July 11, 2007
NOTICE TO: MARKET PARTICPANTS
Re: Court of Queen’s Bench Proceedings
In accordance with its mandate under the Alberta Electric Utilities Act (“Act”) and its MSA Investigation Procedures (http://www.albertamsa.ca/. - see Processes Section), the Market Surveillance Administrator (“MSA”) had previously commenced an investigation into certain importing activity in 2005.
In July 2005, the MSA provided guidance to the market on appropriate conduct on the intertie. Later in 2005, the MSA observed some behaviour involving ENMAX Energy Corporation and ENMAX Energy Marketing Inc. (collectively referred as “ENMAX”), which appeared to be contrary to the MSA intertie conduct guidance.
As a result, the MSA launched an investigation into the conduct. As part of its investigation the MSA interviewed a number of ENMAX’s employees. During the course of the interviews, the employees were advised not to answer a number of questions by the counsel for ENMAX. Pursuant to sections 55 & 56 of the Act, the MSA sought the court’s assistance in order to proceed with the normal course of the investigation.
ENMAX brought a cross application and asserted that the Act did not allow the MSA to ask the court to compel answers. ENMAX also asserted that any investigation must be kept absolutely confidential, including the name of the market participant and the information uncovered by the MSA in its investigation.
A decision was issued by the Court of Queen’s Bench on July 5, 2007 in respect to these applications.
The Honourable Justice A.D. Macleod in his July 5, 2007 decision concluded the MSA may engage the assistance of the courts to get cooperation from market participants and answers to reasonable questions and indeed the court may compel answers in support of the investigations that fall under the mandate of the MSA.
In the decision, the court noted that the Act, the regulations and the published policy of the MSA all reflect confidentiality at the investigation stage. The court held that “While in the past the MSA has exercised its discretion to keep the identity of market participants confidential, that ought not to be taken as a representation that it will never do so.”
Further, the court indicated that, “it is for the MSA to decide whether its mandate is best served by making information public.”
There is still the outstanding initial MSA application before the court asking assistance in compelling cooperation and responses to the MSA investigative questions.
The investigation into uneconomic imports is ongoing and it is the practice of the MSA not to comment on the detail of open investigations.
The MSA will provide further information about these matters as appropriate, in accordance with its mandate.
W.W. (Wayne) Silk
Vice-President, Chief Operating Officer