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If the decision-maker itself appoints — and thus can control or influence — one of the key parties, then the adversarial process is no longer open and transparent. It is one where the adjudicator can tell a “party,” behind closed doors, what to advocate or what not to advocate. If the OEB appoints a lawyer as the consumer advocate, the OEB would be that lawyer’s client. Such an advocate would actually represent no one, and thus would have no legitimacy. This whole hearing process could therefore be called a fake hearing. Such hearings are subject to the risk that any affected consumer group denied the right to participate in the public hearing could bring a judicial-review application to set aside the process and the resulting decision.

This whole hearing process could therefore be called a fake hearing

If the OEB wishes to restrict representative public participation in public hearings, the more legitimate approach would be to stop holding so-called public hearings altogether. The OEB could then close its doors to the public and issue its decisions from behind closed doors. There is no room in a democratic society, where government is subject to the rule of law, for a government agency to conduct counterfeit public hearings.

However, the current Ontario government has recently amended its electricity legislation to take away much of what was left of the OEB’s ratemaking independence. Therefore, the honest approach for the Ontario government would be to close the OEB entirely. If the OEB cannot make rate decisions at arm’s length from government, via a genuine adversarial-hearing process, how can that serves the public policy purpose of transparency and accountability? Transfer its key staff into the ministry and let the decision be seen for what it is increasingly becoming: a political decision, informed by some modest bureaucratic review. That way the minister couldn’t blame or hide behind the OEB for escalating electricity prices.