December 14, 2015
Administrative tribunals derive their powers from legislation, which empowers them to oversee and adjudicate matters in what are sometimes highly complex and specialized areas. Accordingly, tribunals carry out their mandate by adjudicating matters between parties and also, when called upon, making policy and regulatory decisions.
The actions and decision of tribunals are not immune from scrutiny and their decisions are often challenged by impacted regulated entities and/or persons. A recent Supreme Court of Canada Case, Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44 (Ontario Power), dealt with the extent to which a tribunal may defend its own decision upon judicial review.
The decision in question resulted from a review by the Ontario Energy Board (the “Board”) of the Ontario Power Generation Inc.’s (the “OPG”) labour costs. When the OPG made its 2011-20012 utility rate application, the Board denied the recovery of $145 million in labour compensation, despite the OPG being bound by a collective agreement. The Board noted OPG’s labour costs were excessive compared to other electrical utility companies.
The OPG sought judicial review of the Board’s decision, and the Board was granted full-party standing before the court to defend its decision. The court found in favour of the Board, and the OPG appealed to the Supreme Court of Canada challenging the decision of the lower appeal court granting the Board full-party standing. The OPG alleged the Board “bootstrapped” additional reasons for its decision while arguing the appeal, which reasons were not set out in the original decision.
The Supreme Court of Canada held the Board was properly granted full-party status in the appeal and had conducted itself appropriately before the court. The Court noted the decision to allow a tribunal to participate in a review of its own decision is a discretionary decision. To that end, the Court articulated the following non-exhaustive principles as guidelines for lower courts to use in determining when and to what extent a tribunal should be allowed to defend and participate in the review of its own decisions:
- a reviewing court must balance “the need for a fully informed adjudication against the importance of maintaining tribunal impartiality”;
- if an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing;
- if there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes; and
- whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Partiality concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding subject to review, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.
This decision is a good reminder of the deference afforded by the courts towards administrative bodies in light of the specialized knowledge they are considered to possess, and the degree to which courts and legislatures are prepared to download their powers and responsibilities to these regulatory entities.