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EB-2017-0022/0223 in the MATTER of the Ontario Energy Board Act

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EB-2017-0022/0223 in the MATTER of the Ontario Energy Board Act EB-2017-0022/0223 IN THE MATTER OF the Ontario Energy Board Act, 1998; AND IN THE MATTER OF Notice of Intention to Make an Order for Compliance and Payment of an Administrative Penalty against Active Energy Inc. (ER-2012-0045). ACTIVE ENERGY INC. (ACTIVE) COMPENDIUM FOR ARGUMENT GOWLING WLG (CANADA) LLP Suite 1600, 1 First Canadian Place 100 King Street West Toronto, Ontario M5X 1G5 Ian A. Mondrow (32382D) Tel: 416-369-4670 [email protected] EB-2017-0022/0223 Active Energy Inc. Compendium for Argument INDEX Description Tab No. Transcript Volume 2, Excerpts 1 Schmidt v. Ontario 2 Canada Information Commissioner v. Canada Minister of National Defence 3 Energy Consumer Protection Act, Excerpt 4 Maynes v. British Columbia 5 Enforcement Team Opening Statement, Excerpt 6 R. v. McIntosh 7 Wilson v. British Columbia 8 Active Opening Statement, Excerpts 9 Hansard Excerpts 10 Transcript Volume 2, Excerpts 11 Sullivan on the Construction of Statutes 12 Active Opening Statement, Excerpts 13 Transcript Excerpts 14 Transcript Excerpt and Energy Shop Letter 15 Richard v. Time Inc. 16 Kazimierczuk and Pembridge Insurance Company 17 EB-2017-0022/0223 Active Energy Inc. Compendium for Argument TAB 1 Transcript Volume 2, Excerpts ONTARIO ENERGY BOARD FILE NO.: EB-2017-0022 Active Energy Inc. EB-2017-0223 VOLUME: 2 DATE: December 8, 2017 BEFORE: Christine Long Presiding Member Cathy Spoel Member Michael Janigan Member 14 1 the type of customers who need ECPA protections, 2 or are these the type of sophisticated business 3 consumers that are savvy enough to operate 4 without ECPA protections." 5 Mr. Stedman, can you comment on Mr. Safayeni's 6 characterization? 7 MR. STEDMAN: Yeah, I do not agree that customers that 8 are above 150,000 kilowatt-hours need ECPA protection. 9 Let me start with farmers. When you are dealing with 10 customers that are those farmers that are below 150,000 11 kilowatt-hours, you are talking about farms that basically 12 have one or two buildings, they may have a few acres, a 13 couple of cows, horses, or what have you. That's what you 14 are talking about when you are dealing with that size of 15 low-volume consumer. 16 When you are dealing with customers that are larger, 17 above 150,000 to anywhere to 600 and 700,000 kilowatt-hours 18 in the instance of farms, you are talking about operations. 19 You are talking about farms that have -- tobacco, for 20 example; that could be one to two million pounds of 21 tobacco. You're talking about livestock, like chickens, 22 100, 150,000 chickens that are being produced, you have a 23 lot of acreage, you also obviously need a lot of employees 24 to help you with the operations that are there. 25 These customers, these farms, are very sophisticated 26 people. They have to buy -- procure a lot of different 27 products for their animals and for their farms. They 28 obviously have to enter into a lot of negotiations in ASAP Reporting Services Inc. (613) 564-2727 (416) 861-8720 15 1 regards to that procurement and negotiations in regards to 2 selling their products. So these are very sophisticated 3 buyers out there. 4 On the other three points here, mechanics, you are not 5 talking about a, you know, a two-bay store that you see 6 going down the street; you're talking about multiple 7 locations. The same with bowling alleys. I don't know why 8 there is a reference to Chinese restaurants, but we do have 9 a lot of restaurants. 10 You are talking about not just one building, one 11 restaurant, one bowling alley, you are talking about 12 multiple locations, two, seven, ten type of locations. You 13 are talking about these business owners that are very 14 sophisticated. Again, they are buying products, they are 15 buying food for their products. They have to employ a lot 16 of employees to wait tables and cook and so forth. And 17 they are business-savvy, because they have expanded. They 18 have moved -- we are not talking about one restaurant or 19 one bowling alley. Again, we are talking numerous 20 establishments, so that is why they are much more business- 21 savvy when you are dealing with them. 22 When you deal with sophisticated customers like this, 23 they have a certain demand and expectation from you. They 24 expect to be consulted. So they don't want a door-knocker. 25 They don't want somebody like that. They want somebody to 26 come in, experience, take them through what the business is 27 doing. 28 Our consultants that we deal with have to be working ASAP Reporting Services Inc. (613) 564-2727 (416) 861-8720 16 1 at that level. They are not trained to do just sales, they 2 are trained to understand the market and how the market is 3 traded in the business. 4 So they go in and do consulting with these people, 5 they take them through their portfolio, they work through 6 their budget, they work through their risk management 7 programs that they may or may not have. 8 A lot of these deals are done not in one meeting. 9 There could be numerous meetings. It could take months to 10 close a deal. 11 There's also the -- when you are dealing with these 12 people, they are also looking at getting a wholesale price. 13 They don't go on to somewhere like the Energy Shop site and 14 sign up at 3.6 cents a kilowatt hour. They are going to 15 come to you and ask you to get a wholesale price that are 16 being offered out there in the marketplace to people like 17 TD Banks and that type of -- they know the economics of 18 scale of what they have, and they expect that size, that 19 pricing. 20 They also expect to get products out there that 21 basically you can't get under a normal low-volume consumer. 22 They want products that are off-peak, on-peak type 23 products. They want to have the ability to sign a portion 24 of their portfolio. 25 So they are very sophisticated, and they want to be 26 able to sign something like that with us. They also want 27 to be able to negotiate terms and conditions. They go into 28 the details about renewals and credit and so forth, and ASAP Reporting Services Inc. (613) 564-2727 (416) 861-8720 17 1 they want to have the ability to do that. 2 So these are very sophisticated people that we deal 3 with above 150,000 kilowatt-hours. 4 MR. MONDROW: Thank you, Mr. Stedman. 5 Mr. Waddick, I'd like you to look a little further 6 down, the same page of the transcript, and my notes say, 7 starting at line 23 -- this is still Mr. Safayeni's opening 8 statement. And I want to read in a couple lines and ask 9 for your comments. 10 Mr. Safayeni says: 11 "Those kind of sophisticated corporate customers 12 with dozens or hundreds of locations are a 13 fraction of the types of customers that we see in 14 the contracts in this case. They are the 15 exception, they are not the rule." 16 Can you comment on that, please? 17 MR. WADDICK: Yeah, I would like just to make a couple 18 of comments on that. First of all, I guess if you just 19 look at the math of the statement, the 101 customers that 20 we are talking about today have about an average of ten 21 utility accounts per customer. But I would like to address 22 a couple of the implications that are being made in that 23 statement. One of them is certainly the implication that 24 if a customer does not have dozens or hundreds of accounts 25 that they are somehow not sophisticated. 26 As Mr. Stedman has just talked about, that's not the 27 case. They are sophisticated purchasers. We're dealing 28 with the senior people there, negotiating these contracts ASAP Reporting Services Inc. (613) 564-2727 (416) 861-8720 EB-2017-0022/0223 Active Energy Inc. Compendium for Argument TAB 2 Schmidt v. Ontario Schmidt v. Ontario (Ministry of Natural Resources), 2008 ONCJ 442, 2008 CarswellOnt... 2008 ONCJ 442, 2008 CarswellOnt 5564 2008 ONCJ 442 Ontario Court of Justice Schmidt v. Ontario (Ministry of Natural Resources) 2008 CarswellOnt 5564, 2008 ONCJ 442 In the Matter of Michael Schmidt (Applicant) and Ontario Ministry of Natural Resources (Respondent) P. Kowarsky J. Heard: September 22, 2008 Judgment: September 22, 2008 Docket: None given. Counsel: Alan Ryan for Ministry of Natural Resources Michael Schmidt for himself Subject: Public Related Abridgment Classifications Health law III Provincial matters III.1 Health insurance programmes III.1.g Miscellaneous Statutes II Interpretation II.3 Rules of interpretation II.3.a Object and purpose Headnote Health law --- Provincial matters — Health insurance programmes — Miscellaneous Statutes --- Interpretation — Rules of interpretation — Object and purpose Table of Authorities Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1 Schmidt v. Ontario (Ministry of Natural Resources), 2008 ONCJ 442, 2008 CarswellOnt... 2008 ONCJ 442, 2008 CarswellOnt 5564 Statutes considered: Health Protection and Promotion Act, R.S.O. 1990, c. H.7 Generally — referred to s. 1(1) “person” — considered s. 18(1) — considered Interpretation Act, R.S.C.
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