Why are Utility Advocates and Cameron Thomson (of all people) involved in these matters?

The title page of my June 2014 report—which was published (self-published, obviously) here on oebaccountability.com and then disseminated to a mailing list of about ninety (90) politicians, bureaucrats, and journalists—stated that “[t]he research presented in this report was commissioned by an independent, Toronto-based consumer advocacy firm.“The firm in question, as I made explicit in my last post was Utility Advocates, Inc. (UA).

In late April 2014, staff at UA contacted me and asked me to undertake a project for them: to draw media and so, too, public and political attention to the manner in which the Ontario Energy Board (OEB) had handled a formal complaint that UA had lodged with them in December 2013. I worked on this project, under contract to UA, during May and June, 2014. Why, then, have I continued to work on this matter—extending the scope of my questions and doing further, deeper research in hopes of finding answers—throughout the rest of this summer and up to the present? I stand behind the report that I authored. Yes, I was paid to do the work that led, ultimately, to my writing and disseminating it. But this paid activity was far from mercenary. I personally—I the author of my reportreally meant what I wrote in it. I really did come to believe that there was a serious problem with the execution of the series of MPMA/BPP/ONPA/OPG rebate programs that ran from May 1, 2002 to April 30, 2009—and I really did come to believe that UA’s December 2013 complaint about Direct Energy‘s treatment of two of their customers (in relation to the ONPA/OPG rebate program) really did speak to a matter that was, in fact, only the tip of a major iceberg (a point that UA made too in their complaint). I gave a detailed description of UA’s complaint and the OEB‘s mishandling of it in my report. But note—for this is so important—that my report embodied, among other things, a third-party complaint of my own. In it, I formulated a complaint about the OEB‘s serious mishandling of UA’s December 2013 complaint—a kind of meta-complaint, if you will. (My last post offers a summary of the multifaceted complaint embodied in my report. Note that my [sub-]complaint about the OEB‘s mishandling of UA’s earlier interaction with them was just one aspect of my critique.) In fact, UA did not commission me to write a report per se. All they asked of me was that I do what I could to draw attention to the way in which the OEB had handled the complaint they had submitted. I did this—I worked hard to draw attention to this matter—and, in the end, my efforts resulted in a long, detailed report. This outcome was not anticipated in advance; not by me and not by UA. But it is what happened. And, in the end, my report did not give expression to a perspective on these matters that was UA’s, specifically and exclusively. In fact, it did give expression to UA’s point of view; they stand behind my report as much as I do. But note, carefully, that it also gives expression to my own perspective, a point of view that emerged in the course of the work that led, finally, to the production of my report. Examining the circumstances described in UA’s December 2013 complaint, reviewing the OEB’s response to the latter, and digging deep into the public record—in search of clarity about the larger context, the big picture, the ultimate stakes—I was very disturbed by what I was finding. And so I came to care deeply and personally about the situation to which UA’s complaint had first adverted. I came to agree with staff at UA that, in fact, the OEB really had failed in their handling of the December 2013 complaint, that the circumstances described in that complaint really did warrant an investigation of Direct Energy‘s activities in relation to the MPMA/BPP/ONPA/OPG rebate programs and, too, that (for all the reasons set forth in my report) a wider, rebate-related investigation of Ontario’s whole electricity distribution and retailing sector really was in order. I said all of this in my report. But I didn’t “just say it.” I meant it. I really believed the claims that I was making. I still do. As I gained a deeper understanding of the circumstances surrounding and embodied in the series of MPMA/BPP/ONPA/OPG rebate programs that ran from May 1, 2002 to April 30, 2009—and as I made a closer and closer examination of the energy sector’s and the OEB‘s activities in relation to these programs—I became just as concerned as staff at UA about this situation. This concern is my main motivation now. And too—it must be said—UA’s concern for what is right and just; for what is best for Ontarians; for what is in the public interest: this is UA’s main motivation too. This is why, in my report, I stated that:

[UA’s] interest in this situation is almost entirely subsumed in the general, public one. [UA’s] motivation in retaining [me, the author of the report] was a deep frustration with the OEB, following a number of instances in which the latter had treated [UA’s] complaints ([i.e., third-party complaints] lodged on behalf of consumers [that is, UA’s own clients]) in (what seemed to be) a rather cavalier manner.

I also stated that:

Independently of any interest connected with their consulting business, [UA] had brought what they took to be obvious infractions, by Ontario utilities, to the OEB’s attention. The OEB more or less ignored them. If [UA’s] interest in this situation has a more parochial dimension, it is simply this: that having brought a matter of genuine public interest to the public’s attention, this will redound to their reputation as consumer advocates in a positive manner. Beyond this, [UA] is motivated by concerns that will be readily shared, upon reflection at least, by all Ontarians.

I could have—perhaps I should have—said more. In particular, this: that from the point of view of their business model, it is in UA’s interest the OEB not regulate Ontario’s energy sector in the public interest. Let me say that again: From the point of view of their business model, it is UA’s interest that the OEB not regulate Ontario’s energy sector in the public interest. By lodging complaints with the OEB whose upshot, if only the latter would really fulfill its mandate, would be an ever closer, ever more earnest and determined guarding of the public interest, UA is engaging in behavior that, from the point of view of their business model, is self-defeating. A major focus of UA’s business is the detection and recovery, after all—on their clients’ behalf—of monies owed (back) to them by utilities, by gas and electricity providers, by corporate entities, for example, like Direct Energy. UA detects and recovers such funds on a regular basis. But take note of this very important point: if the OEB were really regulating Ontario’s energy sector in the public interest—really doing that effectively, really succeeding at it—this part of UA’s business would simply evaporate into thin air. Staff at UA know this. And yet they lodge such complaints with the OEB. They have tried repeatedly to rouse the OEB to action in connection with cases of regulatory non-compliance that they have uncovered in the course of doing their work. In their December 2013 complaint they did not call upon the OEB to act in a manner that would benefit them, i.e., Utility Advocates—they acted, rather, as good corporate citizens, as businesspeople with an active conscience, as men and women with a burning concern, truly, for justice in matters that affect Ontarians more generally. And they called upon me to help them. And they paid me for my work, yes. And then I too, came to care about a situation to whose seriousness most Ontarians, our media, and our politicians continue to be blind. I’m working on that though. Here are some of the topics that I will cover in the coming days, as I continue to work on this issue.

  • My ongoing interactions with the Ontario Ombudsman’s Office and their recent promise of an intervention in the matter of my complaint to the OEB.
  • The developing story of my interactions with the IESO; my analysis of OPG’s annual MPMABPP/ONPA/OPG rebate figures and my request for a detailed, corresponding account, from the IESO of their disposition of those funds; and the IESO’s challenges around finding and collating the relevant records.
  • An account of my interactions to date with a number of political figures, together with a calling-to-account, here, publicly, of all those who have exhibited a truly shameful blankness and silence in the face of what I have asked of them (to have their staff review my report, to reflect on its claims and the evidence that I present there, and to offer some kind of response).
  • An account of my interactions to date with a handful of journalists—and a frank recounting of my struggle, thus far, to get any of them to see that, dauntingly complex though it be, there really is an important story here.
  • An account of my interactions with the Ministry of Finance—and of the sheer irresponsibility of staff there. An account, too, of my interactions with Ms. Meilleur, Ontario’s Attorney General, and, especially, her office’s patronizing, uncomprehending, lazy response to my correspondence with them.
  • An account of the futile outcome, so far, of my correspondence with two key, but seemingly irresponsible figures at the OEB, Karim Karsan (Vice President, Consumer Relations) and Rosemarie Leclair (President and CEO).

I continue to hope (stupidly perhaps?) that the sparks that I am casting out into the ether will, perchance, fall upon some tinder and catch fire.

A review of the complex complaint that was embodied in my June 2014 report and that was lodged with the OEB on June 27, 2014

Yesterday’s post claimed that the OEB had failed—in a particular connection—to fulfill its mandate and that this shameful situation is still ongoing.

This is not an idle generalization. My June 2014 report included a detailed description of a specific, concrete set of circumstances in light of which this assertion is obviously true.

Among other things, my report embodied a complaint, which was focused upon the activities of the OEB‘s Compliance and Enforcement Office, but which had wider implications as well. This complaint—as embodied in my report—was submitted to the OEB on June 27, 2014. Copies were sent, not only to staff in the Compliance and Enforcement Office and Consumer Relations, but to each and every Board Member (full- or part-time) and to the OEB‘s President and CEO, Rosemarie Leclair.

This complaint was a complex one—not in the sense that it was particularly deep or clever, but in the sense that it was comprised of several distinct parts. In today’s post I will review its four basic constituents.

1.

The first element of my complaint was an objection to the OEB‘s handling of another complaint.

The latter had been submitted to the OEB in December 2013 by a client (of mine—during May and June 2014), Utility Advocates, Inc. (UA), a Toronto-based consumer advocacy firm. In December of last year, UA’s lawyer had submitted a formal complaint to the OEB. In it UA informed the OEB of two specific instances in which Direct Energy (DE) had failed to comply with regulations governing the 2005-2009 ONPA/OPG Rebate Program. UA’s complaint was accompanied by documentary evidence that showed, with marked clarity, that this was so. More specifically, this evidence showed very clearly that in two instances DE had failed to remit rebate funds that were owing to their customers under the law—until this failure was been detected by UA and not before UA had brought considerable, and finally effective, pressure to bear on DE. The evidence showed, too, that when DE finally paid what was owing (their tardiness was, in itself, also plainly illegal), they failed to include the interest that was also owing to these customers under the law.

This same evidence supported the contention, moreover, clearly articulated in UA’s complaint, that a strong likelihood existed (and exists still) that other DE customers continued (and continue) to be in the position that UA’s clients had been in, vis-à-vis undistributed ONPA/OPG rebate funds still owing to them. UA made a formal request, then, that the OEB undertake an investigation of DE‘s activities in relation to the 2005-2009 ONPA/OPG Rebate Program, in order to ensure that DE had been fully compliant with the relevant regulations—and so that, if they had not been compliant, this situation might be addressed.

After an inordinately long delay, the OEB declined to take any action in regard to these matters. In my report, then, I complained that the OEB had erred in treating UA’s complaint as a matter of indifference; I showed, to the contrary, that UA’s complaint pertained to issues that were very important indeed.

2.

The second element of the complaint embodied in my report referred, in effect, to factors that ought to have exacerbated and heightened the OEB‘s perception of serious defects in DE‘s conduct, as reported to the OEB by UA—but either did not, or did so to no noticeable and effective degree.

My complaint here was that, prior to receiving UA’s December 2013 complaint about specific, concrete failings on DE‘s part, the OEB already had good reasons for investigating DE‘s record in connection with the ONPA/OPG Rebate Program. Indeed, they had these reasons for acting independently of UA’s complaint (see below for further elaboration).

I contended that this fact intensified and deepened their failure, then, with respect to their mandate, when the OEB—upon being presented with two instances in which DE really had illegally withheld rebate money from their customers—shrugged their shoulders, in effect, and (without explanation, for reasons that remain utterly opaque) declined to initiate the in-depth investigation that the evidence demanded.

The first of the reasons that, as I showed in my report, the OEB had for investigating DEprior to being presented with UA’s complaint and thus independently of it—was DE‘s history of non-compliance. Of course, the OEB was (and is) fully cognizant of this history. Much of it is documented (rather vividly at times) in news stories and commentary readily available online. But it is also recorded, in detail, in the OEB‘s own, publicly accessible regulatory documents.

The second of the OEB‘s independent, antecedently established reasons for investigating DE (and now too, indeed, other market participants) in connection with the ONPA/OPG Rebate Program was that the OEB was (and is) perfectly aware of the sector-wide confusion that attended its execution. This confusion, as I showed in my report, was such that the program cannot possibly have been executed in perfect conformity with the law. The Working Group of the OEB‘s EBT (Electronic Business Transfer) Standards Committee was responsible for developing the information-sharing system that was an essential prerequisite for the calculation, allocation, and distribution of the rebate (and, moreover, for the return of undistributed rebate funds to OPG). The OEB was also responsible for insuring that—once this system was in place—the rebate program really was executed within the parameters set forth. But the OEB did not clearly establish, disseminate, and secure a system by which all rebate-relevant information would have been accurately communicated among electricity retailers, distributors, and the IESO.

The OEB was directly involved in these circumstances and knew about this confusion. They had good reason for thinking, therefore—again, independently of UA’s documentation of two concrete instances in which it actually happened—that some of the ONPA/OPG rebate money had gone astray.

I have never claim that these “independent” reasons for investigating, which were implicit in the OEB‘s understanding of DE and the ONPA/OPG rebate program, were sufficient, in themselves, to generate an actual compliance file. Rather, I have argued that these antecedently established reasons for investigating, which were waiting in the wings, so to speak, ought to have been instantly catalyzed and rendered effective, by the introduction of UA’s documentary evidence.

In other words, when the OEB‘s prior knowledge of serious defects in DE‘s historical conduct and their prior knowledge of serious defects in the execution of the ONPA/OPG Rebate Program were taken together with the specific circumstances reported to them by UA, the OEB had sufficient reason for launching an investigation.

But instead, UA’s evidence was simply dismissed and treated as irrelevant.

3.

The third element of the complex complaint embodied in my report was that, in DE‘s case (at least), the OEB was coddling a market participant, to some extent at least, rather than properly regulating their activities. I showed that DE‘s history of non-compliance was not accompanied, as informed members of the public would expect it to be, by a corresponding history of genuinely deterrent and punitive sanctions. To the contrary, I showed that DE had never received more than a mild, non-punitive, unlikely-to-be-deterrent slap-on-the-wrist for any of its infractions.

I also showed that, when considering DE‘s periodic license renewal applications, the OEB did not allow reflection on the applicant’s past conduct to generate applicant-specific licensing conditions that would meaningfully constrain DE‘s future conduct. Such reflection, where it was in evidence, was markedly shallow and incomplete; where it had an impact on the conditions of DE‘s licensing, this impact was equally unremarkable.

I complained, in sum, that in DE‘s case, the OEB—to some extent and in practice, i.e., irrespective of (what I hope are) their good intentions—was regulating Ontario’s energy sector, not in the public interest, but in the interest of a private corporation.

4.

The fourth main element of the complaint embodied in my report arose from reflection on the fact that the two DE customers (UA’s clients) who had been deprived, for a time, of rebate money owing to them, were unaware that they had been short-changed. Until this fact was detected by UA, they knew nothing about it. I reflected that, given this circumstance and given the confusion that had beset the rebate program’s execution more generally, there was a strong likelihood that these two electricity consumers were not unique. There was a strong likelihood, in other words, that other consumers—customers not only of DE, but of other service providers—had been and remained in this very same position.

I complained, then, that the OEB was not fulfilling its mandate, to the extent that it was ignoring this strong possibility rather than investigating it. The OEB, I argued, had a responsibility to review the execution of the ONPA/OPG Rebate Program across the whole energy sector in order to insure (as UA had done for their two clients) that every last cent of the ONPA/OPG rebate money had ended up where the law stipulated that it ought to.

I presented my report and so, too, the complex complaint embodied in it, to the OEB on June 27, 2014.

They have yet to respond.

Let’s refocus: the OEB has failed to fulfill its mandate and continues to do so

Although all of my posts on this blog are closely related and pertain to a single narrative, it is time, I think, to take a few moments to refocus, to identify, once more, the central issue to which this blog adverts.

The original objective of this blog was to draw attention to some specific instances in which the Ontario Energy Board (OEB) had failed, and continues to fail, to fulfill their mandate – and to hold the OEB accountable for those failures in hopes that they would reassess their position and take a better path.

The OEB‘s official mandate is:

To regulate the province’s electricity and natural gas sectors in the public interest.

Obviously, the OEB does indeed regulate Ontario’s electricity and natural gas sectors. To do so is one aspect of their mandate – and it is an aspect that they really do execute.

The OEB does not always, however, regulate the provincial electricity and natural gas sectors in the public interest. And that is what I have contended in many of the posts on this blog. More importantly, I made this claim at length – and illustrated what I meant with concrete examples – in my June 2014 report.

When it comes to regulating Ontario’s energy sector, it is a relatively easy part of the OEB‘s task to frame regulations – to articulate imperatives and interdictions, in other words, which the OEB then addresses to various parties active in Ontario’s energy market.

I have had nothing to say – in the context of this blog – about OEB regulations as such; nothing to say, that is, about whether or not these are framed in a way that expresses the OEB‘s aim of protecting the public interest. I have had nothing to say, either, about whether or not OEB regulations are framed in such a way that they are likely to be effective in actually achieving this aim.

Instead, I have conceded, implicitly, that they are so framed; I have simply allowed that OEB regulations express the OEB‘s aim of protecting the public interest. I have conceded, too, that OEB regulations are framed in such a way that, if they were universally and consistently enforced, they really would be effective in achieving this aim.

I have proceed on the basis of this assumption, then, from the outset: when the OEB engages in that part of its regulatory activity that consists in framing regulations, the OEB‘s aim really is to promote and protect the public interest in energy matters.

I continue to work with this assumption.

Irrespective of how carefully-considered and well-framed OEB regulations are, however, the latter cannot achieve their purpose unless the parties to whom they are addressed actually comply with them. And it is a sad, but obvious fact about at least some, and perhaps all, of us (natural persons, as much as corporate ones) that full and ongoing compliance with the law can only be secured by way of the threat of sanctions.

Under the Ontario Energy Board Act, 1998 the OEB‘s regulations have the force of law. As such, they are accompanied by this threat – the promise, in fact, that punishments will be meted out to market participants that omit to do what the law requires of them, or that do what the law forbids.

When it comes to regulating Ontario’s energy sector in the public interest, then, the far more difficult (and unpleasant) part of the OEB‘s task is to monitor compliance with OEB regulations, to enforce the law by hold forth the threat of punishment for non-compliance and – where compliance is lacking – to enforce the law by subjecting offenders to fitting penalties.

At the very least, the purpose of such sanctions is to deter future non-compliance on the part both of the offending party and any other party that is cognizant of the offender’s infraction and the sanction with which it was met.

As I’ve argued elsewhere, however, it is in the public interest that members of the public have confidence in the OEB. And it is conducive to this confidence that sanctions be such, too, that members of the public area able to regard them as genuinely punitive. In other words, the monetary penalties and/or licensing conditions to which offenders in the energy market are subjected ought to be such that members of the public would regard them as manifestly burdensome to the offenders that suffers them.

Because they are neither deterrent, nor punitive, informed members of the public cannot regard mere slaps-on-the-wrist – i.e., penalties that in no way burden the financial, human, and other commercial resources of energy market offenders – as sanctions that fulfill the OEB‘s mandate.

Worse, however, informed Ontarians cannot regard instances in which the OEB does nothing in the face of non-compliance as instances in which the OEB fulfills its mandate.

To the contrary, instances in which the OEB is aware of a market participant’s non-compliance with the law – and in which the OEB does nothing – are instances in which the OEB fails to fulfill its mandate.

This is so on two fronts. The first is that when the OEB permits (and, especially, knowingly permits) a market participant’s ongoing non-compliance with regulations that are intended by the OEB itself (as per my earlier concession) to protect the public interest, this permissiveness is not in the public interest.

The second way in which the OEB‘s inaction in the face of non-compliance constitutes a failure with respect to its mandate is that the OEB‘s failure to act, in such instances, undermines public confidence in the OEB. But public confidence in the OEB is itself in the public interest. Both peace of mind and a vibrant economy are at stake here. Ontarians need to be able to trust that the OEB will act swiftly, in every instance, in the face of such things as carelessness, inadequate regard for the law, and outright predatory practices in the energy sector.

As I said above, this blog was never intended as a forum in which to address OEB regulations as such – to assess their substance or their effectiveness. Rather, this blog has been concerned, all along, with the quality and effectiveness of the OEB‘s compliance and enforcement activities – and, indeed, with these activities as they bear on some concrete instances – i.e., the very specific circumstances detailed in my report.

Given this narrow focus, this blog is not concerned with the OEB‘s activity generally, but with the activities of its Compliance and Enforcement Office specifically. It is in the activities of this division of the OEB, and in OEB management’s failure to respond to the allegations set out in my report, that the OEB can be said to have  failed – and to continue to fail – to fulfill its mandate.

Board Secretary Walli responds to my request for information on Direct Energy’s response to redacted Interrogatories in file no. EB-2014-0016

Last week, on August 14, I received a letter from Ontario Energy Board Secretary Kirsten Walli.

In it, I received an answer, finally, to my question concerning Direct Energy‘s missing response to the OEB‘s (redacted) Interrogatories in connection with file no. EB-2014-0016 (their application for the Gas Marketer license that was granted on May 29).

As readers of this blog will recall, I had asked both whether Direct Energy had actually responded (as promised here) and where, in that case, their response was, since it was not present with the rest of the file’s documents on the OEB‘s regulatory electronic submission web page.

Ms. Walli pointed out that the May 29, 2014 Decision and Order granting Direct Energy‘s Gas Marketer license had stated that they had replied on April 4. This, I already knew; I already knew what the Decision and Order said.

What I wanted to know was whether or not what the Decision and Order said (and what I understood its author, writing in all good faith, to take to be true) was actually so.

My reason for wondering about this had two aspects, one straightforward, the other more complex.

On the one hand, I wondered why—if Direct Energy had responded—their response was not present on the OEB‘s website. My expectation was that it would be there, but that the parts of the response that corresponded to the redacted Interrogatories would be themselves redacted. I did not expect to be able to read much of it, but I expected it to be present. Its absence from the website suggested the possibility—to me at least—that it did not really exist.

On the other hand, I wondered if perhaps Direct Energy had offered a response, but wondered, at the same time, whether or not this “response” would be regarded, by informed members of the public (such as myself), as a real answer to OEB staff’s (redacted) questions, or if it would turn out, upon review (say, by me), to be inadequate at best.

In that case, I would have to say something like this:

You can call this a “response” if you wish, but I don’t agree that it is one. And I do not believe that informed members of the public would see it as a real response either. To this extent, Direct Energy has yet to respond and their license ought not to have been approved.

Here is the scenario which I had in mind.

I wondered if perhaps the redacted Interrogatories had contained questions to which Direct Energy had been unable to offer a ready, plain, and timely response.

I wondered if further correspondence from Direct Energy did exist in connection with this matter—subsequent, that is, to both their March 28 request for more time to respond, and to their April 9 request for an extension of the term of their 2009 Gas Marketer license.

But I wondered if this additional, later correspondence would have counted, really, as a full and adequate response to the Interrogatories, or whether it would have been simply accepted as such, allowed to stand in for such—with a kind of shrug of their shoulders—by some members or other of the OEB. After all, the latter has shown repeatedly (as I demonstrate in my report) that it is unwilling or unable to view Direct Energy‘s cavalier disregard for the law with the gravity that their poor conduct merits.

I wondered—although I was not yet prepared to say it—whether Direct Energy‘s post-April 9 correspondence, if it existed, had been regarded as “good enough” by the relevant OEB staff, but was in fact so lackluster and inadequate that members of the public (and perhaps others at the OEB) would not regard it as a full and decisive response to the redacted Interrogatories (supposing, for the sake of argument, that members of the public, or other OEB staff, had seen these).

My thinking about this was influenced, not only by consideration of Direct Energy‘s past conduct, but (with great force, in fact) by a particular phrase in their March 28 request for an extension. In that correspondence, Ms. Mascioli had claimed that “[s]ome of the information requested is not readily available and therefore it is necessary for Direct Energy to sort through various documents in order to obtain the specific information required” (my emphasis).

What, I wondered, was this “information requested,” or this “specific information required“? What kind of specific information, so crucial as to be required by the OEB before the processing of Direct Energy‘s license application could move forward, was not “readily available“?

It is obvious that the questions posed in the redacted Interrogatories pertained to matters of real import. Why, given the great significance of the information required, would Direct Energy have to “sort through various documents” before they could answer questions about it? What did this “sorting through” consist? What did it mean that the required information was not “readily available“? Why wasn’t it? Ought it to have been? To what kinds of document was Ms. Masciolo referring?

Had Direct Energy succeed then in what was, apparently, a rather burdensome task? Had Direct Energy located the crucial, required information, even though it was not “readily available”? How had they gone about collecting it? Had staff at Direct Energy actually gone to the trouble of “sort[ing] through” those “various documents”? Had they managed, in the end, to “obtain the specific information required”? Most importantly, had they done all of this with real dedication, rigour, concern for completeness, and an earnest intention to fully and perfectly fulfill the OEB‘s requirement that they respond to those redacted Interrogatories—and really, substantively respond?

Based on my familiarity with Direct Energy‘s past conduct and their reputation, I doubted very much that there would be an affirmative answer to these questions.

And based on my familiarity with the OEB‘s historically too-often nonchalant, easy-going treatment (or outright disregard) of Direct Energy‘s reputation and past conduct when considering their license applications—I believed very strongly that some staff at the OEB would have accepted a jump-through-the-hoop on Direct Energy‘s part, a half-hearted, inadequate, partial, shabby, going-through-the-motions kind of response from Direct Energy, even though it was not at all the sort of response that informed members of the public would have expected and demanded.

I surmised that, in that case, post-April 9 correspondence from Direct Energy might well exist—and it might well consist in something that Direct Energy had hoped to see accepted as a “response” to those Interrogatories—but that, for whatever mysterious reason, that correspondence might not have been posted to the OEB‘s regulatory documents website.


And so I wanted to see Direct Energy‘s response. I wanted to see whether or not it showed signs of real seriousness and authentic hard work with respect to all of that “sort[ing] through” of those “various documents,” in search of that obviously crucial information that was not, however, for some reason, “readily available.”

I doubted that any such correspondence, if it existed, would show such marks of dedication on Direct Energy‘s part—and I still do.

For now, this doubt cannot be resolved. Direct Energy’s April 4 response to those redacted Interrogatories was, according to Board Secretary Walli’s letter, “filed in confidence.” And this means, obviously, that this response is not available to the public.


What next?

I still want to see those redacted Interrogatories; I still want to see Direct Energy‘s response to them.


Ms. Walli’s letter states that “[t]he final determination of whether or not information will be kept confidential rests with the Board.” And, Ms. Walli points out, I may still file a request with her to see what I want to see. If I do so, however, Direct Energy “will be given an opportunity to object to the request for access to that information”—and it is easy to predict how Direct Energy will respond. After that, it will be left to the OEB to decide how to proceed.

How much hope is there, however, that staff at the OEB will acquiesce and grant my request, rather than taking Direct Energy‘s part?

In her correspondence with me, Ms. Walli makes a claim that is of central importance in this regard. “The Board,” she writes, “will strive to find a balance between the general public interest in transparency and openness and the need to protect confidential information.”

It is clear that if I file a request to see those Interrogatories, along with Direct Energy‘s response to them, my argument for the fitness of my seeing them will have to make reference, in an integral way, to “the general public interest,” specifically, “in transparency and openness.”

Something to think about.

I’m thinking about it already.

An appeal to past and present Direct Energy electricity customers

As readers of this blog know, my recent research has focused, fundamentally, on Ontario Energy Board (OEB) oversight of the conduct of companies like Direct Energy (it is the mandate of the OEB to regulate such companies and to do so, at all times, in the public interest).

As I continue to look into this matter, Direct Energy is proving to be a more and more illustrative instance of the kind of challenge that faces the OEB—a kind of challenge with which the OEB does not seem to be very good at dealing. In short, the specific relevance of Direct Energy is coming more and more to the fore.

And so, as my project goes on developing, I am beginning to wonder whether or not there are Ontarians out there who paid Direct Energy for electricity during the period from May 1, 2002 through April 30, 2009—and who would be willing to share their old bills (and copies of their contracts) with me. Standards of confidentiality and my plans for any evidence that I unearth would be made explicit to you, of course, in advance.

If there are past or present Ontario-based Direct Energy customers out there  who would be so willing, your assistance might help me to put a sharper point on my research results.

Naturally, I am willing to make my goals and my motivation for this somewhat opaque request clear first.

For starters, please have a look at the series of posts on this blog and, especially, the report that I published here back in June. For specifics, however, please contact me by email at cthomsonrwc@gmail.com.

As you will see from this blog and from my report—if you have not gathered as much already—my work here bears on the OEB’s oversight of the MPMA/BPP/ONPA/OPG rebate program(s) that ran from 2002-2009 (the period mentioned above), which was/were intended to mitigated the impact on Ontarians of the “opening up” of the electricity market in May 2002.

By way of providing focus and concreteness for its claims about the OEB‘s oversight of the energy sector, my earlier report looked at their licensing, compliance, and enforcement activities in relation to Direct Energy‘s past, problematic conduct and, especially, as this related to conduct that came under the rules of the provincial government’s electricity rebate strategy.

If you are interested in helping, or in further interaction with me on this topic, please feel free to email me at cthomsonrwc@gmail.com.

I continue to await an answer to my simple question

Once staff at the OEB have formulated their response to my report—and once they have taken any necessary action in relation to the results of their review—will they share their response and the nature of that action with me?

This straightforward question remains unanswered, in spite of my repeated attempts to elicit a response from the OEB.

It has been nearly four weeks since I received that really disappointing July 18 “status update” from the OEB’s Manager of Consumer Relations, Nancy Mintz.

As I mentioned in another post, I wrote her once more on July 27. In that second email, I pointed out that status updates are typically offered in lieu of the final statement of an assessment, result, outcome, or whatever.

But her most recent email did not seem, at all, to be a status update in this sense—in it, in other words, Ms. Mintz gave no indication at all that further communication would be forthcoming.

This is why, in my July 27 email, I asked Ms. Mintz—very clearly, I think—if I could expect to hear from her, or her colleagues, again once OEB staff had finished their review of the complaint(s) embodied in my report and once the “appropriate action” to which she referred had been undertaken.

Or—I asked her—would her latest email be the last one that I would receive from her and her colleagues in connection with the matter at hand?

As I reported earlier, I followed up my latest email to Ms. Mintz, by writing to her supervisor, Karim Karsan, on July 28.

I informed him that on July 10 Ms. Mintz had promised me a “status update” concerning the OEB’s review of the complaint that my report had leveled against the OEB’s Compliance and Enforcement Office.

I told Mr. Karsan of Ms. Mintz’s promise that I’d have this update no later than July 18. I explained, too, that on that date I received no more than a very formulaic email from her, which contained little of substance. I told Mr. Karsan that the email appeared—to me— to be a mere brush-off.

I let Mr. Karsan know that this was why I was reaching out to him. Because he is the OEB’s Vice President of Consumer Services, I said, I hoped that he could assure me that Ms. Mintz’s most recent email would not be the last I would hear from the OEB about their action in relation to the issues I had raised.

I have heard nothing further from Ms. Mintz, nor anything at all ever from Mr. Karsan.

The latter’s utter silence is particularly troubling, not just because I have written to him several times (and not just in connection with Ms. Mintz and the “status update”), but because in her August 1 letter to me, Rosemarie Leclair (OEB Chair & CEO) informed me that she had instructed him to be in touch with me.

In that letter, Ms. Leclair assured me that OEB staff were now “reviewing the concerns that [I had] raised regarding the handling of OPG rebate funds by electricity licensees.” She assured me that this review would be “done methodically and on a timely basis.” And she assured me that, when it came to my report’s findings on “the handling of complaints” by the OEB, she had discussed these with Vice President Karsan and had asked him “to contact [me] to follow up on that element of [my] Report.”

I continue to wait for any word from Mr. Karsan—in spite of my having let him know, on August 7, that I know that the Chair & CEO of his organization had asked him to contact me and to follow up on the OEB complaints-handling aspect of my report.

And I continue for an answer to the simple question that I had posed, originally, to Nancy Mintz.

When the OEB has formulated its ultimate response to the issues raised in my report, and once the OEB has taken whatever action it will take in regard to them, will the OEB share that response with me and will they let me know what this action has consisted in?

In my response to Ms. Leclair’s August 1 letter, I assured her that I was not asking, as she seemed to think I was, “to be kept apprised of the status of staff’s work on this matter,” that is, on an ongoing basis, each step of the way, and so on.

And I assured her that I understood that if this response and action were embodied, finally, in an enforcement proceeding of some kind, then I would have access to the public documents associated with such processes—and would not, therefore, require any special communication from the OEB.

However, I asked Ms. Leclair, if no such proceeding were to develop out of the OEB’s review of the issues I’ve raised, would there not be, even so, some way in which—all within the limits of the Ontario Energy Board Act, 1998 and Freedom of Information and Protection of Privacy Act—the OEB could let me know what had transpired and what difference, finally, my work had made?

Surely, I asked Ms. Leclair, there will be some way in which, when the time comes, the OEB will be able to give me an overview, at least, of the results of their review of the complaint(s) encapsulated in my report.

The OEB might be able, for example, to let me know whether or not they were able to confirm that every last penny of the OPG Rebate money that was passed from OPG, via the IESO, to Ontario distributors, was either remitted down the line to eligible consumers or returned OPG.

This latter point, I reminded Ms. Leclair in my response, is of crucial importance to me and to other Ontarians.

And so I asked her, as I had already asked Ms. Mintz and Mr. Karsan, to please confirm that, when the OEB review was complete and when the OEB had taken (or perhaps commenced) whatever action the OEB was going to take—they would share an overview of the basic details, at least, with me?

I asked this simple question, now of Ms. Leclair, back on August 1. And I’ve had nothing but sheer silence since then.

Update on my request for a copy of Direct Energy’s Response to OEB Interrogatories in case no. EB-2014-0016

Well, I have had no reply, after several requests, to my query about Direct Energy‘s missing response (which Ms. Joanne Mascioli had promised by 04/04/2014) to the Ontario Energy Board‘s heavily redacted Interrogatories in case no. EB-2014-0016.

As I pointed out in my initial emailed request, Direct Energy‘s most recent Gas Marketer license was approved – and so one must assume that their response was received.

Why, I wonder, would OEB staff refuse even to acknowledge my question concerning the actual existence of Direct Energy’s response and the whereabouts of the letter, from them, in which that response would have been recorded? It ought to be among all the other documents, here. But it is not.

I feel very strongly that something is amiss here.

This is no mere continuation of the “complaint” (as embodied in my report) that the OEB is, even now, supposedly “reviewing,” etc. This is yet another, new issue bearing on our ability, as Ontarians, to rely upon the OEB to fulfill their mandate.

Does the OEB exist to coddle private corporations like Direct Energy, or do they exist to regulate, supervise, investigate, and penalize them, as required – in addition to helping to create a business atmosphere in which, within the ambit of the law, such companies may find success?

I want to see Direct Energy’s response to those Interrogatories. Heck – I’d love to see the Interrogatories themselves!

Digging Deeper

As I continue to wait for responses from both the OEB and the Ministry of Finance (both of which government bodies claim, at least, to be working on something) – I couldn’t help but dig deeper.

It seemed obvious to me that the issues that I’ve raised in relation to the OPG Rebate Program of May 1, 2006 – April 30, 2009 (and sometimes including the ONPA Rebate Program of April 1, 2005 – April 30, 2006) might well be raised in connection with the those programs’ antecedents.

I have had a good look at earlier meeting minutes of the OEB’s EBT Standards Working Group and I am convinced that, taken together with this, this, and my earlier research (see especially pp. 32-41), there are very good reasons for thinking that a significant amount of the $5,414,000,000 in rebate money that was remitted by OPG to the IESO in 2002-2009 is still floating around “out there.”

But where? And how much? And who knows about it?

I plan to write up the argument that remains merely implicit – and likely too obscure for some – in what I’ve written above (two paragraphs back). Watch for it, right here.

In the meantime, I want to make something very clear: I will not be satisfied, now, with a response that does not speak to the whole series of programs (or rather, the one program, renamed and tweaked a couple of times) that was in effect from May 1, 2002 through April 30, 2009. The public money associated with the period from May 2006 through April 2009 is just a drop in the bucket compared to the whole amount.

The whole point of the OPG rebate(s) was to mitigate the consequences of deregulation – which would otherwise have been crippling – on Ontario electricity consumers.

Ontarians have a right to know that all 5.414 billion of those dollars, intended – whether directly or indirectly – to benefit them, were properly allocated and distributed. The whole program was rather convoluted and a mess in practice, but the program’s intent was clear and straightforward.

My questions pertain to whether or not the intent of the rebate legislation was achieved. Perhaps it was not.

But if the reason that this aim was not achieved turns out to include, among other constituent factors, the disappearance of some significant complement of that OPG Rebate money – well that would be something worth knowing and talking about (remember this?).

What of the $5,414,000,000 (yes, billions) in rebate money that was disbursed from OPG to the IESO in 2002-2009?

My ongoing research suggests that the questions I’ve already posed can and ought to be asked concerning the entire $5,414,000,000 (yes, billions) in rebate money that was disbursed from OPG to the IESO in 2002-2009.

These funds were disbursed under a series of closely related programs, referred to (not always consistently) as the:

  • MPMA (May 1, 2002 – April 30, 2003)
  • BPP (May 1, 2003 – March 31, 2005)
  • ONPA (April 1, 2005 – April 30, 2006)

and

  • OPG (May 1, 2006 – April 30, 2009)

rebate programs, respectively (if you want to know what the acronyms stand for, just ask).

Of course, the OEB never had jurisdiction over the further disbursal of these funds by the IESO, down the line, to Ontario electricity distributors and retailers and so on to eligible Ontario consumers.

But they were responsible for developing and clarifying information-sharing-systems without which the allocation and disbursal of the funds would have been incomplete and inefficient, at best, and impossible, at worst.

The OEB was also responsible for seeing to it that every last electricity distributor and retailer in Ontario complied fully with the terms of these programs.

My research shows that the OEB failed ever to clarify the process whereby rebate money was to be allocated and disbursed.

How can the OEB have succeeded, then, in making absolutely sure that every last cent of the MPMA/BPP/ONPA/OPG rebate money that was passed down the line via the IESO:

(1) either made it to eligible consumers

(2) or was returned to the IESO and so, finally, to OPG (really, to the Ministry of Finance, via the OEFC)?

What happened to those $5,414,000,000? I want to know—down to the last penny.

Don’t you?

I have already documented two concrete instances in which a major retailer of electricity, here in Ontario, failed to remit rebate money to two Ontario consumers—until this failure was detected by a third party and not before the latter brought great pressure to bear on the service provider.

In these two cases, at least, rebate money was neither remitted to eligible consumers, nor returned to OPG. Rather, until action was taken in connection with it, this rebate money was simply floating around in the coffers of a private energy corporation.

I want to know whether or not these two troubling, documented instances are unique, or whether or not they are the tip of a very scary iceberg. Is other money out there, too, simply floating about—or, rather, earning interest for parties that have no right either to the capital, or to that interest?

If an answer to these questions interests you too, please support the cause, either by following this blog, or by following on Twitter, or by joining the Facebook group.

Consider writing an email about this matter to the OEB‘s Chair and CEO at rosemarie.leclair@ontarioenergyboard.ca.

Update on my Participation in the OEB’s Consulation on the Effectiveness of Part II of the Energy Consumer Protection Act, 2010

Well, in spite of the fact that I was late with my acceptance letter, the OEB has registered me as an interested participant in the Board’s review of Part II of the Energy Consumer Protection Act, 2010 (see my last post for the context).

It would be really useful if I were to get some substantive feedback on my report before the consultation takes place (this Fall sometime).

It would be particularly helpful if interested parties were to engage with me around ways of focusing my recent research in terms of the consultation’s subject matter.

If you have ideas or suggestions, I’d love to hear them. Please feel free to email me at cthomsonrwc@gmail.com or call me at (647) 746-8278.