Shifting from Impartial Decision-Maker to Adversarial Opponent: Tribunal Standing on Judicial Review in Ontario Energy Board v Ontario Power Generation
In Ontario (Energy Board) v Ontario Power Generation, 2015 SCC 44 [Ontario Energy Board], the Supreme Court of Canada (“SCC”) ruled that the Ontario Energy Board (“OEB”)—a provincial statutory regulator of electricity and natural gas—properly denied Ontario Power Generation (“OPG”) its proposed rate hike on the basis that the increase was not “just and reasonable.” This result was heralded by some as a “victory for consumers,” and according to Glenn Zacher, counsel for the OEB, “reinforces the role of the Board in future appeals against its decisions.”
Although this decision is particularly noteworthy for those involved in the energy sector, it also has wider implications for administrative tribunals across the country. This article will unpack the SCC’s assessment of whether the OEB acted properly in pursuing the appeal, argue in favour of the reasonableness of its decision, and speculate as to what litigators and administrative decision-makers should expect going forward.
The OEB is a statutory body charged with regulating utility rates in the province. Its mandate is to “protect the interests of consumers with respect to prices and the adequacy, reliability and quality of electricity services” (Energy Board Act, 1998, SO 1998, c 15, s 1), achieving this objective in part by fixing energy rates “as it finds to be just and reasonable” (s 78(1)).
OPG is “Ontario’s largest energy generator”—a Crown corporation, with a workforce mostly made up of unionized employees. As a result of collective bargaining in 2009, OPG claimed that its operating costs had dramatically increased. Consequently, it applied to the OEB for a rate increase in 2010, which would have seen its revenues grow by 6.2%. This was denied by the OEB, which found the proposed rates to have been unjust and unreasonable—particularly since OPG was overstaffed and had excessive compensation levels (Ontario Energy Board, para 32). Indeed, the OEB’s original decision was intended “to send a clear signal that OPG must take responsibility for improving its performance” (Ontario Energy Board: EB-2010-0008, Decision With Reasons, March 10, 2011, 86). This was upheld on appeal by a 2-1 majority of the Divisional Court, 2012 ONSC 729, but was later reversed by a unanimous Ontario Court of Appeal, 2013 ONCA 359.
Before the SCC, the OEB raised two issues: first, the appropriate standard of review; and second, the reasonableness of its decision to disallow OPG’s recovery of its operating costs through the proposed energy rate increase. Having first determined the standard of review to be that of reasonableness, Justice Rothstein for the majority found that the OEB did not act unreasonably in determining whether it would be “just and reasonable” to compensate OPG for its increased operating costs by means of the rate increase. Writing for herself, Justice Abella dissented.
The decision in Ontario Energy Board, along with its companion case, ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2015 SCC 45, will likely have an important influence on the energy and resource sector across the country. Such an analysis is, however, beyond the scope of this article.
An Administrative Tribunal’s Standing on Review
Particularly astute observers will notice that the respondent in this case is actually the administrative decision-maker that rejected the appellant’s rate increase request in the first place—that which intuitively raises certain procedural concerns. Because this was raised by OPG as a preliminary matter, the SCC undertook a review of the appropriate role of the OEB on review before moving on to assess the merits of the case. The aims of this ensuing analysis will be to unpack Justice Rothstein’s decision on this point and to better understand its implications for administrative tribunals going forward.
The Tribunal’s Impartiality and Fairness
A tribunal’s standing on judicial review of its own decision raises a number of important issues relating to the fair administration of justice. Writing for a unanimous bench, Justice Rothstein carefully reviewed the jurisprudence, highlighting the tension between the need to maintain the tribunal’s impartiality on one hand, and the “importance of having a fully informed adjudication of the issues before the court” on the other (Ontario Energy Board, para 48; citing Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner) (2005), 75 OR (3d) 309 (CA), paras 32, 37 [Goodis]).
On the first point, a tribunal’s impartiality is called into question when it becomes a party to the review of its own decision—a consideration explicitly addressed by the SCC in Northwestern Utilities Ltd v City of Edmonton,  1 SCR 684 [Northwestern Utilities]. For the Court, Justice Estey noted that the tribunal’s active (and even aggressive) participation would have the unavoidable effect of discrediting its impartiality. This would be a particularly significant concern if the matter was to be referred back to the tribunal, or if the other parties/stakeholders are ever required to appear before it going forward. This concern was echoed by Justice Stratas in Canada (Attorney General) v Quadrini, 2010 FCA 246, paras 17-18 [Quadrini].
To put it differently, the shift from an administrative tribunal’s role as impartial decision maker to that of an adversarial opponent can undermine the integrity of that tribunal’s decision-making. To preserve as much as possible its impartiality, Justice Estey affirmed that courts ought to “limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to making representations relating to jurisdiction” (Northwestern Utilities, 709 [emphasis added]).
On the other hand, considerations of fairness militate in favour of increased tribunal involvement on judicial review, particularly because “[its] submissions are just as likely as the parties’ to help the reviewing court do justice” (Noel Semple, “The Case for Tribunal Standing in Canada” (2007) 20 Can J Admin L & Prac 305, 309). Indeed, because administrative tribunals oftentimes have specialized jurisdiction or expertise in niche areas of law, their submissions on review “may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area” (CAIMAW v Paccar of Canada Ltd,  2 SCR 983, para 52 [Paccar]). These submissions, which are vital to ensuring a fair and just outcome on review, may be difficult (if not impossible) for other parties to present.
This consideration is intensified where there is no natural opponent to the party challenging the tribunal decision—particularly where the tribunal is fulfilling a regulatory (and not adjudicative) function. In these cases, the tribunal will be required to fill the role of adversary on review, and its submissions will be essential to ensure that the court has heard “the best of both sides of a dispute” (Ontario Energy Board, para 54; see also Goodis, para 32).
Although a tribunal’s standing on review has traditionally been limited (see Northwestern Utilities), Justice Rothstein observed that appellate courts are increasingly displaying “a more relaxed attitude in allowing tribunals to participate in judicial review proceedings or statutory appeals in which their decisions are subject to attack” (Ontario Energy Board, para 46). This trend instead favours a contextual, flexible, and discretionary approach, at the expense of fixed and rigid rules that would limit the tribunal to certain categories of submissions.
A review of administrative law in Canada underscores the benefits of such an approach. With over 700 tribunals across the country, a “one-size-fits-all” approach would surely fail to take into account special considerations unique to certain categories of decision-makers and to the nature of specific disputes. The considerations of impartiality and informed adjudication play out differently in particular contexts with different tribunals, and a standardized approach can have the ultimate effect of distorting fairness and leading to an unjust result. However, Sara Blake notes that “courts across Canada are widely divergent in their views,” with some being particularly strict in denying standing and others being more lenient (Administrative Law in Canada, 5th ed (Markham: LexisNexis, 2011), 192).
With this in mind, the SCC was faced with the age-old task of balancing the competing values of stability and flexibility in the common law. In striking such a balance, Justice Rothstein recognized the importance of according a great amount of independence to reviewing courts in adopting a contextualized approach to standing. However, he nonetheless provided subsequent decision-makers with sufficient structure to ensure a degree of consistency and predictability. With reference to Northwestern Utilities, Paccar, Goodis, and Quadrini, Justice Rothstein distilled three important considerations that ought to inform a court analysis of the tribunal’s standing on review:
- If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.
- If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.
- Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal serves an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns (Ontario Energy Board, para 59).
In short, the SCC’s decision on this point is a positive one, giving future decision-makers sufficient guidance on striking the proper balance between certain competing values, while nonetheless preserving the court’s ability to ensure the fairest outcome in any given context.
Bootstrapping, and the Substance of the Tribunal’s Submissions on Review
A second consideration before the SCC relates to the actual substance of the tribunal’s submissions on review. Although a tribunal may have the right to defend its decision on review, should it be limited to defending its original reasons for judgment?
On one hand, there is the principle of finality, which operates so as to bar a tribunal from amending, varying, qualifying, or supplementing its reasons (see Quadrini, paras 16-17). In allowing a tribunal to raise new arguments that were not addressed at first instance, the court runs the risk of skewing the process, surprising the other party, and leading to a process that is perceived as unfair by those involved. On the other hand, courts have also recognized the value in hearing new arguments—which would “serv[e] the interest of justice insofar as it ensures that a reviewing court is presented with the strongest arguments in favour of both sides” (Ontario Energy Board, para 76; see also Goodis, para 42).
Recognizing the merits of both these considerations, Justice Rothstein opts for a middle ground approach; a proper balancing is struck “when tribunals do retain the ability to offer interpretations of their conclusions and to make arguments implicit within their original reasons,” without going so far as to offer novel or unexpected arguments (Ontario Energy Board, paras 76-77). Administrative tribunals should take particular note of this holding when drafting their reasons. Although they may have the opportunity to defend its decision on review, the rules against bootstrapping underscore the importance of reasoned and well-written original decisions, capable of withstanding judicial scrutiny.
The SCC’s decision in Ontario Energy Board has important implications for the management of the energy sector. However, its discussion of the tribunal’s standing on review is equally noteworthy, in bringing much-needed clarity to difficult questions that have troubled lower courts. Going forward, one can only hope that this decision will be followed consistently, ensuring that all positions are properly accounted for in the interests of fairness and justice.