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Intervention - Evidence Record. 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. . Canada v. DAC Investment Holdings Inc.
In Canada v. DAC Investment Holdings Inc. (Fed CA, 2025) the Federal Court of Appeal (Stratas JA) dismissed a motion to intervene [under FCR Rule 109].
Here the court states that intervenors may not add evidence to the case, "especially on appeal":[11] Nor can interveners add new evidence, especially on appeal: Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 22. . R. v. Sharma
In R. v. Sharma (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Ontario Court of Appeal ruling that allowed an appeal, that from a Superior Court sentencing ruling "that a conditional sentence was unavailable, and dismissed Ms. Sharma’s challenges under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms".
Here the court deters any hopes that intervenors had of supplementing evidentiary records in public interest cases at the appellate level:[75] We note here, in passing, our serious concern with interveners supplementing the record at the appellate level. As stated in R. v. Morgentaler, 1993 CanLII 158 (SCC), [1993] 1 S.C.R. 462, “[t]he purpose of an intervention is to present the court with submissions which are useful and different from the perspective of a non-party who has a special interest or particular expertise in the subject matter of the appeal” (p. 463, cited in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 52‑53). Interveners must, however, accept the record as defined by the parties in first instance (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; R. v. Marshall, 1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533, at para. 9; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 59). Interveners creating a new evidentiary record at the appellate level undermines the trial process. That is not how our system of justice, including constitutional adjudication, is designed to work. . Grant v. Workplace Safety and Insurance Appeals Tribunal
In Grant v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2024) the Divisional Court granted leave to intervene as a friend of the court.
Here the court considers the important, but rarely used, intervention issue of supplementing the evidentiary record:[10] The Tribunal’s other objection was made on the basis that it appeared that the interveners were attempting to supplement the evidentiary record. An intervener as a friend of the court normally takes the facts as presented by the parties, although they may seek leave to supplement the evidentiary record. [SS: my italics] In their motion, the moving parties did not seek leave to do so. In their factum, they expressly said that they did not seek to add material to the evidentiary record. In addition, the applicant had the opportunity to put evidence about the broader perspective of migrant workers before the Tribunal and, except for the applicant’s own history, did not do so. If done at the Tribunal, there would have been a fair opportunity to respond to the evidence.
[11] In summary, the moving parties did not seek leave to supplement the evidentiary record. The Tribunal’s objection on that basis did not stand in the way of granting the motion.
[12] We therefore granted leave to intervene on the above terms.
[13] During the oral argument of the interveners, it became apparent that they did seek to rely on additional evidence that was not in the application record. In particular, they wanted to rely on the affidavits filed in support of their motion for leave to intervene. That motion material does not automatically supplement the evidence in the application record and, as set out above, the interveners did not have leave to supplement the evidence. In oral argument, the interveners changed their position and asked to rely on the affidavits. That would be procedurally unfair. The interveners would have to first meet the threshold to supplement the record and there would then need to be a fair procedure available to the parties to respond to the evidence, none of which should have been requested by an intervener during the hearing of the application. To do so would be unjust and prejudicial to the parties. . Reference re iGaming Ontario
In Reference re iGaming Ontario (Ont CA, 2024) the Ontario Court of Appeal considered an unusual 'reference' [CJA s.8] case, here where the Ontario Crown wished legal issues resolved regarding Criminal Code-authorized gaming.
Here the court considered 'proposed evidence' of authorized reference intervenors:[1] By Order in Council 210/2024, the Lieutenant Governor in Council referred the following question to this court, pursuant to s. 8 of the Courts of Justice Act, R.S.O. 1990, c. C.43:Would legal online gaming and sports betting remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the attached Schedule? If not, to what extent? ....
[7] The proposed evidence consists of five affidavits: three from the Canadian Lottery Coalition Members, and two from British Columbia (one of which appends an expert report). British Columbia and the Canadian Lottery Coalition Members argue that their proposed evidence is relevant to correct factual misimpressions left by Ontario’s evidence. These misimpressions include that the proposed scheme would in fact bar players located outside of Ontario but within Canada from betting against players located in Ontario, and that the proposed scheme is analogous to or permissible under the regulatory schemes in various other jurisdictions.
[8] Ontario, Flutter, the CGA and NSUS oppose the admission of this evidence. There were two thrusts to the opposition. First, that the proposed evidence is irrelevant to the reference question. Second, that its admission at this stage may lead to delay and complexity in the reference proceeding. NSUS also argues that British Columbia’s expert report has not been properly tendered as expert evidence and that the author is not qualified to provide the opinions offered in his report. In the alternative, Flutter, NSUS and the CGA seek the right to cross-examine the affiants of the interveners seeking to adduce evidence, and leave to adduce responding affidavits.
[9] It is not my role as a single judge case managing the reference to determine questions of admissibility and relevance. This is for the panel to decide. The issue at this stage is whether the proposed evidence “may assist the court in determining” the reference question: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at paras. 17-18; see also Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 349, at para. 21.
[10] There are a number of relevant considerations.
[11] First, the “general rule” that interveners are typically not permitted to supplement the record does not apply in this case, where the parties seeking to file evidence are the effective opposition to Ontario and where there is no pre-existing record from a court below. It is appropriate for the moving parties to participate in the creation of the record in which the reference question will be determined: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361, at para. 9. The reference question is framed by the Lieutenant Governor in Council, but s. 8(6) of the Courts of Justice Act (which provides for the court’s appointment of counsel if an affected interest is not represented) recognizes that Ontario is not entitled to proceed unchallenged. In a case where Ontario has filed an extensive record, meaningful opposition must include an opportunity to challenge the factual assertions in that record.
[12] Second, it is important that the court have an adequate factual context for the determination of the reference. It is well-established that in a constitutional reference, an intervener may be permitted to file material (subject to the court’s determination as to its relevance and weight), because constitutional challenges should not be determined in a factual vacuum: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 17. However, the parties disagree about whether this is a “constitutional reference”. Ontario says it is not and that the reference question is purely one of statutory interpretation. British Columbia and the Canadian Lottery Coalition Members say that this is a constitutional reference because the court is asked to assess whether a provincial scheme would comport with federal legislation, and because some of the interveners have raised constitutional issues. I also note that Ontario’s own Statement of Particulars makes an argument based on language in the Constitution Act, 1867. Regardless of whether this is a “constitutional reference”, it is clear to me that the factual context may assist the court in answering the reference question. The reference question and incorporated Schedule explain Ontario’s proposed changes to the iGaming scheme in part by reference to the current scheme. The reference question asks whether the current scheme would “remain lawful” under the Criminal Code if it were changed in specific ways, and if not, “to what extent?”. Answering the reference question presupposes an understanding of how the current scheme operates.
[13] Third, I do not accept Ontario’s argument that the record must be limited to what it has put before the court on the reference. There are no stipulated agreed or assumed facts. Nor is there draft legislation. Rather, Ontario has filed affidavit evidence speaking to the operation of the current iGaming scheme and to the operation of the proposed scheme. Any party is free to argue at the hearing of the reference that the court’s determination of the reference must be based on facts put forward by Ontario only, or, as Ontario has argued here, that the reference involves a narrow question of statutory interpretation with a limited role for evidence. At this stage, however, it would be inappropriate to “limit the scope of the legal arguments by artificially curtailing the factual record”: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361, at para. 8.
[14] Fourth, I accept that it would not be appropriate for evidence to be put forward for the purpose of raising new and unrelated issues that have the effect of broadening the scope of the reference. Here, I am satisfied that the purpose of putting forward the proposed evidence is not to raise new issues, but to respond directly to Ontario’s own evidence about the operation of the scheme and the future operation of the proposed scheme, and to support British Columbia and the Canadian Lottery Coalition Members in their opposition to Ontario in the reference. This evidence may be of assistance to the court in determining the reference question. Again, this does not preclude any party from making arguments about the admissibility and relevance of the evidence or any part of the evidence at the hearing of the reference.
[15] Fifth, it is premature at this stage to make any determination about the admissibility and appropriate scope of expert evidence. As with all of the other proposed evidence, the admissibility of all or any part of the expert report submitted by British Columbia and the permitted scope of the author’s expertise, if any, is for the panel to determine.
[16] Sixth, the fact that some of the proposed evidence refers to alleged illegal or unregulated activities is not a reason to exclude it from the record. Arguably Ontario itself has opened the door to such evidence by adducing evidence about the existence of unlawful online gaming sites as part of the context in which the current scheme operates, and the avoidance of harms of unlawful or unregulated online gaming as a rationale for the proposed scheme. As for the portions of the proposed evidence that identify specific operators by name, this reference is not about, and cannot result in, a determination of liability against any specific operator. This reference is about the legality of a hypothetical new scheme which does not currently exist. The reference question and incorporated Schedule explain that new scheme in part by reference to the existing scheme. Understanding the operation of the current scheme – including how it in fact affects persons in provinces outside of Ontario – will assist the panel in understanding the proposed scheme and advising whether it will “remain lawful under the Criminal Code”, and if not, “to what extent”.
[17] I turn to the assertion that the inclusion of the proposed evidence in the record will lead to delay and complexity, as the opposing parties may want to file responding evidence, and to cross-examine to refute assertions in the proposed evidence, and that persons whose interests are not already represented may seek to participate in the reference to protect their reputations and business interests. I am confident that these and any other procedural concerns that arise from the inclusion of the proposed evidence in the record can be addressed in the reference process that I am case managing. A date has been fixed for another attendance before me (July 29, 2024). Other attendances can be arranged, if and when required.
[18] For these reasons leave is granted to British Columbia and the Canadian Lottery Coalition Members to file on the reference the proposed evidence put forward in their motions.
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