OEB Issues Guidance About Generic Proceedings

On December 13, 2022, the Ontario Energy Board (OEB) issued a Generic Hearings Protocol, setting out the factors that the OEB will consider in determining whether an issue should be determined through a generic proceeding. This will apply where an issue of broad applicability emerges in a utility-specific proceeding, and also where the OEB identifies a broad issue outside of a utility proceeding. A key difference between the outcome of a generic proceeding and a utility-specific application is that the generic proceeding determination applies to all impacted regulated entities, rather than solely to the named applicant.

At the OEB, a generic hearing is a process where the OEB itself files an application to review and determine an issue that impacts a variety of regulated entities. Recent examples of generic hearings include the EB-2021-0243 hearing to consider various issues related to Uniform Transmission Rates and the EB-2022-0094 hearing to consider price paid by rate-regulated natural gas distributors and their customers for natural gas produced in Ontario. Another well-known example is the EB-2016-004 Generic Proceeding on Community Expansion (Natural Gas).

The OEB’s Generic Hearings Protocol notes three key factors to consider when assessing whether an issue should be considered in a generic hearing.

• Broader Applicability – A generic issue is one that applies to multiple regulated entities. To determine whether a generic hearing is appropriate, it is necessary to look at whether more than one regulated entity is likely to file an application on the same issue, and whether the same facts/evidence would apply to each. It is also relevant to ask whether the generic issue is significant enough to justify a standalone generic hearing.
• Benefits of Broader Stakeholder Participation – It may be that there are benefits from the broader participation that occurs in a generic proceeding as compared to a utility-specific application. Generic hearings include opportunity for more participants – sometimes a party would be impacted by the determination of a generic issue but is not personally impacted by that issue within the service territory of the applicant and therefore does not participate in the utility-specific case. There may also be cost or regulatory efficiencies for a generic proceeding rather than multiple utility proceedings. 
• Impact on a Live Proceeding – Where the issue at hand is already being considered in a live proceeding for a regulated entity, and the question is whether to refer the issue to a generic proceeding, additional questions are pertinent. For example, it is important to know whether determination of the issue is interconnected with other issues in the utility proceeding such that it needs to be heard and determined there. Also, it is fair to ask whether the applicant in the live proceeding will be disadvantaged (at least in terms of timing) by having an issue moved to a generic proceeding.

The Generic Hearing Protocol notes that there is no current time cycle performance metric for generic hearings. However, the OEB will issue decisions in generic hearings within three months of the close of the record.

One item that is not addressed in the Generic Hearings Protocol is how the OEB will decide whether to address a broad issue through a generic hearing or by way of policy consultation. While both those approaches allow for stakeholder input, a generic hearing is more rigorous in that parties can submit and test evidence through a more formal hearing process. A policy consultation is often less formal in its structure.

The OEB’s cover letter issuing the Generic Hearings Protocol indicates that the regulator will continue to further improve the effectiveness and efficiency of its adjudication.