June 13, 2022
As we explained in an earlier article, judicial review is a process by which courts supervise the decisions of administrative bodies, to make sure that the decisions are fair, reasonable, and consistent with the law. It is generally available where there is no appeal of the decision, and the standard of review differs from an appeal in that on most judicial reviews the question is whether the decision was fair and reasonable not whether it was correct.
Not everything done by a Board is an administrative decision which is subject to review. Because of the power of judicial review, it is important to be able to understand the difference and distinguish when judicial review is available.
This was clarified in the case of West Whitby Landowners Group Inc. v. Elixicon Energy. The Divisional Court declined to review two letters issued by the Ontario Energy Board (“OEB” or “Board”) responding to requests from the landowners group. The letters related to a complaint by the landowners as to whether a project undertaken by the distributor was an “enhancement” (the cost of which is paid by all customers) or an “expansion” (which would result the passing on the cost of building infrastructure to the landowners). In both letters, the board took the position that the project was an expansion. The parties had earlier agreed to have the OEB resolve the issue prior to the project commencing. Their agreement provided that the decision by the Board would be final and binding, with no right to appeal.
Where there is no right to appeal, there might still be a right to judicial review.
The landowners claimed that the Board ought to have held a formal hearing, that the process was unfair and that substance of the opinion was unreasonable.
The court agreed with the distributor and the OEB that this opinion was not given pursuant to a statutory power of decision. The opinion was provided to allow the parties to resolve their dispute, which arose from the agreement of the parties, not the statutory powers of the Board.
The distinction depends on the interpretation of section 105 of the Ontario Energy Board Act which provides in part that the Board may “make inquiries, gather information and attempt to mediate or resolve complaints, as appropriate…”.
This power is distinct from the Board’s power to hold a hearing under section 112. Nothing in the facts of this dispute gave either party a right to request a hearing. The right to a hearing is only triggered if the Board proposes to issue a notice of non-compliance. Otherwise, a decision to hold a hearing is in the Board’s discretion. Since no notice of non-compliance was in issue in this dispute, no hearing was required.
The second ground alleged by the landowners goes right back to the meaning of statutory powers. The court reviews several earlier authorities to determine that a statutory power must involve a decision which has a “public character”. As this dispute was a private dispute between the two groups involved, it did not have that necessary public character.
The landowners had no statutory right to have their dispute resolved in any particular manner, and thus no right to challenge the process chosen by the Board, or the result.
Although this decision is technically only about the statutory scheme governing the OEB, and the agreement in this situation, the reliance by the court upon analogies to cases in other areas of administrative regulation indicates that this distinction is not limited to only the OEB.
If the landowners had contemplated that the decision ought to be reviewable or appealable, they ought to have provided different and clearer language in their agreement.
If you are participating in the electricity or energy fields, you deserve the advice of a firm like Weilers LLP. Our lawyers have been involved in most aspects of the electricity market in Northwestern Ontario, from policy to planning to implementation, with all the necessary consultations, negotiations, and agreements at each stage. Please give us a call if you want to avoid a nasty shock down the line.
Weilers LLP can also help you with a wide range of issues involving other administrative decision making.