DATE: 20040126

DOCKET: C40159

COURT OF APPEAL FOR ONTARIO

RE: GRAYWOOD INVESTMENTS LIMITED (Plaintiff/Appellant)

–and– TORONTO HYDRO-ELECTRIC ENERGY SYSTEM LIMITED and ONTARIO ENERGY BOARD (Defendants/ Respondent)

BEFORE: LABROSSE, MOLDAVER and GILLESE JJ.A.

COUNSEL: Robert J. Howe and David S. Cherepacha for the appellant

Frank Newbold, Q.C. for the respondent

HEARD: January 21, 2004

On appeal from the judgment of Justice Alexandra Hoy of the Superior Court of Justice dated May 16, 2003.

E N D O R S E M E N T

[1] The appellant appeals the decision of the motions judge who dismissed Graywood Investments Limited’s (“Graywood”) claim on the basis that the Ontario Energy Board (“OEB” or “the Board”) had exclusive jurisdiction over the subject-matter of the claim and that the action amounted to an abuse of process.

[2] Pursuant to its powers under the Ontario Energy Board Act, S.O. 1998, c. 15 (“the Act”), the OEB approved and published a Distribution System Code dealing with conditions that a distributor of electricity must meet in carrying out its obligations under its license. The OEB ruled that the Code does not apply to projects “that are the subject matter of an agreement entered into before November 1, 2000.”

[3] The essence of the dispute between Graywood and Toronto Hydro-Electric Energy System Limited (“Hydro”) is whether Hydro was in breach of its license in failing to apply the Code. In that regard, the motions judge found, correctly in our view, that the dispute was one that fell squarely within the exclusive jurisdiction of the Board under s. 75 of the Act.

[4] In the circumstances of this case, the determination of that dispute turned on whether the parties had entered into an agreement, within the meaning of the Code, prior to November 1, 2000. That was a matter for the Board to decide, in accordance with its authority under s. 19(1) of the Act.

[5] This action by Graywood is based on the same fundamental issue as to whether there was an agreement between the parties prior to November 1, 2000, within the meaning of the Code.

[6] The application for judicial review brought by Graywood against Hydro and the OEB is also based on the same issue.

[7] In our view, the fundamental issue was within the exclusive jurisdiction of the OEB. The complaint of Graywood may be a matter of judicial review, but this action is nothing more than an attempt to circumvent the OEB’s decision.

[8] We agree with the conclusion of the motions judge.

[9] We would dismiss this appeal with costs fixed at $9,000.

Signed: “J.-M. Labrosse J.A.”

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”