Today, the Ontario Standing Committee on Government Agencies interviewed and then voted a majority in favour of the government’s proposed slate of three new Ontario Energy Board (OEB) part-time members. It is a welcome precedent to see the Ontario Legislature playing an active role in the appointment of such important public officials. Many billions of public dollars hang on the decisions of these people. The appointments are expected to be officially announced later this week.

I first reported on the upcoming three part time appointments on May 24, but at the time did not have the names. I have argued repeatedly on this site that the Ontario Energy Board needs strong, full-time members unencumbered by conflicts of interest.

The official summary bios for the new members are attached to this post.

Dr. Elsayed’s official summary and also his official Application Form Summary from the records of the Public Appointments Secretariat and also his testimony today neglects mention that he is one of two advisors to the JSG Group, an executive search firm. JSG Group is partnered with MEARIE in providing executive search services. MEARIE is a company formerly known as the Municipal Electric Association Reciprocal Insurance Exchange. The board of MEARIE is entirely composed of Ontario electric distribution utilities. Although MEARIE is a company, it is something of a trade association for Ontario’s electricity distributors as well. MEARIE is interconnected organizationally with the Ontario Electrical Distributor’s Association (EDA).

Dr. Elsayed’s business association — whether active or recent — with an executive search firm serving the regulated electric utilities in Ontario raises a number of questions. How he can participate in Board decision making related to executive compensation or Ontario’s electricity distributors?

I have previously expressed concern about the close association of OEB chair Rosemarie Leclair with her former regulatory priorities while on the EDA board of directors. I have also noted previously that the chair of the Board nominates candidates for appointment to the Board. In this context, questions about the appropriateness of Dr. Elsayed’s role reflect on the judgement of the OEB chair and the government.

Dr. Elsayed’s bio is clear that he played a key role in the initiation of the Niagara Tunnel project. This project has suffered severe delays and cost overruns. This project is coming before the Board for review in 2013. Normally, one would expect that Dr. Elsayed would recuse himself from matters related to that review, but these days one cannot be sure. The committee was not inclined to seek his assurance.

A colourful moment in the Standing Committee proceedings was when France Gélinas, NDP member for Nickle Belt, lectured Jerry Farrell on the mandate of the Ontario Energy Board. Mr. Farrell was lead counsel for utilities for 30 years appearing before the Ontario Energy Board and is not known for slipping up in his grasp of the Board’s mandate.

When invited to endorse a sweeping declaration that regulation and public interest interventions in particular are a lot of costly red tape that needs streamlining, I was struck by the response of Ellen Fry. Ms. Fry remarked that considerations of fairness should be prominent in the regulator’s mind. To explain her point, she noted as an example that sometimes effective regulation requires adequate time. Both cheery notes.

(Official Government Bios for New Board Members)

EMAD ELSAYED Ph.D., P.Eng

Emad has had a long and successful career with Ontario Power Generation before leaving in 2009 to pursue part-time consulting. He has held senior executive positions where he was responsible for the planning and execution of multi-billion dollar infrastructure projects aimed at increasing OPG’s hydroelectric generation capacity. Emad also led the planning and initial execution of the Niagara Tunnel Project. His last assignment at OPG was leading a large multi-disciplinary team which participated with the Ontario Government to select a reactor technology and preferred vendor for the design and construction of a multi billion dollar new nuclear plant. Emad will bring expert first-hand industry knowledge and experience to his role on the Board.

JERRY FARRELL J.D, B.A.
Jerry is former partner then counsel with Fraser Milner Casgrain in Toronto.  Jerry has focused his practice on energy law for over 30 years.  His practice involved both the commercial and regulatory areas of the energy industry. Jerry has been recognized as a leading practitioner of Energy Regulatory Law in Best Lawyers in Canada and several other Canadian and American legal directories. During his career Jerry has appeared as counsel in more than 140 regulatory proceedings before the National Energy Board, the Ontario Energy Board and the Alberta Utilities Commission. Jerry brings a deep understanding of legal and regulatory issues underpinning the energy industry today.

ELLEN FRY  L.L.B., MBA
Ellen is an Ottawa-based lawyer who also holds an MBA. As a member of an independent quasi-judicial tribunal (Canadian International Trade Tribunal) over a 9 year period, Ellen adjudicated approximately 400 highly complex cases involving business, economic and trade regulation. As former Director of Legal Services for Environment Canada, Ellen was involved in environmental assessment and regulation affecting aboriginal communities. Her diverse and expert knowledge of administrative law principles together with well honed adjudicative skills will be a valuable asset to the Board.

Post Script:

The government announced the appointment of corporate lawyer Christine Long from the firm Borden Ladner Gervais as a full-time member on June 15th.  The BLG web site reports her representative work as:

• Counsel to corporations and utilities on regulatory and corporate issues.
• Provides commercial and regulatory advice to solar, wind and other energy developers.
• Negotiates energy supply contracts, connection agreements, metering and service agreements.
• Provides advice to clients on issues pertaining to the IESO Market Rules including connection, participation and compliance issues.
• Provides advice in relation to the Ontario Feed-In Tariff (“FIT”) program to developers and distributors.
• Advises clients making application to the Ontario Energy Board (“˜’OEB”) on licensing requirements, service area amendment applications, rate applications, and various other regulatory matters.
• Represents clients in Leave to Construct Applications before the OEB for the construction of transmission lines and transmission facilities.
• Advises clients with respect to National Energy Board requirements for the exporting of electricity.

Post Script November 28, 2013: I way incorrect in claiming that the June 2013 appointments to the OEB were the first to be reviewed by the Ontario Legislature.