In an effort to coordinate their overlapping mandates, the two agencies charged with ensuring that Alberta power markets remain competitive have signed a Memorandum of Understanding (MOU) calling for continued and more defined cooperation between the agencies.
On March 3, 2014, the Competition Bureau announced that the Commissioner of Competition (head of Canada’s Competition Bureau) and the Market Surveillance Administrator of Alberta (MSA) have signed an MOU, implementing a framework for information sharing and enforcement cooperation and collaboration in matters of mutual interest among the agencies.
Under the Alberta Utilities Commission Act (AUCA), the MSA is responsible for ensuring Alberta’s energy markets are fair, efficient and openly competitive - a mandate that runs parallel to the overarching oversight of the Competition Bureau. The MSA is also obligated under the AUCA to notify the Commissioner of Competition or the Alberta Utilities Commission (AUC) of matters he is dealing with that also fall within their jurisdictions. Given the AUC’s broad power to make an order if it is of the opinion that a market participant has engaged in conduct that is “not in accordance with the fair, efficient and openly competitive operation of the market”, there is a possibility that the MSA can refer a matter related to anti-competitive practices to the AUC, leading to perhaps a duplicity of proceedings with the Competition Bureau. The MOU attempts to clarify the potentially overlapping investigative and enforcement roles of the two agencies, with the aim of reducing the risk of such duplication or inconsistency.
Under the new framework, the Competition Bureau and the Alberta MSA are obligated to notify each other, subject to their respective confidentiality obligations, with respect to a matter that is materially relevant to the other agency, and that could be carried out by the other agency under its mandate. The MOU also provides that the government agencies will work to keep each other informed of significant developments in competition law, market monitoring and other Alberta energy market developments of mutual interest. It further recognizes that mutual investigation, litigation or other enforcement action may be the most effective means of addressing conduct harming competition in Alberta energy markets.
The MOU is similar to Ontario’s 2002 Joint Agreement, which aimed to clarify the overall regulatory legal framework for competition oversight in Ontario’s electricity markets, within the regulatory framework that then existed.
Like the Alberta MOU, the Joint Agreement in Ontario provided that the agencies would consult with one another on a regular basis with respect to issues relating to competition oversight, and that each agency would notify the others at the earliest opportunity of matters likely to fall within the other’s jurisdiction.
The Joint Agreement went further than the Alberta MOU and outlined the potentially overlapping jurisdictions of not only the energy regulator (Ontario Energy Board, OEB), but also the systems operator (Independent Electricity Systems Operator, IESO), specifically laying out the agencies’ roles and responsibilities with regard to key competition matters where (a) each agency had jurisdiction, (b) the OEB and the IESO each had jurisdiction, (c) the OEB and the Competition Bureau each had jurisdiction, and (d) the OEB was refraining from exercising its jurisdiction.
At the time of signing the MOU with the Competition Bureau, the MSA signed another MOU with the U.S. Federal Energy Regulatory Commission (FERC), an independent public agency whose regulatory authority includes oversight of the transmission and sale of electric energy at the wholesale level in interstate commerce in the United States.