In an increasingly regulated world, governments have established a litany of administrative tribunals to oversee and administer complex regulatory schemes. Often, applying their specialized expertise, such tribunals adjudicate disputes between participants in a regulated sector; but in other instances tribunals are tasked with making policy or regulatory decisions based on their specialized knowledge. Inevitably, regulated persons are dissatisfied with a tribunal’s decision and seek judicial review. The extent to which a tribunal may then defend its decision upon review was recently canvassed by the Supreme Court of Canada in Ontario (Energy Board) v Ontario Power Generation Inc.2015 SCC 44 (Ontario Power).

Background

Ontario Power Generation Inc. (OPG) is an electrical utility company regulated by the Ontario Energy Board. Ninety percent of OPG’s workforce is unionized, and their compensation fixed by collective agreements. However, when OPG made its 2011-2012 utility rate application, the Board disallowed the recovery of $145 million in labour compensation costs, despite OPG being bound by the collective agreements. The Board considered OPG’s labour costs to be excessive when benchmarked against other electrical utility companies.

OPG sought judicial review of the Board’s decision, and the Board was granted standing before the courts to defend its original decision. Apart from challenging the reasonableness of the Board’s decision, OPG argued that the Board should not have been granted full-party standing, and that the Board improperly “bootstrapped” additional reasons for its decision through its arguments on review and appeal. The matter was appealed to the Supreme Court of Canada, who ultimately found that the Board was properly granted standing and properly conducted itself before the courts. Helpfully, the Court seized the opportunity to provide lower courts guidance on when and to what extent tribunals should be allowed to defend their own decisions upon review.

Tribunal Standing

Traditionally, a tribunal’s standing in a review or appeal of its decision was limited to an explanatory role or making submissions about jurisdiction. Actively defending its decision was said to violate the principles of finality and fairness, and to impair the tribunal’s appearance of impartiality. However, more recent appellate court decisions have trended towards a discretionary, contextual approach that allows greater tribunal participation depending on the expertise of the tribunal, whether the tribunal’s role is more adjudicative or policy oriented, and whether anyone will defend the decision under review before the court.

In Ontario Power, the Supreme Court endorsed the discretionary approach. When deciding whether to grant a tribunal standing, a reviewing court must balance “the need for a fully informed adjudication against the importance of maintaining tribunal impartiality.” The Court outlined the following three considerations to guide reviewing courts in their exercise of discretion:

  1. If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.
  2. 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.
  3. 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. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.

“Bootstrapping”

If granted standing, the next question becomes the extent to which a tribunal may defend its decision. The Supreme Court confirmed that tribunals are not entitled to “bootstrap” new arguments or reasons to its original decision. A tribunal cannot defend what would otherwise be a deficient decision on grounds that it did not rely upon in the decision under review.

Whether a tribunal’s submissions amount to improper bootstrapping is not always clear. The Court offered guidance on the type of submissions that a tribunal may advance:

  • Arguments that interpret or were implicit (if not expressly articulated) in the original decision;
  • Explanations of the Tribunals established policies and practices, even if not described in the original reasons for decision; and
  • Arguments in response to arguments raised by any counter-party.

Overall, a tribunal’s submissions should be a “helpful elucidation of the issues, informed by its specialized position”, rather than aggressive, adversarial and self-serving partisanship.

Implications for the Future

While a tribunal’s standing to defend its decisions will be decided on a case-by-case basis, tribunals with intensive policy-making and regulatory functions, such as the Ontario Power Board, will often be granted standing on review to interpret their decisions and explain their policies and practices.