Back to all blog posts

Posted in: Practice & Procedure | Ontario

Feb 12, 2020

In Post-Vavilov Decision, Ontario Divisional Court Confirms Importance of Deference to OEB’s Expertise

By David Stevens

On January 31, 2020, the Ontario Divisional Court released a decision in Planet Energy (Ontario) Corp. v. Ontario Energy Board. This appears to be the first time that an Ontario court has considered how the Supreme Court of Canada’s recent decision in Minister of Citizenship and Immigration v. Alexander Vavilov (the Vavilov decision) will impact appeals under the Ontario Energy Board Act (OEB Act).

As we described in an earlier post, the Vavilov decision confirmed that there will be a presumption that reasonableness is the applicable standard whenever a court reviews an administrative decision. However, the majority decision from the Supreme Court found that this presumption is rebutted where there is a statutory right of appeal. Vavilov states that where the legislature has provided for a statutory right of appeal from an administrative decision, a court hearing such an appeal will act like an appellate court reviewing a lower court decision.

In the Planet Energy (Ontario) Corp. v. Ontario Energy Board appeal, the appellant argued that the OEB had no jurisdiction to order an administrative penalty for reasons of timing. In this statutory appeal, the Divisional Court was asked to determine the interpretation of subsection 112.5(2) of the OEB Act, which imposes a time limitation on the imposition of an administrative penalty. This timing issue had not been raised at the hearing before the OEB, but the appellant argued that the Divisional Court could determine the issue as a “pure issue of law.”

The Divisional Court declined to determine the timing issue, primarily because the appellant had not raised that issue before the OEB and therefore the issue had not been determined by the OEB. The Court highlighted that the appellant’s position that the Divisional Court could determine the timing issue at first instance “ignores the fact that the [OEB] is an expert and highly specialized tribunal that can assist the Court in the exercise of statutory interpretation by providing context and a consideration of the impact of various interpretations.”

An important message in the Divisional Court’s decision is that even after the Vavilov decision, a court will still show appropriate deference for decisions made within the scope of an administrative tribunal’s specialized expertise. When reviewing the determinations made by an experienced and expert tribunal such as the OEB, the court will respect the specialized function of the tribunal and will be assisted by the tribunal’s own articulation of why it has made the determination being reviewed.

Areas of Expertise

Related Categories

Related Blogs

Posted in: British Columbia | Facilities | Practice & Procedure

Insights EnergyInsider
Supreme Court of Canada Confirms B.C. Cannot Stop Trans Mountain Expansion By David Stevens Jan 17, 2020 On January 16, the Supreme Court of Canada dismissed an appeal from the Government of British Columbia that sought to confirm that BC has jurisdiction to regulate the shipment of “heavy oil” through the province. In a unanimous judgment issued from the bench the same day as the appe...

Posted in: Ontario | Practice & Procedure | Canada (Federal)

Insights EnergyInsider
Canada (Minister Of Citizenship And Immigration) v. Vavilov: Supreme Court of Canada Revisits the Standard of Review By Matthew Helfand Jan 07, 2020 In Canada (Minister Of Citizenship And Immigration) v. Vavilov, the Supreme Court of Canada charts a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision.

Posted in: Canada (Federal) | British Columbia

Insights EnergyInsider
Supreme Court of British Columbia Dismisses Challenges to Trans Mountain Pipeline Environmental Assessment Jun 05, 2018 On May 24, 2018, the Supreme Court of British Columbia dismissed challenges to the Trans Mountain Pipeline Expansion Project by the City of Vancouver and the Squamish Nation.​ Both parties petitioned the Court to set aside the Environmental Assessment...

Posted in: Canada (Federal)

Insights EnergyInsider
Supreme Court to Revisit Standard of Review in Appeals of Administrative Decisions May 10, 2018 In a recent decision granting leave to appeal, the Supreme Court of Canada signalled its intention to once again consider the nature and scope of judicial review of administrative action, specifically the question of standard of review.