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Energy - Ontario Energy Board (3). Environmental Defence Canada Inc. v. Ontario Energy Board
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)".
The court walks through the five Baker elements for assessing procedural fairness, here in an OEB context:No denial of procedural fairness
[57] The duty of procedural fairness is “eminently variable”, inherently flexible and context-specific.[47] The five non-exhaustive Baker factors inform the content of the duty of procedural fairness in a particular case.[48] They are addressed below and support a duty of fairness at the lower end of the spectrum for EDC as an intervenor in the leave to construct proceedings for the NGEP projects on appeal.
Baker Factor 1: The nature of the decision being made and the process followed in making it:
[58] While the OEB is a quasi-judicial body and its proceedings may resemble a court hearing, they are polycentric and discretionary. The OEB’s focus on the public interest is consistent with hearing from a diverse range of voices, which often means controlling the process to ensure that it does not become unduly complicated, lengthy, or costly.
Baker Factor 2: The nature of the statutory scheme:
[59] The OEB Act requires a hearing, but not an oral hearing, nor does it require any specific type of evidence to be admitted. There is also an internal review mechanism. As noted above, the hearings were not an adversarial contest between two sides with both sides’ rights being determined by the OEB. The fact that the projects were selected for inclusion in the NGEP is a key factor in the OEB’s analysis.
Baker Factor 3: Importance to the Individuals Affected:
[60] Decisions of the OEB do not force anyone to switch to natural gas. The risk of revenue shortfall falls on Enbridge for at least 10 years. This is not the type of decision that has serious impacts on the life or livelihood of an individual.
Baker Factor 4: Legitimate Expectations:
[61] EDC had no legitimate expectation that it would be allowed to submit evidence as an intervenor. This is a discretionary decision and EDC has been allowed to submit evidence in some cases and denied in others.
Baker Factor 5: Tribunal’s Procedural Choices:
[62] The OEB’s procedural choices, as set out in its rules, are a significant factor and have not been shown to be unfair. The opportunities given to intervenors vary depending on the case.
[63] The Baker factors do not put EDC’s procedural rights on the high end of the spectrum. I do not accept EDC’s submission that even the most minimal procedural rights would include the opportunity to introduce relevant evidence. The case EDC relied upon to support this proposition involved debt enforcement by the government against sponsors of immigrants who were found to have the right to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection.[49] These individuals had a direct interest at stake. This is a very different context than these leave to construct proceedings before the OEB. . 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]
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[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]
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[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.
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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”.
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[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. . Environmental Defence Canada Inc. v. Ontario Energy Board
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 appeals under the OEB Act:[28] The Divisional Court has jurisdiction to hear an appeal on questions of law or jurisdiction from decisions of the OEB pursuant to s. 33(1) and (2) of the OEB Act. . Environmental Defence Canada Inc. v. Ontario Energy Board
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 characterizes the Ontario Energy Board:The Ontario Energy Board
[4] The OEB is an independent quasi-judicial regulatory body with exclusive jurisdiction to regulate the electricity and natural gas sectors in Ontario as set out in the OEB Act, and other statutes. Subject to certain exceptions, the prior approval of the OEB – referred to as leave to construct – is needed before new natural gas infrastructure can be built. In leave to construct proceedings, the OEB’s task as set out in s. 96 of the OEB Act is to determine whether it is of the opinion that the construction of proposed new natural gas infrastructure is in the public interest. The OEB may grant intervenor status to those who have an interest in the subject matter of the application and can provide a useful perspective to the OEB[1].
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