Pollution Probe Foundation v. Ontario Energy Board, 2012 ONSC 3206

Overview

The applicant, Pollution Probe Foundation, seeks judicial review of a March 29, 2011 letter of the Ontario Energy Board (“the Board”), which included draft Demand Side Management (“DSM”) guidelines to be used in natural gas rate hearings. As well, the applicant challenges the final guidelines issued June 30, 2011. In particular, the applicant submits that the Board made a decision to impose budget caps in the March letter.

2The applicant argues that the process for adopting the guidelines was improper, as no hearing was held under s.21(2) of the Ontario Energy Board Act, S.O. 1998, c. 15, Sched. B (“the Act”). In particular, the applicant objects to the budget caps and argues that a hearing was required because the guidelines are, in effect, binding on the Board and parties.

[3]

Mootness

The Board, supported by the intervenors, the Consumers Council of Canada and the School Energy Coalition, seeks to have the application quashed as moot.

4There have been two rate hearings since the DSM guidelines were issued involving Union Gas Limited and Enbridge Gas Distribution Inc. The applicant participated in both those proceedings. In both cases, the Board approved arrangements that departed from the DSM guidelines. As well, a member of the panel in the Union Gas hearing, Cathy Spoel, expressly acknowledged that the guidelines are not binding. In addition, counsel for the Board filed an affidavit for this application in which he stated that the guidelines are not binding on any party, as they are not orders of the Board. He stated at paragraph 19 of his affidavit:

Generally speaking, these guidelines will be considered by the Board panel assigned to any hearing to which they are relevant, but the panel is not bound to follow them.

5As a result, there is no longer a live controversy as to whether the Board considers the guidelines to be binding, and the application for judicial review is moot (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at para. 15).

6While the Court has a discretion to hear an application despite its mootness, we would not exercise that discretion here. The applicant has another avenue to challenge the DSM guidelines, including the budget caps, in a rate proceeding before the Board. We note that the applicant chose not to travel that route in the two rate hearings already held.

7We decline the applicant’s invitation to give a declaration about the non-binding nature of the guidelines. Unless the Board applies the guidelines in a binding fashion, the Court should not address the issue.

[8]

Disposition

The motion to quash is granted, and the application for judicial review is quashed.

JENNINGS J.

COSTS

[9]

Costs

I endorse the Record, “This application is quashed for reasons delivered today by Swinton J. Having had the benefit of submissions from counsel, we fix costs to be payable by Pollution Probe to the Board at $2,500.”