INTRODUCTION

In West Whitby Landowners Group Inc. v. Elexicon Energy Inc.,^[1] the Ontario Court of Appeal (“Court”) recently confronted the question of when an intervention by the Ontario Energy Board (“OEB”) in a cost-sharing dispute constitutes a judicially reviewable decision.

Writing for a unanimous panel, Sossin J.A. allowed the appeal and held that certain letters from an OEB delegated staff member determining the dispute between the parties constituted a binding decision. The Court held the letters comprised legal instruments within the OEB’s exclusive jurisdiction affecting the parties’ legal rights, thereby giving rise to judicial review.

This decision carries significant implications for how OEB communications, particularly those issued by delegated staff rather than by Commissioners, may be treated by reviewing courts.

BACKGROUND

The appellant, West Whitby Landowners Group Inc. (“WWLG”), is a cost-sharing trustee corporation for eleven real estate developers in Whitby, Ontario. The respondent, Elexicon Energy Inc. (“Elexicon”), is the licensed monopoly distributor of electricity in the region, operating in accordance with the OEB’s Distribution System Code (the “Distribution Code”) established pursuant to the Ontario Energy Board Act, 1998^[2] (“OEB Act”).^[3]

WWLG was developing residential subdivisions requiring electricity service. In December 2018, WWLG and Elexicon entered into a Connection Agreement providing that Elexicon would supply electricity through a new municipal substation “MS16” and two new transformers.^[4] Under the Distribution Code, new infrastructure like MS16 may be classified as either an “expansion” or an “enhancement” of Elexicon’s distribution grid. If MS16 constituted an expansion, WWLG would be required to pay a capital contribution to Elexicon toward its construction costs. If it was an enhancement, Elexicon would bear those costs.^[5]

The parties disagreed on the classification of MS16. Their Connection Agreement contained an arbitration provision, referring the question to the OEB and stipulating that such determination would be final and binding. Pursuant to that provision, WWLG wrote to the OEB’s Industry Relations office in February 2019 seeking a binding interpretation of the Distribution Code on four points: (1) whether MS16 constituted an expansion or an enhancement; (2) the allocation of capital costs between the parties; (3) whether Elexicon was entitled to charge WWLG $775,000 for future infrastructure relocation; and (4) the appropriate connection horizon.

Notably, WWLG asked the OEB to confirm whether the Industry Relations office could render a determination carrying the same authority as a formal OEB decision and, if not, to refer the matter for a full hearing.^[6]

The OEB responded through two staff letters. The first letter was issued in August 2019 by the OEB’s Vice President for Consumer Protection and Industry Performance, setting out its “views and conclusions” that Elexicon had properly classified MS16 as an expansion.^[7] WWLG objected, elevated the matter to a formal complaint with the OEB and requested a hearing. The second letter was issued by the OEB to the parties in December 2020 reaffirming the expansion classification (but slightly reducing the capital contribution amount). The second letter did not expressly address WWLG’s request for a hearing.^[8]

WWLG subsequently sought judicial review before the Divisional Court. The Divisional Court held it did not have jurisdiction to hear the judicial review because the OEB had not exercised a statutory power of decision, and WWLG had no standing to compel an OEB hearing.^[9] WWLG then pursued an application at the Ontario Superior Court of Justice, asking it to interpret the Distribution Code directly. The Superior Court dismissed the application as an abuse of process, finding the OEB had already resolved the dispute between the parties and that, in any event, the Distribution Code interpretations fell exclusively within the OEB’s jurisdiction.^[10] WWLG appealed both decisions to the Court, framing the Superior Court appeal as contingent on the Court dismissing the Divisional Court appeal.^[11] Since the Court allowed the Divisional Court appeal, it did not address the Superior Court appeal in detail.^[12]

The remainder of this commentary is limited to the Court’s analysis of the nature of the OEB letters and whether the OEB’s intervention amounted to a statutory power of decision.

COURT’S ANALYSIS

The OEB letters constituted a “decision” and not merely an “opinion”

The pivotal question on appeal was how to characterize the OEB’s correspondence to the parties. On this point, the Court departed from the Divisional Court’s finding that the OEB’s letters were merely non-binding “opinions” solicited by private parties.^[13]

The Court’s decision begins with section 105 of the OEB Act, which grants the OEB broad discretion to receive and resolve complaints concerning potential contraventions of enforceable provisions, and to investigate, mediate, or resolve such complaints as the OEB sees fit.^[14] A threshold issue was whether WWLG’s February 2019 letter qualified as a “complaint” under section 105 of the OEB Act. The Court found it did for two reasons. First, it was submitted by an affected consumer to the OEB’s Industry Relations office, the body responsible for complaints.^[15] Second, its substance challenged Elexicon’s classification of MS16 to be inconsistent with the Distribution Code, the interpretation of which is within the OEB’s exclusive jurisdiction.^[16]

The Court then considered whether the OEB has the statutory authority to decide a dispute through section 105 of the OEB Act. Reading the provision harmoniously with the broader OEB Act, the Court treated the text’s distinction between “mediating” and “resolving” complaints as deliberate: the former is consensual and non-binding, while the latter encompasses binding determinations.^[17] The Court found that sections 19(1) and 19(6) of the OEB Act reinforce this interpretation, vesting the OEB with exclusive authority to determine all questions of fact and law within its jurisdiction.^[18]

The Court cited prior case law in support of its interpretation. In Bennett v Hydro One Inc.,^[19] the OEB’s extensive complaint powers were cited as a reason a class action was less preferable. In Vista Waterloo Hotel Inc. v 1426398 Ontario Inc.,^[20] the court accepted that the OEB’s resolution of a complaint fell within its exclusive jurisdiction. Two related decisions prior to the enactment of section 105 of the OEB Act also recognized the OEB’s discretion over its own complaint process and the permissibility of an OEB decision as a matter of judicial review.^[21] On this basis, the Court concluded that section 105 of the OEB Act conferred on the OEB the discretion to accept the referral and resolve the dispute through an interpretation of the Distribution Code over which it has exclusive jurisdiction.^[22]

The next issue considered by the Court was whether the OEB reached a final decision or otherwise merely expressed a non-binding opinion. The Court rejected the Divisional Court’s characterization of WWLG as having only sought the OEB’s “opinion”. Rather, the Court found the Connection Agreement’s arbitration clause and WWLG’s express request for a “final and binding” interpretation made clear the parties were seeking a decision.^[23]

Notably, the OEB’s own conduct supported the Court’s finding. The August 2019 letter set out the OEB staff’s “views and conclusions” without disclaiming binding authority.^[24] The December 2020 letter subsequently reaffirmed those conclusions, adjusted the capital contribution downward and closed the file without addressing WWLG’s request for a hearing. The Court accordingly concluded the December 2020 letter was the OEB’s final decision, incorporating the earlier analysis by reference, and that together the two letters constituted “the decision and reasons of the [OEB], interpreting and applying the [Distribution] Code to resolve the complaint.”^[25]

The letters constituted an exercise of the OEB’s statutory power of decision

With the nature of the OEB letters settled, the Court turned to the separate but related question of whether the letters together constituted an exercise of its statutory power of decision making under section 1 of Ontario’s Judicial Review Procedure Act^[26] (“JRPA”), thus giving rise to judicial review under subsection 2(1)2 of the JRPA.

Subsection 2(1)2 of the JRPA provides that judicial review is available by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. The relevant defined terms are set out in section 1 of the JRPA, defining “statutory power” to include the “exercise of a statutory power of decision”, which is further defined as follows:

…a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

The Court’s analysis accordingly entailed two elements. First, the decision must flow from a power conferred by statute. Second, it must decide or prescribe the legal rights, powers, privileges, immunities, duties, or liabilities of any person or party.^[27]

On the first element, the Court’s conclusion followed directly from its earlier statutory interpretation of section 105 of the OEB Act that the OEB’s use of section 105 jurisdiction was “by definition, the exercise of a power conferred by statute to make a decision.”^[28] The Court was unpersuaded by the Divisional Court’s reliance on the permissive language of “may” in section 105 of the OEB Act as a basis for concluding the OEB had not exercised a statutory power. While the initial decision to take up the referral was discretionary, once the OEB did its determination attracted the ordinary public law principles of reviewability.^[29]

WWLG objected that the OEB’s determination was communicated by staff letter, not by Commissioner order. On behalf of the OEB itself, it was argued that the OEB’s “primary mandate” to hear and determine questions of fact and law is conferred on panels of Commissioners who act by formal order after a hearing.^[30]

The Court was not persuaded by these arguments, noting the exclusive jurisdiction provision in section 19 of the OEB Act speaks of “the Board” not “the Commissioners.” Further, the OEB had not argued it lacked the institutional capacity to decide matters through staff analysis or communications.^[31] More broadly, the Court emphasized that regulatory bodies routinely issue decisions in forms other than formal orders, and that the vehicle of communication cannot insulate a determination from judicial scrutiny.^[32]

The Court drew from the Federal Court of Appeal’s analysis in Telus Communications Inc. v. Federation of Canadian Municipalities,^[33] where the Canadian Radio-television and Telecommunications Commission’s language in addressing a dispute was found to be definitive rather than tentative. The Court found the cases to be analogous: the OEB’s framing in its December 2020 letter left no room for further reconsideration, signalling an intention to settle the matter conclusively.^[34]

On the second element, the Court concluded the OEB’s determination affected the parties’ legal rights in a concrete way. By interpreting and applying the Distribution Code, the OEB defined what Elexicon was entitled to charge under its licence and, as a result, fixed the financial obligations flowing from the parties’ contractual relationship.^[35]

With both elements of the statutory definition met, the Court held the OEB letters constituted an exercise of a statutory power of decision under section 1 of the JRPA, and were therefore reviewable under section 2(1)2 of the JRPA. In so doing, the Court wrote in part:

“Administrative decision makers, especially regulatory bodies, may issue decisions in many forms. The fact that a decision may be conveyed in a letter rather than an order is no bar to judicial review…”^[36]

PROSPECTIVE CONSIDERATIONS

Curiously, the Court made its findings without any express consideration of nor reference to the delegation authority under subsection 6(1) of the OEB Act which permits the OEB Chief Commissioner to delegate to OEB staff members “any power or duty” with respect to the hearing and determination of matters over which the OEB has jurisdiction.

Indeed, it is this delegation authority that is primarily relied upon for the vast majority of applications brought to the OEB. According to the OEB’s most recent adjudicative reporting for the April 1, 2025 to March 31, 2026 fiscal year, 205 of a total of 272 decisions were issued by a delegated authority.^[37] Based on the Court’s decision, it is reasonable to conclude that subsection 6(1) delegated determinations are subject to possible judicial review similar to determinations made under section 105 of the OEB Act. However, the application of the Court’s decision to other types of OEB communique is less clear.

On the one hand, the Court expressly distinguishes section 105 determinations from OEB staff “compliance bulletins.” It does so on the basis that in the case of staff bulletins the “OEB expressly issues opinions that it intends to be non-binding.”^[38] This is similar to the OEB’s approach to issued letters providing guidance to the industry regarding the implementation of new legal and regulatory requirements:

“Similar to Bulletins, these letters are not binding on the OEB; however, regulated entities are expected to follow the guidance and staff will rely on it in assessing applications, addressing complaints and conducting inspections to ensure compliance with the requirements.”^[39]

On the other hand, there are instances where OEB staff provide advice and guidance where the binding effect is sometimes unclear. For example, as was initially the case with WWLG and Elexicon, stakeholders submit written enquiries to OEB staff through the Industry Relations office for advice and guidance on various points of interpretation concerning provisions of the OEB Act and prescribed regulations, as well as of the OEB’s numerous codes, rules and filing requirements.^[40]

Responding interpretations from OEB Industry Relations staff are relied upon by stakeholders in, among other things, determining the applicability of mergers, acquisitions, amalgamations and divestitures (“MAADs”) notice requirements and/or licensing exemptions. These types of OEB staff interpretations can therefore have tangible commercial ramifications arguably affecting parties’ “legal rights, powers or liabilities.”

Like section 6 decisions, these determinations require an interpretation and application of law which fall within the OEB’s exclusive jurisdiction. Like section 105 decisions, these types of OEB determinations may be the result of a complaint or disagreement between negotiating commercial parties as to the correct scope and application of legislative or regulatory provisions to the specific circumstances of a proposed transaction.

If these types of OEB staff communications are binding, then they should be subject to judicial review similar to the findings by the Court in WWLG. If they are non-binding, which OEB staff will sometimes expressly state to be the case (i.e., are non-binding on a panel of OEB Commissioners), then it is unclear what the appropriate avenue of recourse is for applicants seeking a second opinion or review. The latter is particularly concerning given the Court’s obiter supporting the Divisional Court’s finding that WWLG did not have the requisite legal standing to compel the OEB to hold a hearing to re-consider the decision on the substantive complaint at issue.^[41]

The need for additional clarity on what types of OEB staff communications are binding versus non-binding is even more pertinent in light of recent legislative changes.

The Protect Ontario by Securing Affordable Energy for Generations Act, 2025 added to the OEB’s statutory objectives supporting “economic growth” in relation to the regulation of the electricity sector.^[42] The Protect Ontario by Securing Affordable Energy for Generations Act, 2025 also adds a new section 13.1 to the OEB Act authorizing the OEB Chief Executive Officer to “issue policies to commissions and employees of the [OEB] respecting … timelines for making a determination [delegated] under section 6…[and] information or documents to be considered in…making a determination.”^[43]

These legislative provisions were subsequently relied upon by the OEB Chief Executive Officer in issuing a public letter on December 16, 2025 stating in part that:

“The [Protect Ontario by Securing Affordable Energy for Generations Act, 2025] also empowers the OEB’s CEO to issue policies to Commissioners and employees of the OEB with respect to timelines for, and information or documents to be considered in adjudicative proceedings, whether decided by a panel of Commissioners or an employee under delegated authority. I see this as a critical tool to ensure that government policy is considered in deciding applications before the OEB, and that adjudicative matters are dealt with efficiently and effectively”.^[44]

Given this affirmation of the OEB’s role as a policy taker (rather than a policy maker), what internal OEB procedures or training are in place that may reassure stakeholders that delegated staff decisions, whether expressly made under section 6 or section 105 of the OEB Act or otherwise, will be based on a consistent interpretation and application of the new statutory objective to support economic growth in Ontario? How can stakeholders know if and to what extent such OEB staff interpretations may be judicially reviewed?

The OEB may wish to use the Court’s decision in West Whitby Landowners Group Inc. v Elexicon Energy Inc. as a springboard for initiating a holistic review of how it communicates regulatory directions, including other instances of non-binding tools the OEB uses to provide guidance to and, in some cases, impose requirements on regulated utilities and other stakeholders.

For example, the OEB’s Handbook to Electricity Distributor and Transmitter Consolidations which is intended “to provide guidance to applicants and stakeholders on applications to the OEB for approval of distributor and transmitter consolidations and subsequent rate applications,”^[45] states in part:

“This Handbook documents OEB policy. Similar to other policies, OEB panels [of Commissioners] considering individual applications are not bound by the OEB’s policy, and where justified by specific circumstances, may choose to apply or not to apply the policy (or to apply a part of the policy).”^[46]

Similarly, the OEB’s Benefit-Cost Analysis Framework for Addressing Electricity System Needs (the “BCA Framework”), which “outlines the methodology electricity distributors are to employ when assessing the economic feasibility of using distributed energy resources (DERs) as non-wires solutions (NWS) to address defined electricity system needs,”^[47] including mandatory requirements for electricity distributors, provides in part:

“The OEB will take account of the BCA Framework in its review of rate applications. However, the BCA Framework is not binding on the OEB’s determination, which will also consider the particular circumstances of an electricity distributor’s application.”^[48]

Do these types of provisions provide the necessary level of regulatory certainty and understanding that “recognizes the importance of consistency and predictability of process for both policy and adjudicative matters, while also recognizing that substantive regulatory outcomes will depend on the specific facts and circumstances which emerge in adjudication or through policy processes”?^[49] Are there better ways that guidance and direction can be provided to regulated entities and other stakeholders that minimizes ambiguity while still maintaining the discretionary authority and active adjudicative approach of OEB Commissioners? Arguably, the better approach is for the OEB to provide such guidance to industry participants, rather than be driven by participants’ foresight and deliberation to expressly include the OEB as an arbiter of potential future disputes, as was the case in WWLG.

CONCLUSION

The effectiveness of a regulator is in no small part a function of its ability to issue clear and consistent guidance and decisions to the entities it regulates, as well as sector stakeholders, to ensure that all parties have a shared understanding of the regulatory framework. This requires the regulator itself (e.g., across staff, adjudicators, and other decision-makers) to have a consistent shared interpretation and understanding of regulatory policies and requirements. Such an environment is needed to ensure that when the regulator communicates, whether by staff through correspondence or by adjudicators through formal adjudicative decisions, the ensuing regulatory interpretations are aligned and not working at cross purposes. With this outcome in mind, further clarity from the OEB on the issues examined in this commentary would be welcomed, particularly given the current rapidly evolving nature of energy policy and regulation in Ontario.

• * Reena Goyal is an energy regulatory lawyer, and Alice Xie is an articling student, in the Toronto office of Blake, Cassels & Graydon LLP (“Blakes”). Roy Hrab is Senior Manager, Policy Research at Power Advisory LLC. The views expressed in this article are those of the authors alone, and do not necessarily reflect those of Blakes nor Power Advisory LLC.

  ¹ West Whitby Landowners Group Inc v Elexicon Energy Inc, 2025 ONCA 821 [WWLG].

• ² Ontario Energy Board Act, 1998, SO 1998, c 15, Sched B.

• ³ Supra note 1 at para 3.

• ⁴ Ibid at para 4.

• ⁵ Ibid at para 5.

• ⁶ Ibid at para 6.

• ⁷ Ibid at para 7.

• ⁸ Ibid at para 8.

• ⁹ Ibid at para 10.

• ¹⁰ Ibid at para 16.

• ¹¹ Ibid at paras 24–25.

• ¹² Ibid at para 26.

• ¹³ Ibid at para 13.

• ¹⁴ Ibid at para 47.

• ¹⁵ Ibid at para 50.

• ¹⁶ Ibid at para 51.

• ¹⁷ Ibid at para 54.

• ¹⁸ Ibid at para 56.

• ¹⁹ Bennett v Hydro One Inc, 2017 CanLII 7065 (ONSC).

• ²⁰ Vista Waterloo Hotel Inc v 1426398 Ontario Inc & Ontario Energy Board, 2021 ONSC 2724.

• ²¹ Supra note 1 at para 61.

• ²² Ibid at para 64.

• ²³ Ibid at para 68.

• ²⁴ Ibid at para 71.

• ²⁵ Ibid at para 81.

• ²⁶ Judicial Review Procedure Act, RSO 1990, c J.1.

• ²⁷ Supra note 1 at para 92.

• ²⁸ Ibid at para 96.

• ²⁹ Ibid at para 100.

• ³⁰ Ibid at para 101.

• ³¹ Ibid.

• ³² Ibid at para 104.

• ³³ Telus Communications Inc v Federation of Canadian Municipalities, 2023 FCA 79.

• ³⁴ Supra note 1 at para 106.

• ³⁵ Ibid at para 113.

• ³⁶ Ibid at para 104.

• ³⁷ Ontario Energy Board, “Adjudicative Reporting Dashboard” (last visited 16 April 2026), online: OEB <oeb.ca/applications/adjudicative-reporting-dashboard>.

• ³⁸ Supra note 1 at para 109.

• ³⁹ Ontario Energy Board, “Staff bulletins and guidance to industry” (last visited 2 April 2026), online: OEB <oeb.ca/regulatory-rules-and-documents/staff-bulletins-and-guidance-industry>.

• ⁴⁰ Ontario Energy Board, “Contact the Ontario Energy Board” (last visited 2 April 2026), online: OEB <oeb.ca/contact-ontario-energy-board>.

• ⁴¹ Supra note 1 at paras 120, 125.

• ⁴² Protect Ontario by Securing Affordable Energy for Generations Act, 2025, 1^st Sess, 44^th Parl, Ontario, 2025, Sched 3, s 1.

• ⁴³ Ibid at Sched 3, s 6.

• ⁴⁴ Letter from Carolyn Calwell, CEO, Ontario Energy Board to Ontario Energy Board Stakeholders (17 December 2025), at 2, online: OEB <oeb.ca/regulatory-rules-and-documents/whats-new-newsletter/whats-new-2025-12-17-1%5C>.

• ⁴⁵ Ontario Energy Board, Handbook to Electricity Distributor and Transmitter Consolidations (11 July 2024), at 3, online (pdf): OEB <oeb.ca/sites/default/files/2024-maads-handbook-20240711.pdf>.

• ⁴⁶ Ibid at 5.

• ⁴⁷ Ontario Energy Board, Benefit-Cost Analysis Framework for Addressing Electricity System Needs (16 May 2024), at 3, online (pdf): OEB <oeb.ca/sites/default/files/uploads/documents/regulatorycodes/2024-05/OEB_BCA_Framework_FINAL-AODA.pdf>.

• ⁴⁸ Ibid at 8.

• ⁴⁹ Ontario Energy Board, Top Quartile Regulator Report – Phase 1 (31 March 2021), at 20, online (pdf): OEB <oeb.ca/sites/default/files/OEB-top-quartile-regulator-report-20210331.pdf>.