|
Administrative - Evidence - General. Environmental Defence Canada Inc. v. Ontario Energy Board [intervenor's statutory right to adduce evidence]
In Environmental Defence Canada Inc. v. Ontario Energy Board (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, this brought against orders in 'leave to construct' proceedings for natural gas projects [under s. 90 of the Ontario Energy Board Act] "by denying EDC an opportunity to file proposed evidence and by refusing to convene a technical conference (a form of oral discovery)".
Here the court considers an intervenor's involvement in tribunal proceedings, particularly any right to 'adduce evidence' [here under OEB Rules R13.01]:Intervenor involvement in the process
[14] Intervenors have no automatic right to file any evidence. They must make a request and obtain permission from the OEB to do so.[8]
[15] Under the OEB Rules, the OEB has discretion whether to convene a technical conference (a form of oral discovery) after completion of written discovery and as to the form of hearing.[9] The OEB may direct a technical conferences for the purposes of reviewing and clarifying an application, an intervention, a reply, the evidence of a party, or a matter connected with interrogatories.[10]
....
[20] The requests to file evidence on the economic superiority of heat pumps were rejected largely for the same reasons as were given by the OEB in response to a similar request filed by EDC in 2023. In essence, the OEB held that the evidence was irrelevant, because the decision the OEB needs to make is whether the project is “in the public interest”, not to make a choice between heat pumps or natural gas expansion. EDC was able to elicit and test Enbridge’s evidence through interrogatories, and this allowed it to attempt to make its case.
[21] The OEB rejected the requests to file survey evidence for the following reasons:1) The OEB was alive to the concerns raised by EDC, regarding the risk to the financial viability of the project from consumers choosing heat pumps over natural gas, without needing to hear evidence on the question. No further surveys were needed to establish that point.[12]
2) The admission of an additional survey would have limited comparison value because consumer decisions are based on both financial and non-financial considerations.[13]
3) The determinative value of an additional survey may depend on a lengthy and difficult adjudication of the validity, timeliness, and cogency of survey design.[14]
4) Regarding EDC’s contention that Enbridge may collect insufficient revenues, Enbridge is responsible for potential revenue shortfalls during a “10-year rate stability period” during which Enbridge assumes such responsibility”.[15] Following the expiration of the 10-year rate stability period, “the clear and reasonable expectation is that customers will not be called upon to provide a further subsidy to compensate for post-[rate stability period] revenue shortfalls.”[16]
5) Delay and increased costs associated with EDC’s request were a concern: if the final decisions granted leave, “the end result of an accommodation of the late request would likely have resulted in a later decision, later service to customers, and potential additional costs accruing from construction delays.[17]
6) The Evidence Decisions considered that EDC had other opportunities available to it to challenge Enbridge’s survey evidence, including through the filing of written submissions and discovery through written interrogatories.[18] [22] Regarding EDC’s request for a technical conference, a “technical conference and/or oral hearing would have limited probative value given the opportunity for discovery through the interrogatory process.”[19] Additionally holding a technical conference would result in unnecessary delay and would not be in the best interests of customers.[20]
....
[27] EDC argued that it was procedurally unfair for the OEB to reject its request to file evidence. It also argued that the OEB applied the wrong legal test to the admissibility of evidence and emphasized irrelevant factors including the length and difficulty of the adjudication, misdescribed the evidence, and put undue reliance on distinguishable cases and past practice. As a result, it failed to appreciate the risk of a revenue shortfall. In decisions dated April 1, 2025 (the “Review Decisions”)[26] the OEB rejected these arguments, finding that the process was procedurally fair and the request for review was dismissed.
....
Analysis
[30] The two “main legal errors” EDC alleges are linked and are ultimately questions of procedural fairness. The EDC’s first issue alleges that the OEB adopted the incorrect legal test regarding the admission of evidence, and its second issue alleges that the OEB breached the duty of procedural fairness by denying an opportunity to submit evidence or obtain additional oral discovery. These are ultimately the same issue. Following the Supreme Court’s decision in Université du Québec à Trois-Rivières v Larocque, the question to evaluate whether a tribunal erred in refusing to receive evidence is whether the applicant was denied procedural fairness [27].
Issue 1: Did the OEB apply the incorrect legal test when considering whether to permit the proposed intervenor evidence?
[31] EDC submits that the admissibility of evidence in any form is based on relevance.[28]
No error in the OEB’s articulation of the legal test
[32] Section 15(1) of the Statutory Powers and Procedures Act (SPPA)[29] governs the admission of evidence by administrative tribunals (such as the OEB) exercising statutory powers of decision. Section 15(1) which states that a tribunal may admit as evidence at a hearing anything relevant to the proceeding, is permissive as opposed to restrictive or mandatory. There is no requirement under s. 15(1) of the SPPA that a tribunal must admit all evidence that may be relevant. Nor is that requirement found in the OEB Rules.[30]
[33] In Larocque, supra, the Supreme Court of Canada rejected the proposition that administrative tribunals must admit all “relevant” evidence in the labour arbitration context. It held that it is only a breach of natural justice where it has such an impact on the fairness of the proceeding leading unavoidably to the conclusion that there has been a breach of natural justice.[31] EDC submits that there are significant differences in the labour context where there are privative clauses and no rights of appeal. Nevertheless, the court’s reasoning has not been restricted to the labour arbitration context.
[34] In Council of Canadians with Disabilities v Via Rail Inc., 2007 SCC 15, the Supreme Court held:231 Considerable deference is owed to procedural rulings made by a tribunal with the authority to control its own process. The determination of the scope and content of a duty to act fairly is circumstance-specific, and may well depend on factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the Agency’s constituencies. Any assessment of what procedures the duty of fairness requires in a given proceeding should “take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. [authorities omitted] [35] This court has held that “considerable deference is owed to procedural rulings made by a tribunal with the authority to control its own process, including the OEB.”[32] Evidentiary decisions involve discretion. Tribunals cannot exercise that discretion “reckless[ly],”[33] but the OEB’s Evidence Decisions cannot be fairly characterized as “reckless”.
....
[41] EDC argues that the high relevance of its proposed survey evidence is particularly obvious because Enbridge submitted survey evidence which the OEB relied on as a “key factor” in the assessment of the economic viability of the project. EDC submits that its proposed survey would have also been a key factor but for the fact that its request for what it characterizes as important, crucial, critical evidence was denied.
[42] This would appear to be a compelling argument, but it fails to take into account that these applications were not an adversarial contest between two sides with both sides’ rights being determined by the OEB. While the OEB accepted that EDC has a substantial interest in the subject matter of the proceeding and a useful perspective, it does not have a direct interest in the outcome. Its legal rights or interests are not at stake or being determined on these applications. It is Enbridge’s application and it is the only party with a burden to meet. EDC’s argument that the statutory scheme necessarily requires the OEB to accept and consider this specific evidence from both sides misconstrues these proceedings. . H.C. v. Children’s Aid Society of Toronto
In H.C. v. Children’s Aid Society of Toronto (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against a CFSRB order limited to ordering the local CAS "to provide a letter explaining the investigation and why it was unable to disclose more information gathered in the investigation".
The court considered common law evidentiary administrative protections, here where the SPPA was specifically excluded from application:[61] The hearing was procedurally fair. H.C. participated in an electronic oral hearing and had the opportunity to present documentary evidence, give oral testimony, cross-examine witnesses and to make oral submissions. The evidence admitted and considered by the adjudicator was relevant and probative to the issues she had to decide. Although the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, does not apply to CFSRB, it has broad discretion under the common law to admit or exclude evidence unfettered by the strict rules of evidence: Lorne Sossin, Robert W. Macaulay & James L.H. Sprague, Practice and Procedure Before Administrative Tribunals, s. 22:3.
....
[64] The CFSRB is empowered to ensure a fair but expeditious hearing: Walters v. Centurion Property Associate Inc., 2024 ONSC 7093 (Div. Ct.), at para. 27. The rulings were in keeping with the proper exercise of those powers. As an example, admitting the Investigator’s affidavit and leaving open the question of weight did not render the hearing procedurally unfair. It was clear she had material and probative evidence to give.
[65] The extent of the disclosure sought by H.C. was not necessary given the limited scope of remedies available to the CFSRB adjudicator. Her analysis regarding this was sound. Given the scope of remedies CFSRB could exercise on the facts of this case, the limiting of the issues did not render the hearing unfair. It was within the discretion of CFSRB to limit the hearing to the issues that were canvassed and ordered at the pre-hearing conference pursuant to the CFSRB’s authority under s. 50 of General Matters under the Authority of the Lieutenant Governor in Council, O. Reg. 155/18. . Thales DIS Canada Inc. v. Ontario (Transportation)
In Thales DIS Canada Inc. v. Ontario (Transportation) (Ont CA, 2023) the Court of Appeal considered the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), here in the course of a successful Crown appeal of a JR finding that the bidding requirements were in violation of CETA. In this quote the court considers the admissibility standards applicable to evidence in an administrative context:[111] With respect to the evidence, the Director had the benefit of affidavit evidence from Thales explaining that it had the capacity to manufacture the card stock in Poland and transport it securely. She also had the Fraud Note. Thales took issue with the Director’s consideration of the Fraud Note on the basis that it was not proper evidence. However, the Director responded to this issue, stating that she was permitted to consider non-affidavit evidence and that the information in the Fraud Note came from a department with a depth of expertise in identity theft and fraud. The rules of evidence are generally relaxed for administrative proceedings, inquiries and investigations, and sworn testimony is not typically required: see e.g., Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15(1); Public Inquiries Act, 2009, S.O. 2009, c. 33, Sched. 6, s. 8(1); Laporte v. United Steelworkers, Local 1998, 2019 ONSC 3705 (Div. Ct.), at para. 45; Payne v. Peel (Regional Municipality) Police Services Board, 186 O.A.C. 69 (Div. Ct.), at paras. 1, 7. This was an in-writing administrative process. In these circumstances, the Director was entitled to consider the Fraud Note.
|
