The Divisional Court has recently confirmed that the Ontario
Energy Board ("OEB") may order a party which has
contravened an "enforceable provision" to pay restitution
to those affected by the breach. The case involved retail energy
marketing but appears to support broad remedial powers across a
wide range of the OEB's regulatory mandate.
The Summitt Energy case
Summitt Energy Management Inc. v Ontario Energy
Board1 was an appeal of an OEB order against
Summitt with respect to its door-to-door sales activities. After
investigating complaints into Summitt's business practices, the
OEB held a hearing and found that Summitt was responsible for the
acts of five agents in respect of 43 contraventions of the
Ontario Energy Board Act, 19982 (the
Despite jurisdictional objections raised by Summitt, the OEB
granted relief which included restitution to complainant
customers.4 The OEB did not make a finding as to the
enforceability of the customer contracts, but rather relied on the
contraventions of the Act as the basis for restitution order.
Summitt was ordered to pay compensation in an amount equivalent to
the difference between the sums paid pursuant to the contracts and
prevailing prices, as well as interest and repayment of liquidated
damages paid for cancelation of customer contracts.5
One of the grounds which Summitt argued in the Divisional Court
was that the OEB did not have jurisdiction to grant the equitable
remedy of restitution in favour of complainants.
In making its order, the OEB had relied upon the Supreme Court
of Canada decision of Royal Oak Mines Inc. v Canada(Labour Relations Board)6 to hold that section
112.3(1)(a) of the Act gave it the jurisdiction to order an
equitable remedy. Royal Oak Mines considered whether the
Canada Labour Code permitted the Labour Board to order an
equitable remedy. It did not address restitution, but involved a
remedial solution to a labour dispute which included the imposition
of certain terms contained in a previous tentative agreement.
Summitt argued that Royal Oak Mines was distinguishable on
the basis that the Act does not expressly provide for jurisdiction
to make an equitable remedy.7 The Court disagreed.
Section 112.3(1)(a) of the Act permits the OEB to require a
person to "take any such action as the Board may specify to
remedy a contravention that has occurred". The Court stated
that, "[b]y any measure this is a clear and broad grant of
remedial powers".8 The Court went on to refer to
other authorities which relied upon the statutory purpose of a
specialized tribunal to substantiate broad jurisdiction to award
The Court's reasons on the restitution issue concluded with
a concise endorsement of the OEB's authority:
"In our view the Board had express authority under s.112.3
of the Act to "remedy a contravention" of any of the
enforceable provisions in issue, which the Board found had
occurred. The Board's interpretation of this authority to
include the specific remedial orders made in this case was a
reasonable one, based upon the Board's specialized expertise in
the regulation of retail energy marketing and is entitled to
deference on appeal."9
The Summitt v OEB order was upheld based on the
OEB's specialized expertise in the regulation of retail energy
marketing. However, the regulation of retail energy marketing is
merely one area of specialized expertise within the OEB's
If the Court's logic is broadly construed, the OEB has the
ability to make awards based on restitutionary principles in a
variety of circumstances. The provision relied upon by the OEB for
restitution to aggrieved retail customers is a general power to
remedy contraventions of enforceable provisions. An
"enforceable provision" is defined to include a provision
of the Act or its regulations, certain provisions of the Energy
Consumer Protection Act, 2010, a provision of the Ontario
Clean Energy Benefit Act, 2010, the regulations made under
these statutes, and other statutory provisions, licensing
provisions and board orders. As a consequence of this broad
definition, it is possible that restitution orders could be made
regarding many types of contraventions of the Ontario energy
The Court's reasoning also suggests that other types of
remedies could be employed where the OEB considers them appropriate
based on its specialized regulatory expertise.
1 2013 ONSC 318 [Summitt v OEB].
2 S.O. 1998, c. 15, Sched. B.
3Summitt v OEB at para. 24.
4Summitt v OEB at paras. 29, 30,
5Summitt v OEB at para. 81.
6  1 S.C.R. 369.
7Summitt v OEB at para. 83.
8Summitt v OEB at para. 84.
9Summitt v OEB at para. 87.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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