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JR - Remedies - Set Aside [JRPA s.2(4)]. West Whitby Landowners Group Inc. v. Elexicon Energy Inc.
In West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of a JR regarding "whether an intervention by the Ontario Energy Board (the “OEB” or the “Board”) in a cost-sharing dispute between a group of real estate developers in Whitby, Ontario, and the licensed monopoly distributor of electricity in that region, is judicially reviewable".
Here the court considers the JR ancillary remedy of 'set aside' [under JRPA 2(4)]:[17] The following provisions of the JRPA and OEB Act are relevant to the scope of judicial review in this context.
[18] Under the JRPA, judicial review is available in two circumstances. First, s. 2(1)1 states that judicial review is available in “[p]roceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.” Second, pursuant to s. 2(1)2, judicial review is available in:Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. [Emphasis added.] [19] The term “statutory power” is defined in s. 1 of the JRPA to include the “exercise of a statutory power of decision”. A statutory power of decision is defined as follows:“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not, and includes the powers of an inferior court. [20] Section 2(4) of the JRPA states that where an applicant is successful under s. 2(1)2, a reviewing court may set aside a decision made in excess of a statutory power of decision instead of issuing a declaration.
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