the Board is treated in a confidential basis, there
hasn't been much objection to that.  Well, you know, but the opposite
is also true.  I think the interveners in this proceeding have been
content largely with the level of confidentiality that has been
proposed by the utility.  We haven't, you know, sought to put
information on the public record or get broader disclosure of
information in the utility's hand than was ultimately necessary for us
to be able to speak to or take a position with respect to the rates
which may be owing in this proceeding and to test NB Power's case.
        So all of which to say when you ring out the towel, what you end up
with is commercially sensitive information with respect to the receipt
of money by the utility that's contained in a contract with a third
party.  And when the Vice-Chair asked Mr. Furey that question, what's
different, and I think he did a fine job, or as best he could to try
and come up with a difference, Mr. Furey referenced you to, you know,
the settlement privilege, which we submit simply doesn't apply for all
the reasons I have talked about over the last little bit, or it's
different facts.  But ultimately in terms of what's in the public
interest, it's all it is.  It's another document with commercially
sensitive information.  And I haven't heard any reason or any basis
why the panel should depart with how it has -- and I believe the
wording we used in our notice of objection was with the myriad of
other virtually identical, for these purposes anyway, information that
formed the record -- formed part of the record in this proceeding.
There is no difference.  And an attempt to roll out the privilege is
creating a difference, well fine, but it just doesn't hold.  Subject
to any questions, those are my submissions.  Thank you.
  VICE-CHAIRMAN:  Mr. Ervin?
  MR. ERVIN:  The portion of your argument concerning the waiver of
the privilege on the basis of what we saw in Mr. Murphy's affidavit,
Mr. Stewart, I'm having a hard time understanding how that schedule
can amount to a waiver, where it really in my view sets out terms and
conditions that are pretty standard in any confidentiality agreement.
And I think it seems to me at least that it represents an
acknowledgement and a simple acknowledgement by NB Power that there
are certain things outside of its control, such as regulatory fiat.
Can you comment on that?
  MR. STEWART:  I will certainly do my best.  First off again this
isn't merely a statement by NB Power, with respect, it forms part of
the agreement between the parties.  So they have agreed to these
provisions.
        And what I think is different about this than a standard of agreement
-- and frankly I have been there, I have negotiated contracts with a
public -- or assisted clients in negotiating contracts with a public
utility, and you know that you are dealing with frankly a different
animal, if I can use that expression.  And the whole nature of the
utility's claim for keeping this information -- or these minutes away
from this proceeding is that they have agreed to a third party that
they will do that.
        But when you look at what they have agreed to, you know, the insurers
further acknowledge that NB Power's required -- excuse me -- that NB
Power may be requested in the course of a regulatory proceeding to
disclose or otherwise provide access to these minutes or any portion
thereof or any, quote/unquote, confidential matters.  So that's what
the insurers to this agreement agreed to.  We agree and we acknowledge
that you may be required to disclose these, subject to whatever the
Board orders in a proceeding just like this.
        So if I'm agreeing that this information which might otherwise be
privileged, can and arguably might be disclosed subject to a decision
of a regulator, then I have stepped around my privilege.
        In the Sable case the settlement was a settlement of  legal claim.
They were plaintiff, they settled with a portion of the defendants.
They didn't then go on to agree that there were exceptions when the
other defendants might learn the information, and they were able to
rely on their privilege.  So if I settle a case with someone and agree
that they -- you know, subject to the decision of someone, a regulator
in this case, may be required to get all of this document and receive
all the confidential information, then it seems to me that that is
tantamount to waiving my privilege.
        And it's either that -- it's either an outright waiver or it's an
acknowledgement frankly that disclosure in this context would serve as
an exception.  It seems to me you can't have your legal cake and eat
it too.  You can't agree and acknowledge that disclosure may very well
happen in a given set of circumstances and then roll out a claim for
privilege which would effectively bar that which you have just
acknowledged could very well happen.
        And nowhere in this confidentiality provision does the insurer say,
and we stand on our settlement privilege rights.  They have as part of
this settlement, again knowing the animal they are dealing with, they
are negotiating with a public utility, and what that means, they
acknowledged in the agreement, and I'm sure the utility to its credit
wanted to make sure that that was very clear as part of the terms of
settlement, that this kind of disclosure could very well happen.  And
so you can't claim privilege at the same time you acknowledge that it
very well could happen.
  MR. ERVIN:  It does seem to me that even in the absence of that
language in the schedule that NB Power would be in the same position
that if this Board were to require disclosure NB Power would be
required to comply with that order.
        Isn't that language just an acknowledgement of that fact and making
it clear to all parties that that's the position that NB Power would
be in, in any event?
  MR. STEWART:  Yes.  But -- yes, it is, and to the utility's credit
they want to make sure that the other party to their settlement is
well aware and has formally acknowledged the statutory obligations and
the regulatory environment within which it as a public utility must
operate.  So good on them.
        But those obligations would exist on NB Power whether they put it in
this appendix or not.
        But by coming to an arrangement like this with a public utility the
insurers I would submit have to acknowledge, and they did, that this
is a different circumstance.  They are dealing with a regulated entity
and these minutes of settlement may very well be subject to some level
of disclosure in a regulatory proceeding, in the same way that an
entity which enters into a power purchase agreement with the utility,
which has very, you know, clear confidential language in it, knows
that it's contracting with a public utility and at least there be a
certain level of disclosure of this agreement as part of a rate case
for example.
        And I'm not saying that the language adds anything new.  It is simply
evidence that by coming to this agreement with a regulated entity, the
insurers are effectively acknowledging that there are limits to their
settlement privilege claim.
  MR. ERVIN:  I think the first case that you mentioned -- was it Dos
Santos, I believe?
  MR. STEWART:  Dos Santos, yes.
  MR. ERVIN:  Dos Santos case with the -- to ensure that the party is
not over-compensated, that was -- I think that was the issue in that
case, if I'm correct?
  MR. STEWART:  That's correct.
  MR. ERVIN:  It raises in my mind a question of whether this Board is
-- part of the jurisdiction of this Board, whether it is to assess the
reasonableness of the settlement, because I don't see that as being
part of our jurisdiction in these circumstances.
        The settlement has been made between the parties to a litigation.
Whether the Board at this point would have jurisdiction to decide
whether or not that was a reasonable settlement, I just fail to see
the -- how that case would be analogous to what we are faced with
here?
  MR. STEWART:  Well -- and I will do my best. And again at least
within the scope of this motion -- I'm not prepared to argue what the
scope of the Board's jurisdiction is, but it says reasonableness -- as
I say I'm not going to go there today, as it were.  I'm here simply
advocating for limited release of some confidential information to the
Board and certain parties in this proceeding.  So that's all of my ask
in this matter.
        But here is how I think the terms of the settlement and the
settlement -- you know, why I think that exception might apply, is
because again it would seem now that in this proceeding, the Board is
going to need to decide how these settlement funds are treated and
over potentially an extended period of time.  And it seems to me this
is, as Mr. Furey pointed out, good news for the ratepayers and good
news -- ratepayers are going to want to ensure that they get their
fair credit, their fair benefit of this settlement that was reached,
and that the utility doesn't say, yes, we received a settlement of X
and how that flows down to you ratepayer, we are going to make sure
that you get full and appropriate credit for that.  That's going to be
an issue in the rest of this proceeding.
        And so again, I'm not necessarily suggesting anything untoward from
the utility, just so I'm clear.  But answering that question of
whether or not the ratepayers are getting the proper benefit from --
and the different classes of ratepayers are getting the proper benefit
of this settlement over an appropriate period of time, and which
ratepayers do, is it 10 years, is it 28 years, you know, those
questions are likely to be debated.  And so there is a risk that in
effect in this sort of public utility context that there might be
over-compensation, not in the classic sort of sense of a plaintiff
pursuing a claim, but there is an element of potential
overcompensation, or maybe put the other way, under-compensation of
ratepayers or a class of ratepayers if the settlement isn't treated
properly.  So I think that's going to be an issue in this proceeding.
        And therefore that evidence and down to a particular document like
the minutes of settlement need to be treated in that fashion.  There
is a risk of that if we don't know.  If we don't know how much the
settlement is how do we -- how do we as Intervenors and ratepayers
understand whether or not we are getting our proper benefit and the
utility is not being over-compensated?
  MR. ERVIN:  The second case you mentioned I think was Jacques and
Minolta, was it?
  MR. STEWART:  Yes.  It's Jacques --
  MR. ERVIN:  Jacques.
  MR. STEWART:  -- and forgive me, I'm not sure I'm pronouncing it --
but it's Abenaim -- and I have copies here for the Board as well.
  MR. ERVIN:  The -- and I don't -- I'm not familiar with all of the
facts of that case and the outcome, but was the outcome such that it
was the Minister of National Revenue who received the confidential
information about the amount of the settlement in order for the
minister to make a proper tax assessment based on that?
  MR. STEWART:  No.  And I will just review the facts quickly just to
make sure, because I did reference the case.
        The matter was being -- so taxpayer filed a return, the minister
treats certain of the taxpayer's income, or the settlement proceeds
for taxation purposes, in a certain way.  Taxpayer doesn't like it,
appeals to the tax court.  So this was a motion before the tax court.
The taxpayer wanted to say here are the terms of my settlement, the
settlement was so much general damages, so much loss of income, so
much this, so much that, and so that should be used by the department
and I'm advocating as evidence before you Tax Court Judge as to how
much taxes you are going to rule that I owe.
        And the department, or the minister, who is the respondent to the tax
appeal, says no, that's privileged.  It is a class privilege, as Mr.
Furey would tell you.  And I'm going to    stand on the privilege and
I don't want that admissible before the tax court.  And the tax court
recognizes that, you know, there is -- you know, a settlement and all
that sort of thing.  But here we are removed from that and so I'm
deciding whether an exception to that privilege should be made in the
purposes of determining how much tax should be paid on the settlement.
And the court rules that it's in the public interest, both in the
public as taxpayers and then the tax assessment process, that the
privilege -- that an exception to the privilege be carved out for
those purposes, and then I think they go on to have an in-camera
hearing before the tax board dealing with the information.
        So our submission was that in the same context here, you are not
dealing with the settlement or the claims or the negotiations, you are
at sort of one step removed in a collateral process involving one of
the parties.  In the same way the tax court was setting -- determining
how much taxes they owed, you are going to determine what their rates
that they charge customers should owe, but the settlement is integral
to that.  And so use of -- or disclosure of that information on a
limited basis before the tax court is analogous to it being disclosed
in a limited basis before this regulatory proceeding.
  MR. ERVIN:  And I think your position on disclosure is such that any
intervener who files an undertaking -- a confidentiality undertaking
should have access to the information and the documents in question,
is that correct?
  MR. STEWART:  That is correct.  At least, yes.
  MR. ERVIN:  The undertaking itself -- and if the undertaking that
your client signs or you sign on behalf of your client, if for some
reason the information is disclosed by your client, in breach of the
undertaking, I presume that there would be consequences to your client
for that breach under the undertaking?  And I looked at the
undertaking the other day but it does acknowledge that there would be
certain consequences as a result of that.
  MR. STEWART:  Yes.
  MR. ERVIN:  And certainly your client would be in a position to
indemnify for any breach along those lines.
        My question to you is if there are unrepresented interveners who were
to sign an undertaking on that basis who would not be in a position to
indemnify, would that be a justifiable concern of NB Power's to
release that information even on an undertaking by somebody who may
not be in a position to indemnify?
  MR. STEWART:  Perhaps.  I mean, I think it would be hard to deny the
common sense of that, to a certain extent.  Although I have to say
that I would take any concern along those lines with a bit of a grain
of salt because if that was truly a concern, it would have been a
concern with respect to all of the other confidential information
that's provided.
        I mean, the -- in phase 1 of this proceeding, you know, there was no
restriction on release of the terms of the AMI contract, for example,
or the draft AMI contract.  Or there is disclosure of the power
purchase agreements.  You know, knowing the prices of those power
purchase agreements is incredibly valuable commercial information, the
disclosure of which, you know, could cause a loss to the utility.  But
the utility was not concerned in that context.  And so I would take it
with a grain of salt if they raised that concern now, you know,
hundreds of millions of dollars is hundreds of millions of dollars,
whether it's for this agreement or for that agreement.  But I do
acknowledge in principle the need that there only be as much
disclosure as is necessary.  And if the Board felt that in the public
interest -- I know Mr. Furey raised for example only formal
interveners that have been involved in this part of the proceeding.
And I can see that.  The only concern I have with that is, you know,
you have parties who are involved in this proceeding because they
understand the proceeding to be a certain thing, you know, a rate case
seeking an average 2 percent.  And so for example Enbridge Gas New
Brunswick is the obvious example, they were involved in phase 1,
haven't been involved in phase 2, but they might very well want to
know the information because now the application is going to be
materially different.  Maybe they won't care.  But sure, I don't think
there is anything wrong in principle with the Board, given the
circumstances, being -- I won't say imaginative, but being particular
who gets to understand what information, on what basis.  As long as
that's fair and as long as it's typical with what has been done in the
past.
  MR. ERVIN:  And my final question, Mr. Stewart, is in a scenario
where the Board receives all of the documents on a confidential basis
and the interveners and indeed the rest of the public would see
perhaps only a redacted version of that, knowing that the Board's role
is to ensure the public interest and fairness and reasonableness in
how the proceeds of settlement are applied in case of rates, do you
see any real prejudice to your client in that scenario?
  MR. STEWART:  And sorry, just so I am clear, do I see prejudice to
my client if my client does not know the settlement amounts and does
not have an opportunity to view the minutes of settlement?
  MR. ERVIN:  That your client would maybe at most have a redacted
version of the documents in question?
  MR. STEWART:  Yes, I do see a prejudice, because -- not that we
don't necessarily have faith in the Panel, but if I didn't see a
prejudice in that, then we would not have participated in this
proceeding.  I mean, with respect, I think it's a bit of a slippery
slope but I think we have to consider the integrity of this process.
        To suggest that oh, now we have information which is material to the
rate application that is commercially sensitive, we don't think it's
necessary for the formal interveners to see that and just sort of
trust us and the Board.  If that were the case, we wouldn't hold this
hearing at all because then I would just say to my client, well, you
know, the utility has filed information and we will -- you know, the
Board will do its best and that's great.
        Frankly, both your mandate, I would submit, and the public and
ratepayers have expectations that not only is material provided to you
but material is tested before you.  And if that information isn't
provided then we are unable to attest it -- unable to test it.  And
that's what we do here.  We test the information and the evidence
that's provided by the utility in support of its application either
through cross examination or questioning of the utility itself
directly and/or the provision of evidence of our own.  And that
process has real value.
        And I would submit that both my particular client and other
participants in this proceeding and ratepayers as a whole would be
prejudiced if that were the case.
  MR. ERVIN:  Thank you.
  VICE-CHAIRMAN:  A few questions, Mr. Stewart.  You were talking
about the evidence needs to be tested in this proceeding.
        I'm wondering if this -- and I have been making these comments
throughout the hearing for the past 22 days that we are at a point now
where it's -- the proceeding in its nature has been long and I'm
wondering if this is the proper proceeding to test this information or
should it be tested in a separate proceeding?
  MR. STEWART:  Well I have to say, Mr. Vice-Chair, that I share those
sentiments, but I will say this.  I think in a large measure that ship
has sailed when the utility came forward for its motion to amend its
evidence in this proceeding to bring this in, and that motion -- that
order was made by the Board or that motion was approved by the Board
then here we are.  I can't swear I said this but if I didn't say it
out loud I would have intended to indicate that while we supported the
motion we did so somewhat reluctantly or with a certain level of
frustration that, you know, now because of this, we are going to yet
potentially have even a more extended provision and, you know, new
material evidence at this late date.  But I think that we now have --
I mean, we supported it because ultimately -- and again to the
utility's credit, they don't want to -- apparently don't want to
charge their ratepayers any more than they have to, and they feel that
this is a material change that will lower rates.  And despite the fact
we are frustrated about how this has unfolded and how it will extend
this proceeding, ultimately I view it as a necessary evil to get to
the rates the utility wants to charge, and if they are lower than what
they have been submitting, here we are.
  VICE-CHAIRMAN:  Mr. Furey talked about somewhat of an independent
expert to review these documents.  Can I have what is your client's
view regarding this?
  MR. STEWART:  Sure.  I don't think we have any objection to that.
But I think Mr. Furey was bringing it forward as only that.  And then
that leaves me within the same response that I gave to Mr. Ervin's
question just a few moments ago.  Again these hearings are not simply
the applicant files its evidence and the Board retains an independent
expert and reviews it and then you make a decision.
        The hearing is to provide ratepayers who have potentially a
particular interest and/or the public at large to test that evidence.
And with respect, I think ratepayers would be prejudiced, both my
client and others, and the integrity of the process would be brought
in to disrepute a bit I think if simply the only testing that went on
was something which is material enough to change this application in
the way that we -- that apparently it will, just that we hire an
independent expert and they do a review, you know.  Again, if it was a
$3 million change, maybe, but I don't know.
  VICE-CHAIRMAN:  My last question, Mr. Stewart, is there was -- you
discussed about this spectrum at one end to the other end.  So at one
end I would -- I think what you said is --
  MR. STEWART:  Where we are now.
  VICE-CHAIRMAN:  -- non-disclosure and where -- and at the other end
is essentially where there is full disclosure.
        Can I have what your views are?  What is the harm to the utility --
well I think I understand what the harm is regarding -- there is no
harm if we are at the end of the spectrum where we are at right now,
but what is the harm to the utility if there is full disclosure?
  MR. STEWART:  Well I'm a little hesitant to make the utility's case,
but we did address it in our notice of objection.
        I think the potential harm is the potential harm that would be
applicable with all the other confidential information that's filed in
this case, that both representing a ratepayer and just frankly common
sense would suggest that there is a potential harm to ratepayers if
somehow disclosure of this settlement were made broadly public and
that prejudiced the utility's ability to reach or conclude it -- reach
a settlement in the other portion of its claim, because that might be,
well money out the door, so to speak, that the utility doesn't get and
therefore ratepayers don't get the benefit of.  So I think that's a
legitimate consideration.
        And in the same exact way that we don't oppose for example, you know,
confidentiality being attached to the power purchase agreements,
because we believe that ultimately it's in -- except under very
limited circumstances, at a different spot in the spectrum because we
acknowledge that again, it's a balancing act, Mr. Furey and I, I
think, agree on that point, that that's a fair balance, a fair spot to
land on the spectrum, because if the price that is paid under those
agreements were made public, it's going to be harder of course for the
utility to negotiate its next deal or its next power purchase
agreement.  So -- and getting the best price or paying as least as
possible, I suppose is good for the ratepayers.
        And so the potential harm to NB Power if this were made broadly
public, I can only take them at their word that they are concerned
that it might have a negative impact on their ability to either settle
or pursue the rest of their claim.  And if that negative -- that
negative impact is probably going to flow back to ratepayers.
  VICE-CHAIRMAN:  Thank you, Mr. Stewart.  It's noon time.  So we are
going to break for lunch.
        And, Mr. Stoll, are you going to have any submissions?
  MR. STOLL:  I was not going to make any submissions, sir.
  VICE-CHAIRMAN:  Okay.  And so we will resume with Ms. Black once we
come back from lunch.  And we are going to resume at 1:05.  Thank you.
    (Recess - 12:05 p.m. - 1:05 p.m.)
  VICE-CHAIRMAN:  Ms. Black?
  MS. BLACK:  Thank you, Mr. Vice-Chair.  I will begin my submissions
at the same place that Mr. Furey did this morning and that's at
Section 34 of the EUB Act.  And as Mr. Furey predicted, I take no
issue with the notion that the information that's under discussion
today is by its nature confidential.  And the issue for the Board is
to determine whether it is necessary in the public interest to
disclose -- to allow disclosure or require disclosure of that
information somewhere along that spectrum that Mr. Stewart spoke about
earlier today.
        To circle back to another one of Mr. Furey's initial comments, I
think it's clear in my written notice of objection that I am not
advocating for full public disclosure of the settlement terms today.
I am of the strong view that doing so would work contrary to the
public interest for precisely the reasons that Mr. Furey outlined that
it could put at risk NB Power's ability to achieve a favourable
disposition of upcoming claims related to this matter.
        So in my view, I think the place on the spectrum that it's reasonable
to discuss today is that middle ground, that limited disclosure to
parties to this proceeding who have executed confidentiality
undertakings.  And that leads to the question of whether that level of
disclosure is necessary in the public interest.  And Mr. Stewart
covered this ground quite extensively, so I don't purport to repeat
the points he made in that detail.  But I would submit, as he did,
that the Board's ability to fulfil its mandate to set just and
reasonable rates depends on the mechanisms of the hearing process
being able to play out as they are intended to do.  As Mr. Stewart
pointed out, there is a reason why interveners intervene in these
processes and that is to ensure that the information that the Board
has before it at the time the Board makes its decision is as well
tested, as fulsome and is fully reviewed as possible.
        So for the benefit of the process and ensuring that the process
itself is as robust as it can be, in my view, this limited disclosure
must be allowed in order to properly test the evidence for the benefit
of the Board. And Mr. Furey suggested that perhaps a substitution -- a
substitute, or an alternate approach of having the Board engage an
independent expert could fulfil that function in a different way, but
I have trouble understanding how disclosing the information to an
independent expert and to the Board is any less risky than disclosing
it to the limited number of interveners who have executed
confidentiality undertakings.
        And that leads me to my fundamental issue in this application, in
this proceeding today, which is as Mr. Stewart also pointed out, I am
having trouble distinguishing a difference between this particular
type of confidentiality claim and any other that has been put before
the Board in the past.  And I recognize that Mr. Furey offered a
couple of differences, one of which is that NB Power's hands are tied
in this circumstance by the agreement that they have entered into.
They aren't at liberty to voluntarily offer disclosure of this
information.  And then the other difference, as we talked about
extensively already, is this claim for privilege by the insurers and
by NB Power.
        So I will move on to say a few things about the privilege issue and
my comments will track similar to Mr. Stewart's as well, to the extent
that the settlement privilege outlined by the insurers in the letter
from Blakes that was submitted to the Board applies on a prima facie
basis, it is my view that one of two things is going, either the
public interest exception applies or -- and/or the parties to those
minutes of settlement have waived their privilege at least for the
limited purposes contemplated by this proceeding.
         And I will start by talking about the exception, the public interest
exception to settlement privilege.  Mr. Furey characterized the issue
as to whether this exception applies as depending on whether the
public interest in allowing disclosure outweighs the public interest
in encouraging settlement or not discouraging parties to settle in
proceedings.  And I appreciate and agree that that's the way the test
is characterized in the decision that was submitted to the Board.
However, in this particular factual situation that we have, it's not
quite that clear cut in that allowing disclosure in this proceeding on
the limited basis that's contemplated to parties who have signed the
confidentiality undertaking, at most serves to increase the risk that
perhaps the public interest in encouraging settlement could be chilled
somewhat if that disclosure somehow led to parties to the litigation
becoming aware of the settlement amount or other settlement terms.
        And the submission from Blakes actually acknowledges this in this
second paragraph and I will just read it out.  Perhaps we don't need
to put it on the screen, but the second paragraph halfway through
says, any disclosure of the terms set out in the minutes of settlement
and release would increase the likelihood of AECL becoming informed
and that would seriously prejudice insurers in the future attempt to
reach a settlement with AECL.  And so it's not an either/or situation.
It's not a zero sum situation that we have before us in doing that
balancing act of weighing the public interest, because allowing the
limited disclosure to parties in this proceeding who have signed a
confidentiality undertaking does not automatically lead to the result
that AECL would become informed of those terms.  And I submit because
of that difference, or because of that nuance, it's an easier
balancing act to conduct.
        And finally on the point of waiver privilege, I would agree with Mr.
Stewart that the act by NB Power and the insurers of entering into the
settlement agreement constitutes a waiver of the settlement privilege
at least for the limited purpose contemplated under the minutes of
settlement, particularly the confidentiality provisions that we have
available to us to review.  And in support of that assertion, I would
offer to the Board the decision -- and I have copies here.  I haven't
yet submitted them to the Chief Clerk.  The decision in R.V. Nestle
Canada and that admittedly is a lower court decision of the Ontario
Superior Court of Justice.  The citation is 2015 Ontario Judgments No.
539.  And that was a case that came after the Sable Offshore Energy
decision of the Supreme Court of Canada and refers to it in a context
of a criminal proceeding under the Competition Act where certain
parties were involved in a price fixing scheme and one of those
parties is being prosecuted and other third parties had entered into
an immunity agreement with the Crown or an agreement to have more
lenient sentences with the Crown.  And there was an issue as to
whether some of the information obtained by those third parties should
be disclosed in the criminal proceeding to the accused and the Crown
was looking for directions from the court.  And even though in that
case the court determined first that settlement privilege didn't apply
and secondly, if it did apply that the exception, the public interest
exception that we have discussed, applies.  In the alternative
alternative, the court had said if we are wrong about all these
things, then in the court's view, waiver of privilege applied on a
similar basis, on the basis that by executing the immunity agreement,
those third parties who are now claiming privilege over that
information had waived that privilege because the immunity agreement
said that that information could be disclosed as required by law and
set out a few types of ways, methods by which that information could
be disclosed as required by law.
        So in my view, even though the context factually is quite different
here, that notion of a contractual acknowledgement of the probability
that that information could be disclosed is similar in this case.  And
because of that, even if in this case the exception to settlement
privilege doesn't apply, which in my view it does, the alternative is
that that privilege has been waived by the parties at least for these
purposes that are contemplated here, because they were described in
detail in the confidentiality provisions of the minutes of settlement.
So those are my submissions subject to any questions.
  VICE-CHAIRMAN:  Thank you, Ms. Black, for your submissions.  And Dr.
Richard, je crois que vous avez indiqué lorsqu'on a commencé les -- la
procédure ce matin que vous avez pas de commentaires à faire?  J'peux
comprendre que vous n'avez à faire certains commentaires.
  MR. RICHARD:  Oui, oui.  Si vous me le permettez.
  VICE-CHAIRMAN:  C'est une -- juste pour vous informer, juste
peut-être pour le dossier, ordinairement c'est -- on -- on laisse aux
parties qu'on faites objections à faire des soumissions, mais je vous
indiquais ce matin que -- qu'on la Commission vous accorderai ce
privilège-là, donc on va entendre votre -- votre soumission
relativement à la demande des traitement confidentiel même-si vous
avez pas soumis votre -- votre objection dans le -- dans la procédure.
Donc vous êtes permis de faire vos commentaires si vous voulez.
  DR. RICHARD:  J'ai le droit d'aller vous dites?
  VICE-CHAIRMAN:  Definitivement, oui.
  DR. RICHARD:  Oh, okay.  Thank you, for letting me -- if I
understand well, NB Power wants to eliminate the rate increase.  It
would be important to know the amount of the new funds that we have,
because it would assure if the loans that NB Power had are reduced in
-- as the same amount if the Board decide to use that money to lower
the loans.  I would like to -- as you know, I am worried about the
smart meters and it's not in this part.  I would like to -- I wonder
instead of just adjourn the rate increase, I wonder if we could not
just adjourn the Matter 375 in its entirety and return to 357, because
the smart meter we don't have a mandate yet to bill the -- les
variances dans le temps-la.   A mon humble avis, Monsieur le
vice-président, l'intérêt public sera servi seulement si ces fonds
sont utilisés pour rembourser les prêts et non pour fixer les tarifs.
I understand it would be very convenient for our Prime Minister to be
able to say that rate -- there is no rate increase this year, an
election year, but is it in the interest of the public or is it in the
interest of the Liberal Party?
        I know that if I would have run my business the same way as I read in
the transcript of the 29th, I would be a long time ago flatline.  We
-- NB Power is very important for us.  We should not lose it.  Thank
you, Mr. Vice-President.
  VICE-CHAIRMAN:  Merci, Dr. Richard, pour votre soumission.  Ms. Desmond?

of the correct email address
To: David Amos <david.raymond.amos333@gmail.com>


Thank you for your email.I will be out of the office at a regulatory hearing on Wednesday
February 6, returning on Thursday February 7.  I will be checking my
emails only intermittently while I am away.

If your matter is urgent, please contact Brad Crawford at
BCrawford@nbpower.com or 506-458-3520.

Thanks,

Stephen Waycott
Director, Corporate Regulatory Affairs
NB Power

________________________________
This e-mail communication (including any or all attachments) is
intended only for the use of the person or entity to which it is
addressed and may contain confidential and/or privileged material. If
you are not the intended recipient of this e-mail, any use, review,
retransmission, distribution, dissemination, copying, printing, or
other use of, or taking of any action in reliance upon this e-mail, is
strictly prohibited. If you have received this e-mail in error, please
contact the sender and delete the original and any copy of this e-mail
and any printout thereof, immediately. Your co-operation is
appreciated.
Le présent courriel (y compris toute pièce jointe) s'adresse
uniquement à son destinataire, qu'il soit une personne ou un
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reconnaissants de votre collaboration.

---------- Original message ----------
From: Scott Stoll <sstoll@airdberlis.com>
Date: Tue, 5 Feb 2019 22:20:20 +0000
Subject: Automatic reply: Re Matter 430 If NB Power wishes to attack
me at the last minute again they should at least notify me byway of
the correct email address
To: David Amos <david.raymond.amos333@gmail.com>I will be out of the office until Tuesday, February 12th, 2019.
During this time, I will have very limited access to email and
voicemail. I will endeavour to respond to emails during the evening.
If you require immediate assistance please contact my assistant Alison
Reynolds at (416) 863-1500 and she will direct you to the appropriate
lawyer.



---------- Original message ----------
From: David Amos <david.raymond.amos333@gmail.com>Date: Tue, 5 Feb 2019 18:20:13 -0400
Subject: Re Matter 430 If NB Power wishes to attack me at the last minute 

again they should at least notify me byway of the correct email address
To: david.sollows@gnb.ca, Paul.Volpe@enbridge.com, dave.lavigne@enbridge.com, Gilles.volpe@enbridge.com, jeffery.callaghan@mcinnescooper.com, 

gerald@kissnb.com, cstewart@stewartmckelvey.com, hanrahan.dion@jdirving.com,
lcozzarini@nbpower.com>, jfurey@nbpower.com, SWaycott@nbpower.com,
NBPRegulatory@nbpower.com, wharrison@nbpower.com, bcrawford@nbpower.com, John.Lawton@nbeub.ca, ecdesmond@nbeub.ca, Michael.Dickie@nbeub.ca,  

Dave.Young@nbeub.ca, Kathleen.Mitchell@nbeub.ca,  General@nbeub.ca, 

heather.black@gnb.ca, rdk@indecon.com, rrichard@nb.aibn.com, 

jeff.garrett@sjenergy.com, dan.dionne@perth-andover.com, pzarnett@bdrenergy.com

pierreroy@edmundston.ca, ray.robinson@sjenergy.com, sstoll@airdberlis.com,
Cc: motomaniac333@gmail.com

 

---------- Forwarded message ----------
From: David Amos <david.raymond.amos333@gmail.com>
Date: Tue, 5 Feb 2019 15:26:49 -0400
Subject: Re: FW: Matter 430- NB Power 2019/20 General Rate ApplicationTo: Mike.Holland@gnb.ca, David.Coon@gnb.ca, kris.austin@gnb.ca,
brian.gallant@gnb.ca,  blaine.higgs@gnb.ca, premier@gnb.ca,
andrea.anderson-mason@gnb.ca
Cc: motomaniac333@gmail.com, Nathalie.Drouin@justice.gc.ca,
jan.jensen@justice.gc.ca, Brenda.Lucki@rcmp-grc.gc.ca,
hon.ralph.goodale@canada.ca, washington.field@ic.fbi.gov,
Boston.Mail@ic.fbi.gov,Diane.Lebouthillier@cra-arc.gc.ca

---------- Forwarded message ----------
From: "Hon.Ralph.Goodale  (PS/SP)"<Hon.ralph.goodale@canada.ca>
Date: Tue, 5 Feb 2019 19:24:56 +0000
Subject: Automatic reply: FW: Matter 430- NB Power 2019/20