A Principled Stand on Tribunal Participation in Judicial Review: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44
The Supreme Court of Canada released a very important decision on tribunal standing today: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, a utilities regulation case concerning the Board’s decision to disallow salary costs even though a substantial portion was fixed in place by a binding collective agreement. The Court upheld the Board’s decision. Although Rothstein J.’s majority opinion contains a fascinating discussion of the principles of rate-setting, and Abella J.’s fiery dissent takes the Board to task for paying insufficient respect to the collective agreement, it is Rothstein J.’s analysis of tribunal standing that is of greatest significance.
The starting point was Northwestern Utilities Ltd. v. City of Edmonton,  1 S.C.R. 684, at p. 709, where, citing concerns about impartiality, Estey J. limited a tribunal’s participation in judicial review proceedings to “an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction”. One immediately obvious problem is that what “jurisdiction” meant in 1979 is nothing like what it means today. Reasonableness has replaced it as the dominant organizing principle of Canadian administrative law. Indeed, in CAIMAW v. Paccar of Canada Ltd.,  2 S.C.R. 983, a minority of the Court would already have permitted tribunals to defend the reasonableness of their decisions, something the Court has subsequently, “without comment”, relatively regularly permitted (at para. 45).
How then should Northwestern Utilities be updated for the present day? One option would have been to follow the classically incremental approach of the common law. The procedural posture of this case invited such an approach: there was an appeal from the Board’s decision to the ordinary courts. In Canada, judicial review principles apply to appeals from specialized regulators. But surely a Board that is the sole respondent in an appeal cannot be equated to a decision-maker whose decision is attacked on judicial review. Rothstein J. relied in part on this sort of incremental approach, noting “the Board was the only respondent in the initial review of its decision”, which gave it “no alternative but to step in if the decision was to be defended on the merits” (at para. 60).
Rather than leaving it at that, however, Rothstein J. adopted the principled approach that increasingly marks the Court’s public law jurisprudence. He noted the concerns for finality and impartiality underlying Northwestern Utilities. As Stratas J.A. explained in Canada (Attorney General) v. Quadrini, 2010 FCA 246, pursuant to the principle of finality, a decision-maker’s “job is done” once it reaches a final decision: “A judicial review is not an opportunity for the tribunal to amend, vary, qualify or supplement its reasons” (at para. 16). Impartiality, meanwhile, counsels against “active and even aggressive participation [that] can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties” (Northwestern Utilities, at p. 709).
Having considered these principled concerns, Rothstein J. felt that a “categorical ban on tribunal participation on appeal” was not necessary to respond to them. Rather, a “discretionary approach…provides the best means of ensuring that the principles of finality and impartiality are respected without sacrificing the ability of reviewing courts to hear useful and important information and analysis” (at para. 52). Concretely, “tribunal standing is a matter to be determined by the court conducting the first-instance review in accordance with the principled exercise of that court’s discretion” (at para. 57). Rothstein J. identified three relevant principles (at para. 59):
(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.
This, like many of the Court’s public law pronouncements, is plainly designed to give guidance to judges throughout the Canadian legal system, guidance that incrementalism may not be capable of providing.
Rothstein J.’s preference for a discretionary approach was supported by several principled considerations. First, “because of their expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome” (at para. 53). Second, “[i]n a situation where no other well-informed party stands opposed, the presence of a tribunal as an adversarial party may help the court ensure it has heard the best of both sides of a dispute” (at para. 54). Third, the statutory mandates of different tribunals may require different conclusions. For instance, “[t]he mandate of the Board, and similarly situated regulatory tribunals, sets them apart from those tribunals whose function it is to adjudicate individual conflicts between two or more parties” (at para. 56). A blanket rule would achieve the goal of protecting the perceived impartiality of judicial tribunals but deprive reviewing courts of the potentially valuable perspectives of regulatory tribunals.
Rothstein J. then distinguished the issue of whether a tribunal can participate in judicial review proceedings from the content of its participation “The standing issue concerns what types of argument a tribunal may make, i.e. jurisdictional or merits arguments, while the bootstrapping issue concerns the content of those argument” (at para. 63), in particular “where it seeks to supplement what would otherwise be a deficient decision with new arguments on appeal” (at para. 64). The same principles of finality and impartiality should guide courts in preventing bootstrapping (at para. 69). In general, “the proper balancing of these interests against the reviewing courts’ interests in hearing the strongest possible arguments in favour of each side of a dispute is struck when tribunals do retain the ability to offer interpretations of their reasons or conclusions and to make arguments implicit within their original reasons” (at para. 69). While there is little to quibble with in permitting tribunals to offer “interpretations”, I am a little bit wary of permitting them to make “implicit” arguments. This is already causing enough difficulty. Slatter J.A., in a passage cited by Rothstein J., phrased it better, I think:
While the tribunal, like any other party, can offer interpretations of its reasons or conclusion, it cannot attempt to reconfigure those reasons, add arguments not previously given, or make submissions about matters of fact not already engaged by the record. A tribunal can, within those limits, attempt to rebut arguments about how it reasoned and what it decided (Leon’s Furniture Limited v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94, at para. 29).
I suspect, however, that Rothstein J.’s distinction between participation and the content of the participation may turn out to be chimerical. Even a tribunal that acts judicially can surely participate in some meaningful way before a reviewing court, for instance in addressing the standard of review (though see this case) or providing context for an alleged breach of procedural fairness. Most cases, perhaps even all cases, will turn on the content of the proposed participation, something to be determined in a discretionary fashion based on the principles set out by Rothstein J.
In this case, the Board could participate without compromising the principles of finality and impartiality (at paras. 60-62) and, although Rothstein J. sounded a “note of caution” about the Board’s suggestion that even if it lost on judicial review it would reach the same result in fresh proceedings, he felt “the Board generally acted in such a way as to present helpful argument in an adversarial but respectful manner” (at para. 72).
This content has been updated on September 25, 2015 at 21:33.