As discussed in
another post, the Supreme Court of Canada recently issued a
decision in Ontario (Energy Board) v. Ontario Power Generation
(OEB v. OPG). While much of the attention being paid to
that decision relates to the ratemaking issues that were discussed
and determined, there is also an interesting administrative law
issue addressed by Justice Rothstein, who authored the majority
decision. This issue, which was raised by OPG, relates to the
proper scope of a regulator's participation in an appeal or
judicial review of the regulator's decision.
Often, the role of a regulator in seeking to defend its own
decision on appeal is somewhat unseemly. This is especially the
case where the result of an appeal may be to return the case to the
regulator for re-hearing. In that scenario, one cannot help but
feel that there will be an institutional bias against the applicant
when the case is re-heard.
This is the context for the issue raised by OPG as to whether
the OEB acted impermissibly in pursuing its appeal in this
After reviewing appellate decisions and commentary that have
previously addressed the question of a regulator's standing on
an appeal of its decision, Justice Rothstein dismissed that issue
as a concern in this case. He noted that the OEB was entitled by
its own statute to participate in the appeal, and then stated that
the role to be played by the tribunal whose decision is being
appealed should be determined by a principled exercise of the
discretion of the Court that first hears the appeal. Justice
Rothstein suggested that three factors are relevant in informing
the Court's exercise of its discretion:
(i) where the appeal would otherwise be unopposed, the reviewing
Court may benefit from the tribunal's participation;
(ii) where there are other parties available to oppose the
appeal or review, and they have the necessary knowledge and
expertise to fully advance their positions, then there is less need
for the tribunal's participation; and
(iii) where the tribunal is one that serves a policy-making,
regulatory or investigative role (as compared to an adjudicative
role between two adversarial parties), then there will be less
concern about the impartiality of the tribunal arising from the
tribunal's participation in the appeal.
Taking these factors into account, Justice Rothstein concluded
that it was not improper for the OEB to participate in arguing in
favour of the reasonableness of its own decision on appeal. There
were no active parties supporting the OEB's decision at the
original appeal, and the OEB has a broad mandate and should not be
seen to be biased by participating in an appeal of a decision
involving a regulated utility that regularly appears before the
Having determined the question of whether the OEB should have
participated in the appeal, Justice Rothstein then considered
OPG's contention that the OEB had improperly raised new
arguments on appeal to support the original decision. This is
referred to as "bootstrapping." Justice Rothstein
explained that the principle of finality operates to prevent a
tribunal from using an appeal or judicial review as a chance to
introduce entirely new reasons to supplement its previously
deficient decision. Justice Rothstein stated that while a tribunal
may advance arguments on appeal that interpret or expand on its
decision, or that explain established policies and practices, it is
not permissible for a tribunal to raise entirely new arguments on
In the circumstances of the OEB v. OPG case, Justice Rothstein concluded that the
OEB did not impermissibly step beyond the bounds of its original
decision in argument on appeal. However, Justice Rothstein did
caution the OEB, and other tribunals who argue in favour of their
own decisions on appeal, to adopt a respectful tone, and not
descend into aggressive partisanship. Otherwise, there may be
reason to doubt the future impartiality of the tribunal.
A more detailed
analysis of this administrative law issue is authored by
Professor Paul Daly, Associate Dean and Faculty Secretary at the
Faculty of Law, Université de Montréal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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