Smile, You’re on Camera: Alberta Environmental and Regulatory Hearings During COVID

 By Sean Parker, Cesar Agudelo and Marika Cherkawsky

Since the onset of the COVID pandemic and implementation of various workplace and other restrictions, we have learned to adapt as we serve our clients. While not without its challenges, our lawyers and staff have embraced the various procedural and other modifications initiated by the courts and regulatory tribunals in Alberta.

Our Energy, Environmental and Regulatory practice group has gained significant experience in navigating the modified processes for things such as filings, virtual hearings and online etiquette. As we enter a new year with continued modified processes, the discussion below outlines some noteworthy procedures applicable to regulatory matters.

Filing and Other Procedural Changes

Court of Queen’s Bench

Since March 30, 2020, the courthouse has restricted in-person access. As 2020 progressed and the Court moved to online filing and hearings, in-person access was further discouraged. Now parties, especially those represented by counsel, must file online unless it is necessary to file a hard copy, in which case parties must use the drop boxes provided by the Court. It appears that filing at the clerk’s desk is now limited to unrepresented litigants.

There are a number of specific requirements for online filing with the Court, but they can be grouped in two major categories:

1. Emails must follow naming conventions. These change depend on the type of filing and it is best to contact counsel or follow the instructions available at this link.
2. Documents must follow certain formats, including the requirement that each filed documents be sent as a separate, “bookmarked” PDF, rather than in one large scan.

Once a document is filed, the court clerks will return the filed copy with an electronic stamp. Processing times vary, but the date of filing should reflect the date in which the document was sent, unless it was submitted after 4 p.m., in which case it will have the next day’s date. Although this is the general process and the Court has made substantial efforts to adapt, the system is not perfect. In our experience, at times it has taken several weeks or even months to have filed documents returned. This can create issues, for example, when facing a limitation period and a filed copy of the document is needed in short order. Accordingly, we recommend submitting documents for electronic filing well in advance of any deadlines to avoid problems.

In addition, when making an application to be heard by a Master or a Justice in chambers, a draft order providing the relief sought must be submitted along with any documents that may be referenced or relied on during the application. This may include your pleadings, previous affidavits as well as the application and the affidavit in support. In essence, you must provide all documents relevant to the application at the same time so they can be uploaded for the hearing and the Master or a Justice has them at her fingertips. At in-person hearings, there was often an opportunity to pass documents up to the Master or a Justice. That is not possible at an online hearing and consideration should be given as to what documents and information may be required.

Additional information on filing and other requirements can be found on the Court of Queen’s Bench website by following this link.

Alberta Utilities Commission

Following the first lockdown, the Alberta Utilities Commission (“AUC”) closed its offices in Calgary and Edmonton and its employees began to work from home. Part of its response also involved deferring all public hearings until further notice. Since then, the AUC has exercised its discretion under Rule 001: Rules of Practice and the Alberta Utilities Commission Act, to hold its hearings orally or in writing and begun to schedule virtual oral hearings or hearings by written submission only. The written hearing process provides parties an opportunity to file written evidence and written argument.

Since March 2020, the AUC has issued notice of written hearings for twelve proceedings and notice of virtual oral hearings for three proceedings. Information on online hearings including scheduling and other matters can be found on the AUC website by following this link, under the “Impacted Proceeding Timetable” tab.

The COVID-19 response also involved interim changes to the AUC participation involvement program (“PIP”) and related information requirements. These changes include:

• The principles of effective PIP set out in appendixes A1 and A2 of Rule 007 and in Section 2 of Rule 020 continue to apply with two important adjustments:
• First, project proponents must give stakeholders a minimum of 30 days to receive, consider and respond to project notifications.
• Second, proponents are discouraged from implementing face-to-face consultations, and should not engage in public open houses or town hall meetings. Electronic means of communication for consultation purposes are recognized and encouraged.
• The Commission has indicated the project proponents should recognize the challenges Indigenous groups may have at this time and adapt practices and timing accordingly.
• Facility applications will not require applicants to provide mailing labels for stakeholders until further notice. Instead, proponents must file an Excel spreadsheet with their application that lists stakeholder contact information with columns for name, company name, address 1, address 2, province, postal code, and country.

Alberta Energy Regulator

The Alberta Energy Regulator (“AER”) announced moderate changes to its operations and continued to respond to energy related incidents 24 hours a day. A deferral of certain reporting and monitoring requirements was implemented in the spring of 2020, however those obligations resumed on July 15, 2020. Since March 17, 2020, meetings with stakeholders and oral portions of hearings have been held virtually.

Of note, the AER’s virtual hearings have been live-streamed on their YouTube channel. To see how this process works, the recent hearing on the Grassy Mountain Coal Mine Project can be viewed in the following link.

Canada Energy Regulator

The Canada Energy Regulator (“CER”) moved all oral portions of hearing to a virtual format, and meetings with CER staff are being held via videoconference or conference telephone. The CER continued to conduct verification activities, though modified to comply with social distancing requirements. In terms of filing, the CER encouraged e-filing and postponed the filing of hard copy documents until further notice. Additional information on the CER’s current procedures can be found at the following link.

Other Regulatory Tribunals

Some regulatory tribunals have not announced special COVID procedures of general application for their proceedings. For example, the Environmental Appeals Board and the Public Lands Appeal Board appear to be taking a case-by-case approach and have been holding hearings online or by written submissions only.

Courtroom and Hearing Etiquette

One of the most significant changes to environmental and regulatory proceedings spurred by the pandemic restriction is the move to virtual hearings. This new format presents some challenges, but it may have also ushered welcomed and long-awaited changes to the way courts and regulators conducted hearings.

As mentioned above, one notable change was the public streaming of the AER hearing for the Grassy Mountain Coal Project on YouTube. Public broadcast of hearings is not something new in Canada, for example Supreme Court hearings have been televised for several years. A significant difference, however, is that the recent online broadcast of hearings held on a video conference platform such as Zoom often gives the public access not just to what is being said, but also to the documents being presented.

Given that hearings such as the one for Grassy Mountain would have typically been held at a location near the project site, the new online format may have the effect of increasing accessibility, and likely reduced travel costs and other expenses. There is support to maintain changes such as this beyond the pandemic.

Along with advantages of reduced costs and increased accessibility, there are still challenges with conducting legal proceedings by videoconference.

First, a good internet connection is key. These hearings use a lot of bandwidth due to the number of participants and video streaming. It may not be uncommon for there to be 10 or 20 hearing participants all on the videoconference at the same time.

Second, it is important to invest in good audio-visual equipment. As some of our lawyers have experienced, headphones and computer cameras that we rarely used before the pandemic, have now become important tools of the trade. Some of us have gone through a number of headphones to find the right one and to ensure there is little feedback and the microphone neatly captures the speaker’s voice without background noise.

Third, and related to the second point above, where you decide to sit and what you wear for your virtual hearing can affect the effectiveness of your submissions. Sitting in a room with a loud HVAC or against bright lighting can negatively affect your appearance. Court reporters rely on a clear sound and visual cues to capture what is being said. Further, it is recommended to wear solid, understated coloured clothing to prevent odd appearances that may occur on the videoconference platform. Ensure that you are in a location where you will not be interrupted, there is little to no background noise, and you have good lighting that clearly shows your face. This will help the decision maker understand your submissions and keep the record clear.

Fourth, virtual hearings require that you prepare your documents ahead of time, and that you know exactly which page numbers you will reference. Depending on the type of hearing, the party presenting may be in control of the documents, or someone else may be. In Court, for example, the party making submissions may be able to share their screen with the Court.

In the recent Grassy Mountain hearing before the AER, however, the videoconference host had control of the documents. In these situations, it is advisable to discuss with the host ahead of time the documents that will be referenced so they can have them open and ready to share.

Furthermore, keep in mind that many of the documents that are shared in virtual hearings are in PDF format. Accordingly, it is important to be clear about which pages are being referenced as the page numbers on the document may not match the PDF number. Also, tabs for exhibits are not as easily followed unless “bookmarked” in the electronic document.

Finally, it is advisable to do a dry run before the hearing. Test your equipment and location, check that everyone has the same electronic documents and page numbers, and check and double check the specific procedures of the hearing.

For additional information on how to prepare for your virtual hearing, contact Sean Parker in Edmonton, Michael Barbero in Calgary or another member of our Energy., Environmental and Regulatory Practice Group.