2195002 Ontario v. Tribute Resources: Court of Appeal can hear appeal of Superior Court decision despite later involvement of an administrative board

It is uncontroversial that administrative tribunals, through their empowering statutes, can oust the jurisdiction of a superior court to hear certain matters. But can events that take place in the administrative law context after a superior court trial affect the ability of the Court of Appeal to hear the appeal of that trial decision? This is what the Ontario Court of Appeal considered in 2195002 Ont. Inc. v. Tribute Resources Inc., 2013 ONCA 576.

The genesis of the case was a dispute over the interpretation of contracts which concerned oil and gas. Before the Court of Appeal, the respondent argued that actions of the Ontario Energy Board (OEB), subsequent to the Superior Court decision, concerning parties’ entitlement to compensation under the Energy Act, ousted the Court of Appeal’s jurisdiction over the matter.

Sections 38(3) and 19 of the Energy Act give the OEB exclusive jurisdiction to deal with certain energy-related matters and prohibit civil proceedings with respect to such issues. The OEB also has authority to determine questions of fact and law falling within its jurisdiction. It also has exclusive jurisdiction with respect to all matters in which jurisdiction is conferred on it by the Energy Act. In an unrelated proceeding, the Court of Appeal upheld a decision “dismissing for want of jurisdiction an action brought by land owners against a company authorized to inject and store gas on their lands where the action was commenced after a s. 38 compensation order had been made” (para. 18).

The respondent in this case thus argued that the involvement of the OEB after the Superior Court decision ousted the Court of Appeal’s jurisdiction to hear this appeal. The Court of Appeal rejected this argument, finding that “nothing in s. 38(3) of the Energy Act ousts the jurisdiction of this court to entertain an appeal on the merits from a final order of a Superior Court judge made within its jurisdiction.”

The issue of jurisdiction over the subject matter had been resolved in the Superior Court when a preliminary application held that the substance of the relief sought in the action did not fall within the ambit of the Energy Act’s privative clauses. This decision was never appealed. Nor was the Court concerned about potential mootness due to the OEB’s involvement.

In these circumstances, the Court observed:

[28]       The jurisdiction of this court to entertain this appeal derives from s. 6 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). Under s. 6(1)(b) of the CJA, this court has jurisdiction to entertain an appeal from the application judge’s decision because it is a final order of a Superior Court judge.

[29]        The parties agree that the application judge had jurisdiction to render her judgment interpreting the relevant contractual documents. Her judgment is a final order and nothing in s. 38(3) of the Energy Act ousts this court’s jurisdiction to entertain an appeal under s. 6(1)(b) of the CJA. Neither the decision of the application judge, nor this decision, address compensation under the Energy Act. The order of the OEB made some four months after the decision of the application judge cannot turn what was an order interpreting contractual rights into an order for compensation under the Energy Act.

[30]       The questions of what, if any, effect this court’s decision will have on the OEB’s determination of the compensation issues now outstanding under the Energy Act and whether this appeal may now be moot are different issues than the jurisdictional issue raised by 219 Ontario.

[31]       The fact that this court has jurisdiction to entertain an appeal from the application judge’s decision does not determine the question of the effect, if any, of this court’s decision on the compensation issues under the Energy Act.

[32]       We make no comment on that subject, which will be a matter for the OEB to determine.

[33]       To the extent that 219 Ontario may be arguing that this court should not entertain this appeal because the OEB is entitled to make its own determination of the issues decided by the application judge thus making this appeal moot, we would not give effect to that argument in the circumstances of this case. Although 219 Ontario submits that this court should not hear this appeal, it also submits that the OEB is bound by the application judge’s decision. We reject that position. 219 Ontario cannot have it both ways. If the OEB decides it is bound by the application judge’s decision, the issues before this court are not moot.

[34]       In any event, as we have said, in its December 21, 2012, decision, the OEB stayed the compensation application in relation to the McKinley Lands pending the conclusion “of all related Court proceedings … including any appeal of Superior Court File No. 5041/2011.” The terms of this order indicate that from the perspective of the OEB, the outcome of this appeal has potential relevance to the terms of any compensation order to be made by the OEB. Accordingly, even if this appeal is now technically moot because the OEB is entitled to make its own determination of the issues determined by the application judge, we would exercise our discretion to decide it: see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353.

Despite rejecting the respondent’s preliminary argument, the appeal ended up being dismissed.