Administrative Agencies are a “They”, Not an “It”: West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821

As I have observed before, (with apologies to Kenneth Shepsle) administrative agencies are a “they”, not an “it”. Further evidence comes from West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821. Over the objection of the Ontario Energy Board, the Ontario Court of Appeal held that Board staff members could make binding determinations of law and fact in letters resolving complaints about the application of regulatory provisions within the Board’s jurisdiction, thereby defining legal rights and obligations.

Under the Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sched. B, the cost of new substations is borne by different parties depending on whether the new substation is categorized as an expansion or an enhancement. Here, a group of developers (WW) contended that it was an enhancement; the electricity company (EE) argued it was an expansion. Knowing that they would not see eye to eye on this question, they provided in the contract they agreed to that the Board would make a final determination.

WW wrote to the Board’s Industry Relations Office and asked for a final determination in the name of the Board, noting that if this was not possible, WW wished the Board to hold a full hearing on the matter (using its adjudicative authority).

In a letter in August 2019, Board staff wrote to express their “views and conclusions” that the new substation was an expansion and that WW should foot most of the bill.

WW responded, asking for reconsideration and making a complaint. WW then wrote again, asking for a hearing.

In a letter in December 2020, Board staff confirmed its conclusion that the new substation was an expansion, but altered the allocation of cost somewhat. The Board staff’s letter did not expressly address the request for a hearing.

At the heart of the case was whether the August 2019 and December 2020 letters were merely the expression of the opinion of Board staff (in which case they would not properly be subject to judicial review) or represented binding legal determinations (in which case judicial review would be available).

The key provision here was s. 105 of the OEB Act:

(a) receive complaints concerning conduct that may be in contravention of an enforceable provision whether the conduct constitutes an offence or not; and

(b) make inquiries, gather information and attempt to mediate or resolve complaints, as appropriate, concerning any matter that comes to its attention that may be in contravention of an enforceable provision whether the matter constitutes an offence or not.

Sossin JA held that the letter from WW “triggered the Board’s broad discretionary authority to receive, investigate and resolve complaints” (at para. 49). The letter did not use the word complaint, but it walked and talked like a complaint: it was sent to the office at the Board that deals with complaints, it raised a potential violation of a regulatory provision and it sought a “final and binding” interpretation of the relevant regulatory provision (at paras. 50-51, 69).

In Sossin JA’s view, s. 105 authorized the Board to make binding legal determinations about whether a regulatory provision has been violated. The text was clear: “Section 105 empowers the OEB to attempt to “resolve” complaints. Nothing in the text suggests that the Board is limited under s. 105 in how it may do this” (at para. 54). Elsewhere, the OEB Act gives the Board exclusive authority to make legal and factual determinations on matters within its jurisdiction (at para. 56, citing s. 19). Statutory purpose also supported the clear implication of the text of s.105:

…the breadth of the powers conferred on the Board suggests an intent to investigate and address complaints through a wide range of dispute resolution mechanisms. Indeed, pursuant to the Act, the OEB is granted exclusive jurisdiction over regulating Ontario’s electricity and gas sectors, with the express purpose of protecting consumers’ interests: ss. 1(1)1, 2(1)2. In service of this, the Board is granted extraordinary powers relating to licensure, pricing, and compliance, including powers of search and seizure: see OEB Act, ss. 57-60, 78, 107,112.0.1–112.0.6, 112.2–112.6. It would be consistent with such a purpose that the Board could exercise its s. 19 exclusive authority to interpret and apply the Code as part of the suite of options at its disposal to resolve complaints. By contrast, precluding such an option from being available to the Board would be inconsistent with this purpose (at para. 63).

The August 2019 letter contained “substantive analysis” leading conclusions about the correct application of the regulatory provisions in question (at para. 72). True, there was no use of the term “final and binding” but this was unnecessary: “it is reasonable to infer that if the OEB did not intend its staff’s views and conclusions to constitute a final and binding decision, it would have so stated in its response letter” (at para. 71). The December 2020 letter was a final decision that incorporated the conclusions of the August 2019 letter by reference.

The Board argued that its staff do not have the authority to make final and binding determinations, as only the Commissioners can do so by making orders. Sossin JA rejected this argument. First, s. 19 refers to “the Board”, not “the Commissioners” in granting exclusive authority (at para. 101). Second, the Board never suggested “that the conclusions contained in that correspondence were subject to review, revision or further consideration by Commissioners, or anyone else at the Board, before those conclusions could constitute a decision of the Board” (at para. 103). Third, there is jurisprudence in support of the proposition that an administrative agency may make a decision by way of letter (at para. 104). Fourth, the language used in the letters was “neither preliminary, nor tentative, but rather was, and was intended to be, a definitive interpretation and application of the Code” (at para. 106). It set out the parties’ respective rights and obligations in determinative fashion.

Accordingly, Sossin JA concluded, the December 2020 letter was properly the subject of an application for judicial review. The lasting significance of this decision, however, is that it demonstrates that an administrative agency is a “they”, not an “it”: sometimes staff members might find themselves making binding determinations about rights and obligations; it is not only through decisions made by Commissioners after hearings that administrative agencies make findings of law and fact.

This content has been updated on February 22, 2026 at 22:24.