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From: Dey, Debbie [mailto:ddey@foglers.com] On Behalf Of Brett, Thomas
Sent: November-14-12 2:38 PM
To: BoardSec
Cc: Kristi Sebalj; Colin Schuch
Subject: EB-2011-0354: Procedural Order No. 5 - Hearing on Procedure on Cost of Capital; Submission of the Building Owners and Managers Association ("BOMA")

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Dear Ms. Walli,

In Procedural Order No. 5, the Board stated that:

"The Board will require a presentation of the Joint Written Statement at the oral hearing. At the hearing, the experts for both Enbridge and the Consortium will appear together as a concurrent expert witness panel for the purposes of answering questions from the Board and other parties, as may be permitted by the Board, and providing comments on the views of the other experts on the same panel.

As this is a new process at this Board, the Board is inviting all parties to file submissions with respect to the most appropriate procedure for the oral hearing of the concurrent expert witness panel in light of the objectives of the Board as expressed herein and in Rule 13A of the Board's Rules." (our emphasis)

BOMA is making these submissions in response to the Board's invitation.

While the Joint Statement was to have been filed with the Board and circulated to all parties by Friday, November 9th, BOMA only received the statement at 3:30 p.m. yesterday. Accordingly, it has been impossible for BOMA, in a timely manner, to respond to the Board's invitation.

BOMA has received copies of letters from Enbridge (Mr. Cass) (Tuesday, noon) and Mr. Shepherd (last Friday evening), respectively. It did not receive copies of CME's and CCC's materials until late yesterday.

Mr. Shepherd's letter deals mainly with the need to know the content of the Joint Statement in order to make suggestions on the most appropriate procedure for the oral hearing. Like Mr. Shepherd, BOMA's submission is focused on preserving BOMA's rights to procedural fairness in the process. BOMA represents a very large constituency of Enbridge customers.

Given the unfortunate procedural glitches, I have not had the opportunity to closely examine the substance of the entire document, unlike Enbridge and the subset of intervenors that sponsored Dr. Booth's evidence. As noted above, I did not receive the document or otherwise have the opportunity to be appraised of its contents until yesterday at 3:30 p.m. However, I have examined it enough to note:

(a)       the very limited areas of agreement among the experts; they agreed on virtually nothing of substance;

(b)       the inordinate length and repetitive nature of the statement;

(c)       the substantial reiteration of positions already taken; the process seemed to exacerbate the difference among the experts;

(d)       the fact that some of the points discussed are not matters requiring expert opinions (eg. what is the Board's policy) or are matters of law;

(e)       the tendency of Mr. Coyne and Ms. Lieberman to use the occasion to enhance and extend their arguments, initially made in the evidence.

My most important recommendation is, that if the experts' panel is to be allowed to proceed to a hearing, in its current form at all, all parties, not just the "sponsoring parties", or a representative thereof, should have the opportunity to cross-examine or "question" those experts "adverse-in-interest" on the panel, on their evidence in the proceeding, including the comments they have made in the "Experts' Statement". It would be a gross breach of procedural fairness to restrict cross-examination or "questioning" of Enbridge's experts to certain intervenor parties. BOMA has invested substantial time and effort to prepare a cross-examination of Concentric, which we believe would be of assistance to the Board.  The cross-examination is informed in part by my substantial exposure to, and familiarity with, US energy regulatory law and practice. I am reasonably certain that some of BOMA's cross-examination will cover areas not covered by other cross-examinations.

An alternative would be to set aside the report of the experts' conference at this time, and return to the traditional format, whereby each of Enbridge, each intervenor, and Board staff would have the opportunity to cross-examine the expert witnesses on separate panels. The Board would then ask questions of the panels, as they do generally.

Regards,

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Tom Brett

Partner

Fogler, Rubinoff LLP

95 Wellington Street West, Suite 1200

Toronto, Ontario M5J 2Z9

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Direct Line (416) 941-8861

Fax (416) 941-8852

tbrettHYPERLINK "mailto:tbrett@foglers.com"@foglers.com

HYPERLINK "http://www.foglers.com"www.foglers.com

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