Rogers Communications Canada Inc. v. Ontario Energy Board, 2020 ONSC 6549

CITATION: Rogers Communications Canada Inc. v. Ontario Energy Board, 2020 ONSC 6549

DIVISIONAL COURT FILE NO.: 255/18

(Ontario Energy Board) File No. EB-2015-0304

DATE: 20201102

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

IN THE MATTER OF the Ontario Energy Board Act, 1998,

S.O. 1998, c. 15, (Schedule B);

AND IN THE MATTER OF an Updated Pole Attachment

Charge for Wireline Pole Attachments (OEB File Number:

EB-2015-0304)

Backhouse, Lederer, D. Edwards JJ.

BETWEEN:

ROGERS COMMUNICATIONS CANADA INC., BRAGG COMMUNICATIONS INC., CANADIAN CABLE SYSTEMS ALLIANCE, COGECO CONNEXION INC., INDEPENDENT TELECOMMUNICATIONS PROVIDERS ASSOCIATION, ZAYO CANADA INC. (FORMERLY ALLSTREAM INC.), NIAGARA REGIONAL BROADBAND NETWORK, PACKET-TEL CORP. (O/A PACKETWORKS), QUÉBECOR MÉDIA INC., SHAW COMMUNICATIONS INC., TBAYTEL, TELUS COMMUNICATIONS INC., BH TELECOM

Appellants

– and –

THE ONTARIO ENERGY BOARD

Respondent

COUNSEL:

Timothy Pinos, Christopher Selby, for the Appellants

M. Philip Tunley, Jennifer Saville, for the Respondent

HEARD: September 29, 2020

REASONS FOR JUDGMENT

LEDERER, J.

[1] Following a policy review the Ontario Energy Board issued a report dated March 22, 2018. It increased the province-wide default price that electrical utilities are permitted to charge telecommunications for attaching their cables to electricity poles from $22.35 to 43.63. The telecommunication companies object. They say that the process leading to the report and the increase contravened the requirements of the Ontario Energy Board Act[^1] and denied them procedural fairness.

Background

[2] There are many tens of thousands of hydro poles all across the province of Ontario. Their primary use is to carry lines that distribute electricity to homes and businesses. For the most part they are owned by electricity utilities (“local distribution companies” or “LDCs”). Viewed more broadly, these poles are an asset. They can be used for other purposes albeit for a charge that defrays the cost and adds to the revenue of the owner of the poles (the LDC). The Appellants are companies that own cables used to deliver television signals and other telecommunication services. For them, the hydro poles presented an opportunity. Initially those companies entered into a private contract with the LDCs for space on the poles to be made available to carry their cables. The contract expired in 1996. The parties had been unable to reach a new agreement as to the charge. To make full use of the facility and the opportunity a different approach was required.

[3] The Ontario Energy Board, among other responsibilities, regulates the distribution of electricity in Ontario. Its objectives include:

To promote economic efficiency and cost effectiveness in the generation, transmission, distribution, sale and demand management of electricity and to facilitate the maintenance of a financially viable electricity industry.[^2]

[4] In December 2003, the Appellant, the Canadian Cable Television Association (“CCTA”), applied to the Board, on behalf of all cable companies (referred to in the material as “Carriers”), requesting access to the poles on uniform terms at a province-wide uniform rate. At the time there was a freeze of rates applicable to electricity. Any change to the rates, as set by the Ontario Energy Board, were subject to the approval of the Minister. The application did not seek a rate change. Rather it relied on section 74 of the Ontario Energy Board Act:^3

74 (1) The Board may, on the application of any person, amend a licence if it considers the amendment to be,

(b) in the public interest, having regard to the objectives of the Board and the purposes of the Electricity Act,

[5] The application asked that the licences of the LDCs be amended to include a condition providing the requested access at a standard cost. At the outset, the Ontario Energy Board asked the CCTA and other stakeholders whether the application was properly brought as a request for an amendment of the licences or whether it should have been brought, pursuant to section 78, as an application for a change in the rates charged for the transmission of electricity:

78 (1) No transmitter shall charge for the transmission of electricity except in accordance with an order of the Board, which is not bound by the terms of any contract.

(3) The Board may make orders approving or fixing just and reasonable rates for the transmitting or distributing of electricity, unit smart metering or such other activity as may be prescribed and for the retailing of electricity in order to meet a distributor’s obligations under section 29 of the Electricity Act.

[6] The Board was convinced by submissions of seven parties including the CCTA that the written approval of the Minister was not required because the application did not seek a rate for the distribution of electricity.[^4] The application was accepted and recognized as having been properly brought under s.74 as a request to amend the licence.

[7] The Ontario Energy Board rendered its decision on the application made by the CCTA on March 7, 2005. Although the decision makes no reference to it, the parties agree that this determination followed upon a hearing involving all interested parties that had been conducted by the Board to consider the issues that had been raised. The Board accepted that mandatory access, based on a province-wide rate, was in the public interest, and that this would apply as a condition of all LDC’s Licences[^5]

[8] As a result, since 2005, the licences held by LDCs have included the condition that:

The Licensee shall provide access to its distribution poles to all Canadian carriers, as defined by the Telecommunications Act and to all cable companies that operate in the Province of Ontario. For each attachment, with the exception of wireless attachments, the Licensee shall charge the rate approved by the Board and included in the Licensee’s tariff.[^6]

Variation Applications from the Province-Wide Charge

[9] The decision providing for mandatory access expressly gave LDCs the option of applying for a variation from the province-wide charge if their circumstances warranted it.[^7] For several years, none of them applied. However, since 2014 several LDCs have brought applications before the Board to depart from the province-wide default pole attachment charge, as follows:

(a) the Board approved a settlement agreement whereby Toronto Hydro Electric System Limited’s pole attachment charge was increased to $42.00;[^8]

(b) the Board approved an increase to Hydro Ottawa Limited’s pole attachment charge to $53.00,[^9]

(c) the Board approved an increase to Hydro One Networks Inc.’s pole attachment charge to $41.28;[^10] and

(d) the Board approved a settlement agreement whereby InnPower Corporation’s pole attachment charge was increased to $38.82.[^11]

[10] It should be noted that two of these four subsequent individual determinations (Hydro Ottawa Limited and Hydro One Networks Inc.) were the subject of hearings undertaken by the Board. At those hearings, the Carriers or some of them took part. The other two individual considerations of the issue were settled without a hearing.[^12]

[11] Outside of these four individual inquiries the province-wide charge had remained unchanged. It continued as it had been imposed, in 2005, at a value of $22.35. The increases determined in the four intervening cases suggested that the charge was undervalued and out of date.[^13]

Ontario Energy Board’s Policy Review

[12] By letter dated November 5, 2015 the Ontario Energy Board announced its intention to conduct a “comprehensive policy review of miscellaneous rates and charges applied by electricity distributors for specific activities or services they provide to their customers”.[^14] What is the apparent is that this policy review was not concerned with only the pole attachment charges:

This review will encompass many different categories of miscellaneous rates and charges and therefore will be conducted through a number of phases and components. The first phase will consider specific service charges as defined in the OEB’s 2006 Distribution Rate Handbook. These charges generate miscellaneous service revenues that result in lower distribution rates and include charges for customer administration, non-payment of accounts, service calls, temporary services, pole attachments and distributor-specific services.[^15]

[13] However, the pole attachment charge was a priority. It was to be the first subject considered:

As a first component of this phase, the OEB plans to prioritize the review of wireline pole attachments.[^16]

[14] The review was to begin with the selection of a Pole Attachment Working Group (“PAWG”); a group of people representing the wireline industry, electricity distributors and consumer groups who were to provide advice on the technical aspects and related details to be addressed in respect of pole attachments. Membership of the PAWG was not open to all interested parties. Instead, staff of the Ontario Energy Board selected a representative group of people based on nominations or expressions of interest. In addition to setting up the PAWG, the Ontario Energy Board retained NGL Nordicity Group Limited (“Nordicity”) as an expert consultant with technical expertise in pole attachments and cost allocation methodologies for determining wireline pole attachment charges. Nordicity was retained to provide expert input and analysis on matters such as the costing data and the methodology used for determining such charges.[^17] The letter announcing the review indicated that it was expected, and, in fact, the PAWG met four times. These meetings were facilitated by Nordicity together with staff of the Ontario Energy Board.[^18] Nordicity’s role was to provide expert input and analysis of the key issues for discussion as the PAWG, to get the feedback of PAWG members on those key issues, and to produce an expert report to the Board.[^19]

[15] Following the conclusion of the fourth and final PAWG meeting on January 31, 2017, Board staff circulated a February 16, 2017 email requesting that PAWG Members provide their comments on certain “key” issues that had been identified by Board staff.[^20] The Carriers submitted their comments on March 3 and 6, 2017.[^21] On March 7, 2017, the Director, Municipal and Industry Relations, Corporate Affairs of Rogers Communications wrote to the Secretary of the Ontario Energy Board complaining about the unfairness of the PAWG process:

In the absence of a complete evidentiary record and an opportunity for all interested stakeholders to test that record through interrogatories and cross-examination (and the ability to submit argument in excess of 1000 characters on material issues), there is no basis for trying to reach a consensus on any issue. Nor is it possible to make recommendations or determinations in accordance with the principles of procedural fairness and evidence-based decision-making.[^22]

[16] On December 14, 2017, Nordicity provided a Report to the Ontario Energy Board which summarized the results of the PAWG meetings and made recommendations addressing “the technical and policy issues associated with determining the Pole Attachment Charges”.[^23] The Nordicity Report was provided to PAWG members, and made accessible to other stakeholders and the public through the Board’s website, on December 18, 2017.

[17] On the same day (December 18, 2017) the Ontario Energy Board issued a draft of its proposed report on the policy review (“Draft Report”). This Draft Report stated that the Ontario Energy Board “intends to set a province wide wireline pole attachment charge of $52.00”,[^24] and also stated that the Board was establishing “a mechanistic process for annually updating” that charge.[^25] The Board invited interested persons to provide comments on the Draft Report. In response to that invitation for comments, the Board received 33 submissions from interested stakeholders, including LDCs, ratepayer and consumer groups, and representatives of the Carriers. In particular, I make note of the submission of the Appellant, Rogers Communications Canada Inc. apparently dated February 9, 2018 filed on behalf of itself and each of the other 12 Appellants.[^26] It was highly critical of the PAWG process, the Nordicity Report and the Draft Report:

We are pleased to have had the opportunity to provide our comments in this proceeding. We believe that it was necessary to demonstrate unequivocally and repeatedly how fundamentally flawed the whole consultation process was and how these flaws were manifested and even amplified in the recommendations of the Draft Report.[^27]

[18] The Board issued its Final Report on March 22, 2018. The Board determined that it was in the public interest to raise the province-wide Pole Attachment Charge to $43.63. This is lower than the $52.00 recommended in the Draft Report. This is said to have occurred taking into account the comments of stakeholders. The lowering of the charge referred to only one of the issues raised:

The $43.63 pole attachment charge is lower than the $52 pole attachment charge recommended in the OEB’s draft report, which was issued for comment in December 2017. After considering the comments of stakeholders, the OEB decided to remove vegetation management costs from the charge at this time, thus lowering the pole attachment charge.[^28]

[19] In its Final Report the Ontario Energy Board did respond to another concern. The pole attachment charge is a cost to the carriers (the cable companies). Many of them, particularly the smaller rural ones noted that the pole attachment charge was a significant expense and a potential barrier to expansion. To mitigate the impact of the increased cost the Board allowed that the new charge should be phased in:

As a transitional measure, from September 1, 2018 to December 31, 2018, the pole attachment charge will be $28.09, which represents the escalation of the 2005 charge by inflation. The $43.63 will take effect on January 1, 2019. There will be no inflationary increase for 2019.[^29]

[20] There is a further limitation applicable to the implementation of the new charge:

Consistent with the implementation process for the 2005 pole attachment charge, the new charge is being updated by the OEB pursuant to each distributor’s distribution licence. The charge will apply to all LDCs that do not have an OEB-approved LDC specific charge in place.[^30]

[Emphasis added]

[21] Consistent with this understanding, it was only those LDCs “without a specifically approved OEB pole attachment charge” which were sent letters notifying them “of the change to the province-wide pole attachment charge”.[^31] The impact of this is that this new charge did not impact the poles owned by those LDCs that sought and have had their charges individually evaluated: Toronto Hydro Electric System Limited, Hydro Ottawa Limited, Hydro One Networks Inc. and InnPower Corporation.

[22] In this proceeding the Appellants seek to quash and set aside the Final Report and remit the matter back to the Ontario Energy Board for a full hearing in accordance with any reasons or directions to be provided by this Court.

[23] This proceeding was commenced, on April 23, 2018. as an appeal brought pursuant to the Ontario Energy Board Act, s. 33:

33 (1) An appeal lies to the Divisional Court from,

(a) an order of the Board;

(b) the making of a rule under section 44; or

(c) the issuance of a code under section 70.1. 2003, c. 3, s. 28 (1).

The applicable subsection is ss. 33(1)(a).

[24] On May 8, 2018, counsel for the Board set out its position in response to the Carriers’ form of proceeding, stating among other things:

The Board does not believe this proceeding is properly framed as an appeal under s. 33(1) of the Ontario Energy Board Act. The Board’s position is that the Final Report of the Board in EB-2015-0304 is not an “order” within ss. 33(1)(a), as your Notice of Appeal suggests. Rather, to the extent judicial review is available at all against the Final Report, it should be sought under the Judicial Review Procedure Act. […][^32]

[25] A motion for directions was heard by the Associate Chief Justice of the Superior Court during which the parties consented, and the Court ordered, that the matter would proceed as an appeal in terms of procedure; that the Notice of Appeal would be amended to include an alternative request for the same relief under the Judicial Review Procedure Act[^33] and that the question as to whether this proceeding is properly framed as an appeal or judicial review would be left to the panel hearing the proceeding on its merits.

[26] There is no question; the Carriers (styled as Appellants) have a right to proceed to this Court. The Court has jurisdiction. The issue of whether this is by appeal or judicial review will be determined by whether or not there is an “Order” from which an appeal can be made.

[27] The impact, if there is any, is as to the standard of review to be applied. The appeal (or application) is only as to the process undertaken by the Ontario Energy Board. It does not touch on the substance of the decision or any legal implications it might have. The Carriers submit that the standard of review on issues of procedural fairness is correctness and that the Board is not entitled to deference.[^34] The Board submits that, this is “quintessentially a case where significant deference is owed to the procedural choices that have been made by the Board in determining the Province-wide Pole Attachment Charge.”[^35]

[28] The apparent divergence in these submissions has been recently considered by this Court in Quadrexx Hedge Capital Management Ltd. v. Ontario Securities Commission:

The standard of review for issues of procedural fairness is sometimes stated to be “correctness”. It is also characterized as a review as to “whether the rules of procedural fairness or the duty of fairness have been adhered to.” These formulations of the standard of review are generally taken to mean the same thing: there is discretion and flexibility respecting process before administrative tribunals, and so it cannot be said there is always a single “correct” view of the procedures to be followed. However, administrative discretion must be exercised in a way that is procedurally fair. In assessing procedural fairness in a particular case, the court uses the factors set out in Baker v. Canada (Minister of Citizenship and Immigration).[^36]

[29] The rationale for flexibility in respect of the process adopted by administrative tribunals was identified by the Federal Court of Appeal in Maritime Broadcasting System Limited v. Canadian Media Guild:

Looking at the matter from first principles, there is a case for the application of the reasonableness standard. As is often said, the concept of procedural fairness is “eminently variable and its content is to be decided in the specific context of each case” (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paragraph 21). The Board is best placed to decide this. It, not the reviewing court, is the fact-finder. It knows the circumstances in particular proceedings before it. It has expertise in the dynamics of labour relations and has policy appreciation. Armed with these advantages, the Board is master of its own procedure, free to design, vary, apply and, in reconsideration proceedings, assess its procedures to ensure they are fair, efficient and effective: Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3 at paragraph 88; Knight v. Indian Head School Division No. 19, 1990 138 (SCC), [1990] 1 S.C.R. 653 at page 685[^37]

[30] It is not that a reasonableness standard applies. It is that correctness does not, in respect to procedure, perceive a single answer. The tribunal involved is best positioned to determine the appropriate process. The level of deference is determined through the application of the factors found in Baker v. Canada, in particular:

While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints.[^38]

[31] Procedure is at the root of the objection taken to the imposition of the adjusted, province-wide, default pole attachment charge. As will become apparent as these reasons proceed, there is little, if any practical impact in whether this proceeding is an appeal or an application for judicial review. Nonetheless, I will return, later in these reasons, to whether there is an order that would make this proceeding properly commenced as an appeal.

Procedural Fairness-Failure to Hold a Hearing

[32] The first objection made is that the Ontario Energy Board, in undertaking the policy review, failed to follow the direction, found in the Ontario Energy Board Act, that the inquiry into, and the imposition of, the amended charge required it to hold a hearing. Whether the legislation imposes such an obligation is a matter determined by interpreting the applicable statute. Whatever flexibility there may be in choosing its procedures the Board cannot act outside what the statute directs. However, the Ontario Energy Board is interpreting its home statute. On this basis reasonableness would be the standard and deference applies:

For years, this Court’s jurisprudence has moved toward a recognition that the reasonableness standard should be the starting point for a court’s review of an administrative decision. Indeed, a presumption of reasonableness review is already a well-established feature of the standard of review analysis in cases in which administrative decision makers interpret their home statutes: see Alberta Teachers, at para. 30; Saguenay, at para. 46; Edmonton East, at para. 22. In our view, it is now appropriate to hold that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. While this presumption applies to the administrative decision maker’s interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision.[^39]

The Court did indeed sometimes find that, even in a statutory appeal, a deferential standard of review was warranted for the legal findings of a decision maker that lay at the heart of the decision maker’s expertise: see, e.g., Pezim. In other instances, however, the Court concluded that the existence of a statutory appeal mechanism and the fact that the decision maker did not have greater expertise than a court on the issue being considered indicated that correctness was the appropriate standard, including on matters involving the interpretation of the administrative decision maker’s home statute: see, e.g., Mattel, at paras. 26-33; Barrie Public Utilities, at paras. 9-19; Monsanto, at paras. 6-16.[^40]

[33] In considering whether the Ontario Energy Board Act required a hearing to be held, it is important to look at the question raised by the Ontario Energy Board in 2005. As noted above, what was submitted by the Carriers in 20054 was that their application did not seek a rate for the distribution of electricity under s. 78 of the Ontario Energy Board Act. The Board accepted that he application was properly brought under s. 74 as a request to amend the licences on the basis that a pole attachment and any charge associated with it was not a rate for the distribution of electricity:

The view expressed by these parties is that because the Applicant is not seeking a rate for the distribution of electricity, within the meaning of the Ontario Energy Board Act, 1998, the Minister’s approval is not required… [^41]

[34] The submissions of the Appellants seek to override or set that ruling to the side.[^42] They rely on the Ontario Energy Board Act, s. 78(3):

The Board may make orders approving or fixing just and reasonable rates for the transmitting or distributing of electricity, unit smart metering or such other activity as may be prescribed and for the retailing of electricity in order to meet a distributor’s obligations under section 29 of the Electricity Act, 1998.[^43]

[35] The Appellants submit that the pole attachment charge is a rate that is “for the transmitting or distributing of electricity” or “for the retailing of electricity” and, therefor, is to be made by order, which pursuant to s. 21(2) of the Ontario Energy Board Act, requires that there be a hearing:

Subject to any provision to the contrary in this or any other Act, the Board shall not make an order under this or any other Act until it has held a hearing after giving notice in such manner and to such persons as the Board may direct.

[36] The use (really the rental) of space on a pole by a telecommunication company has nothing to do with the retailing or distribution of electricity. Simply put, the Appellants are selling a different product under a different legislative scheme. In the common use of the word the value of the charge could be called a “rate” but its meaning under the Ontario Energy Board Act is specific and more limited.

[37] I note that the Appellants, in their Factum and in the submissions by counsel, referred to the Ontario Energy Board Act s. 78(7). It says:

Upon an application for an order approving or fixing rates, the Board may, if it is not satisfied that the rates applied for are just and reasonable, fix such other rates as it finds to be just and reasonable.

[38] The application of this clause is conditional. There has to be an application to approve or fix a rate. The Board has to be of the view that the rate applied for is not “just and reasonable.” This being so the Board is authorized to fix another rate as it finds just and reasonable (presumably higher or lower or based on some other methodology or calculation). What this section does not do is to take the meaning of rate outside its application to the transmission, distributing and retailing of electricity.

[39] Is there any other provision requiring the Board to make, by order, any determination that there should be a pole attachment charge and at what value? Section 19(2) of the Ontario Energy Board Act provides:

The Board shall make any determination in a proceeding by order.

[40] What is a proceeding? The Rules of Practice and Procedure of the Ontario Energy Board define “proceeding” as:

a process to decide a matter brought before the Board, including a matter commenced by application, notice of appeal, transfer by or direction from the management committee, reference, request or directive of the Minister, or on the Board's own motion.

[41] A policy review of the sort undertaken by the Ontario Energy Board with respect to the pole attachment charge is a “proceeding”. Accordingly, any determination regarding the value and status of that charge would be made by order and under s. 21(2) of the Ontario Energy Board Act would, without going further, require a hearing. However, noting the opening words to section 21(2), there is a question: Is there a provision to the contrary? The proceeding in 2005 was brought as an application to amend licences “in the public interest”. Such a request does not require a hearing. There is a provision to the contrary, s. 70(1.1) of the Ontario Energy Board Act:

The Board may, with or without a hearing, grant an approval, consent or make a determination that may be required for any of the matters provided for in a licensee’s licence.

[42] The Board in its Final Report made clear that this was the section of the Ontario Energy Board Act it was relying on in making the change in the pole attachment charge:

The OEB has approved the new pole attachment charge pursuant to this licence condition, in accordance with section 70(1.1) of the Ontario Energy Board Act, 1998.[^44]

[43] The condition referred to is the condition added following the hearing and decision in 2005. On this basis no hearing would be required.

[44] I return to the preliminary issue left to this Court by the procedural order of the Associate Chief Justice. The Ontario Energy Board (the Respondent) submits that there is no order and one is not required. It is submitted that “[s]ince the Pole Attachment Charge is already a matter provided for as an LDC licence condition, an order under s. 19(2) is not necessary to give it legal effect.”[^45] This is not tenable. It presumes that once any condition to a licence has been included and given legal effect it can no longer be the subject of any “proceeding”. This is not correct. If an amendment to the condition is proposed it will be, as it was in 2005, the subject of an Order. On March 7, 2005, the Ontario Energy Board issued a “Decision and Order”, the last paragraph of which says:

THE BOARD ORDERS THAT: The license condition of the electricity distributors licensed by this Board shall as of the date of this Order be amended to provide that all Canadian carriers as defined by the Telecommunications Act and all cable companies that operate in the Province of Ontario shall have access to the power poles of the electricity distributors at the rate of $22.35 per pole per year.[^46]

[45] What is plain is that the Order, as made in 2005, included the amount of the charge. The condition as placed on the licences does not. It says: “the Licensee shall charge the rate approved by the Board.”[^47] To say that a change to what was specifically ordered by the Board does not, itself require an Order because it was not directly translated into the condition that was imposed is sophistry (subtly deceptive reasoning). To amend an order, you have to make an order. This is a situation where an Order is required for a matter provided for in a licence and, on that basis, need not be the subject of a hearing (s. 70 (1.1)). While it does not require a hearing there will be a process to consider the change. That process will be a proceeding, pursuant to s. 19(2) and, as such must result in an Order and comply with the requirements of procedural fairness as they apply in the circumstances. That being so such a proceeding can be the subject of an appeal pursuant to the Ontario Energy Board Act, s. 33(1)(a).[^48]

[46] The Ontario Energy Board Act, 22.1(1) requires:

The Board shall issue an order that embodies its final decision in a proceeding within 60 days after making the final decision.

[47] The Board, believing that no Order had been made, has not complied with this requirement. No submission was made, nor would it be reasonable to propose that the increase in the province wide charge is rendered a nullity by this omission, but an Order should be issued. By changing the amount of the charge, the Board has amended its Order of March 7, 2005.

[48] The Appellants submits that if it is found, as is has been, that the legislation does not require that a hearing be held, there must, nonetheless, be one. In saying this they raise the principle of legitimate expectation. This is the promise of a process (in this case a hearing) either through a specific undertaking, or past practice:

The distinguishing characteristic of a legitimate expectation is that it arises from some conduct of the decision-maker, or some other relevant actor. Thus, a legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, or that a positive decision can be anticipated. As well, the existence of administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a particular instance, may give rise to a legitimate expectation that such procedures will be followed. Of course, the practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified.[^49]

[Emphasis added]

[49] In relying on legitimate expectation, the Appellants point out that the Ontario Energy Board “has never set rates following a stakeholder consultation or a policy review”.[^50] This may be so but what is being considered is not a rate as that term is used in the Ontario Energy Board Act. The charge being considered does not relate to the transmission or distribution of electricity. In any case, what has not been done does little to advance an argument for legitimate expectation. It is not a principle that limits what a decision maker may do so much as it promises what it will do. In this vein, the Appellants argue that the “2005 Order followed a regulatory hearing for which interested parties were provided with notice and were afforded the opportunity to be heard. The OEB also held full rate hearings, including interrogatories and the opportunity to make submissions, with notice provided to all interested parties where LDCs applied for variations from the rate set in the 2005 Order (Toronto Hydro, Hydro Ottawa, Hydro One and InnPower)”.[^51]

[50] Understood properly, these asserted past practices do not stand as a promise for the future. This is not the confirmation of an accepted, confirmed or established approach to a long-standing concern. In this situation the Board was asked to regulate a relationship that had been subject to private contract but was no longer amenable to such an agreement. It had province wide application, would be beneficial to both sides and was in the public interest. This resetting of the methodology and the amount of the pole attachment charge was part of an evolution towards the establishment of a continuing process to determine the relationship between the parties for the benefit of the public. It is not surprising that, in 2005, there was a hearing. The parties sought the assistance of the Ontario Energy Board. It had not dealt with the problem before. A hearing would have, and presumably did, introduce the Board to the issues, concerns and problems as understood by those directly involved. It was an education.

[51] The evolutionary nature of the development of the pole attachment charge is demonstrated by the process through which it was varied for Hydro Ottawa Limited. On February 25, 2016 the Ontario Energy Board issued an Order and Decision approving a pole attachment charge of $53.00 per pole, per year, effective January 1, 2016.[^52] The Board’s decision was the subject of an appeal brought by a group of carriers. The Ontario Energy Board had already announced that the methodology for the calculation of the pole attachment charge was to be reviewed. This had been announced in the letter of November 5, 2015 and was underway. The Appellants sought to persuade the Board to revisit some of the methodology and assumptions underlying the 2005 Order. The Board determined that it would deal with the Hydro Ottawa application based on the 2005 methodology and would not hear evidence or argument on the reasonableness of that methodology. The Appellants submit that the Ontario Energy Board, having acknowledged that the 2005 methodology needed to be reviewed, erred by setting rates for Hydro Ottawa based on that outdated and flawed methodology.

[52] The Court found:

…All the OEB did was determine the appropriate procedure and timing for deciding the new methodology. The Board decided that this was a policy decision with broad ramifications and should be undertaken as a province-wide review with all stakeholders, including the appellants, having an opportunity to participate…

The OEB is in the best position to determine when and how to make a major policy decision such as this one. It is also in the best position to decide the potential impact of making a decision in one sector that could affect others without a broader consultation…

I do not consider the OEB to have breached procedural fairness by telling the appellants in this case that the time and place for them to challenge the 2005 methodology is within the broader policy review, rather than in this particular hearing dealing only with Hydro Ottawa.[^53]

[53] The Court concluded:

… The OEB engaged in a broad consultative process before setting the 2005 methodology. The Board determined that it would be appropriate to continue applying that methodology until such time as it was replaced or modified by a new methodology developed in the same manner. This is a broad policy issue, about which the OEB is far more knowledgeable and well-positioned to decide than is this court…[^54]

[54] Far from demonstrating an established practice to be relied on as the foundation for a legitimate expectation as to how questions concerning the value of the pole attachment charge would be dealt with, this case recognized that the development of that process was ongoing, as part of a larger evolution. As a result, the hearing that followed was not the open process the Appellants are demanding. It was limited. The methodology being applied was to be the one developed and used in 2005 and it was not open to examination or question.

[55] I turn now to the case concerning the variance in the charge to the benefit of Hydro One Networks Inc. The proceeding which determined the pole attachment charge applicable to that LDC was initiated by carriers. It was styled as: “Rogers Communications Partnership et al., and identified as: “Motion to Review and Vary Decision EB-2013-01416/EB-2014-0247 Approving Distribution Rates and Charges for Hydro One Networks Inc. for 2015-2017”. It begins:

Rogers Communications Partnership (Rogers) and several other cable and telecommunications providers and associations (collectively, the “Carriers”) brought this motion to review and vary the March 12, 2015 decision of the Ontario Energy Board (OEB) approving distribution rates for Hydro One Networks Inc. (Hydro One) for 2015 to 2017.[^55]

At the Carriers’ request, this motion provided an opportunity for a new hearing on the matter, with the objective being to establish a just and reasonable pole attachment charge.[^56]

[56] The review took place because the Carriers had not been given adequate notice that Hydro One Network Inc.’s rate application included a significant increase to the pole attachment charge. The Ontario Energy Board concluded that “a just and reasonable pole attachment charge is $41.28 per pole, per year.”[^57] However, it was not the result of a comprehensive viva voce hearing of the sort being sought. The carriers requested an oral hearing:

The Carriers brought a procedural motion on March 8, 2016 requesting: (a) that the motion to review and vary be heard orally, rather than in writing as required by Procedural Order No. 7….[^58]

[57] The Board “deferred its decision on the request for an oral hearing until the completion of the next round of interrogatories.”[^59] In the end it heard a procedural motion orally and limited evidence directed to the merits. Generally, the Ontario Energy Board relied on written submissions:

In Decision and Procedural Order No. 9, issued May 4, 2016, the OEB said it would hear the procedural motion orally on May 19, 2016, and ordered Hydro One to have a witness or panel of witnesses on standby that day who would be prepared to provide supplementary responses should the OEB determine they were necessary. At the oral hearing, Hydro One agreed to provide clarification on the issues raised by the Carriers, which it did by way of affirmed oral testimony by John Boldt, Hydro One’s manager of program integration.

At the conclusion of Mr. Boldt’s testimony, the OEB established a schedule for written submissions. In addition to Hydro One and the Carriers, the OEB received submissions from the five intervenors mentioned above, as well as OEB staff. The OEB also received letters of comment from 12 individuals, all of whom opposed Hydro One’s proposed increase to the pole attachment charge.[^60]

[58] This decision was appealed. It was argued by the Carriers, who were the Appellants, that the procedure was unfair. The procedure conducted by the Board was upheld. It was procedurally fair.[^61] Like Hydro Ottawa this was not the form of hearing sought by the Carriers relying on legitimate expectation.

[59] Neither are the two other cases where the province wide pole attachment charge established in 2005 was varied (InnPower and Toronto Hydro). Those cases concerned the process of setting electricity rates to be charged to consumers. As reported by counsel for the Board, the variance of the pole attachment charge was included in these processes as a matter of convenience. In those cases, the issue was settled. In the first (InnPower) there is a decision concerning the settlement of the form of the Order dealing with the overall setting of electricity rates. It refers to the pole attachment charge as having been settled:

The OEB made formatting changes and one content change to the Accounting Orders proposed by InnPower in the DRO. The Accounting Order for the new Vegetation Management deferral account was changed to be non-interest bearing, in accordance with the Settlement Proposal (Wireline Pole Attachment Rate) approved by the OEB.[^62]

[60] Toronto Hydro decision contains a schedule of “Specific Service Charges”. Under the subheading “Other”, as part of a grouping of charges is “Specific Charge for Access to the Power Poles (Wireless Attachments)- per pole/per year $42.00.”[^63] It is the Factum of the Ontario Energy Board (the Respondent) that advises this was the subject of a settlement.[^64]

[61] These hearings and processes are not sufficient to hold out the promise of “a full hearing”[^65] as submitted on behalf of the Appellants. The principle of legitimate expectation, applied to these past processes, cannot be taken as demonstrating such a requirement.

[62] The Appellants complain that their reliance on the principle of legitimate expectation arises not only from past processes but also from the promise associated with the undertaking of the policy review. They point out that the letter of November 5, 2015 refers only to review of the “methodology” associated with the calculation of the charge, not a revision of the charge itself.

[63] I begin by saying that legitimate expectation through an unrealized promise of process arises when something has been promised but not acted on. The case from which legitimate expectation has been said to originate is R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association.[^66] The council sought to increase the number of taxi licences extant in the city. Taxi cab owners were opposed. The town clerk wrote to the solicitor for the taxi owners’ association saying that no decision on the matter had been taken and that interested parties would be fully consulted before any decision was taken. This advice was confirmed. The proposal was subsequently considered by a sub-committee of council, moved on to the full council which proposed to proceed to consider the matter. It met and adopted the sub-committee’s recommendation to accept the increase. This was set aside. Fairness dictated that the promise to consult and allow representation from taxi cab owners having been made, the council was not able to ignore the promise and add licences. Although the case does not use the term, the council had created a legitimate expectation that representations would be allowed before a decision was taken.

[64] In Campbell v. Saskatchewan (Workers’ Compensation Board)[^67] a sailing instructor commenced an action with respect to injuries he had suffered at work. The defendants claimed the action was statute barred by the provisions of the prevailing workers compensation legislation. The instructor brought a motion before the Workers’ Compensation Board for a ruling. The Board agreed with the defendants. The action was statute barred. The instructor took the matter to the Court of Queen’s bench. The motion was brought on the grounds that the Workers’ Compensation Board erred in law but also that, in denying the appellant a viva voce hearing, the Board violated its own policy and undertakings to the appellant and breached the principles of procedural fairness. The application was dismissed and appealed. In the run up to the hearing the instructor had indicated an intention to call viva voce evidence, the Board had indicated it would, at the appropriate time contact his counsel regarding arrangements for a hearing. There was an exchange of correspondence between two of the defendants and the Board, the former requesting a hearing and the latter confirming there would be one. Counsel for the instructor while acknowledging the need “for proper examination of witnesses and evidence at the hearing” suggested that an “informal hearing” would suffice. Counsel went on to note “…we would not object to a proceeding in which the parties were permitted an opportunity to cross-examine one another”.[^68] Despite all this the Board decided the application without a hearing.

[65] In what were obiter dicta comments (the appeal was determined without reliance on the issue) the Court of Appeal found that, in denying the appellant an oral hearing, the Workers’ Compensation Board violated his right to a fair hearing on an issue of importance to him, the issue being whether the instructor could be deemed to be a “worker” within the meaning of the applicable legislation. In making this finding the Court made the following observation:

In the instant case, the argument for a legitimate expectation of an oral hearing is strong. The Board’s publicly published policy stated that a hearing would be accorded on a s. 168 application if a party requested it. While the term “hearing” does not, in law, necessarily connote an oral or viva voce hearing, the context of this regulation strongly suggests that that is what was meant. More than this, however, an agent of the Board twice informed the parties, in writing, that a hearing would be scheduled after they had made their submissions in writing. These representations without doubt referred to an oral hearing. The parties’ written submissions were therefore made in the expectation that this hearing would take place and, indeed, the respondents pressed the Board for a more extensive and formal oral hearing than the Board had itself proposed, and were awaiting a response from the Board on that issue. Although the parties were subsequently informed that the Board was reconsidering whether an oral hearing was necessary, they received no notice of a decision that an oral hearing would not be held before the ultimate ruling on the s. 168 application was released. The factor of legitimate expectation strongly supports the appellant’s position that fairness was denied in this case.[^69]

[66] In Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation)[^70] the province of Ontario had agreed to contribute to the funding of the construction of a roadway in the Region. Relying on this commitment the required approvals were obtained, work commenced and money spent in preparation for the construction. There was a provincial election. The newly elected government refused to fund the road. An application for judicial review was made. It relied on the legitimate expectation that the promised funding would be provided. The application was dismissed. The principle of legitimate expectation applies only to promises of procedure not matters of substance.[^71]

[67] In each of the three cases referred to, the claim for legitimate expectation arose from a positive promise that was subsequently denied. There was no promise of a hearing in the case being decided. Rather the claim is founded in the proposition that the subject of the review (the process) was limited to methodology and did not include a determination of the amount of the charge. So far as I am aware there is no case that sustains a claim of legitimate expectation based, not on a positive assertion of a promised process, but on a limitation of the subject matter to be considered. Counsel made no reference to such a case. In the context of a policy review, the proposition would be problematic. As the review proceeded, whatever facts or considerations appeared, there could be no change to the subject being considered for fear of a breach of legitimate expectation.

[68] Even so I do not accept that there was such a limitation. The letter of November 5, 2015 should be read as a whole. It introduces the review with the words that follow:

The purpose of this letter is to announce that the Ontario Energy Board (OEB) is initiating a comprehensive policy review of miscellaneous rates and charges applied by electricity distributors for specific activities or services they provide to their customers.

[69] There is more to a “comprehensive policy review” than methodology. The letter says the review will “consider the methodology” but it does not stop there. The review is to include “the appropriate treatment of any revenues that carriers may receive from third parties.” Surely, to consider that treatment it would be helpful, if not required, to know what those revenues may be or even will be. The initial statement of the policy to provide universal access to the poles was the decision of March 7, 2005. The amount of the charge was the product of policy:

The response of the electricity distributors is that these rates are unduly low and are driven by considerations of telecommunication policy. In particular, they were designed to foster competition in that sector. The witnesses, however, were unable to point to any particular articulation of that policy goal as the justification for the rate levels at least in the Canadian context.[^72]

[70] The Decision and Order of March 7, 2005 is, in part, an examination of the applicable policy considerations that could impact the value of the charge.[^73] That first statement of the policy included the value ($22.35 per pole per year (see: para. [43] above)). A “comprehensive policy review” would do no less.

[71] The first step in the review was the formation of the PAWG. What was the role for PAWG in the review? It was not to set the value of the charge. It was a consultation program intended to provide advice to the consultant and, through it, to the Ontario Energy Board.

[72] The letter of November 5, 2015 introducing the review noted:

The OEB will establish a Pole Attachments Working Group (PAWG) to provide advice on the technical aspects and related details to be addressed in respect of pole attachments. [^74]

[Emphasis added]

[73] The letter announcing the composition of the PAWG begins:

This letter establishes the composition of the Pole Attachments Working Group (PAWG) and provides more information regarding the Pole Attachment consultation process.

[74] The “Presentation to the Pole Attachment Working Group” made on May 16, 2016 explaining the review observed:

The expert consultant is expected to:

• With the input and advice of the PAWG, produce a report.[^75]

[75] Having addressed the PAWG and its purpose (to provide technical advice) the letter went on to discuss what would happen after that advice was received:

The subsequent review of pole attachments will consider the methodology used for determining charges, including the appropriate treatment of any revenues that carriers may receive from third parties.[^76]

[76] In other words that part of the “comprehensive review” which was to assess the value of the charge came after the set work of the PAWG had been completed. This does not mean that consultation would necessarily be complete:

The consultation will conclude with the OEB issuing its revised policy with respect to determining the pole attachment charges.[^77]

[77] What transpired is what was what was referred to at the outset (a comprehensive review), undertaken though steps that were outlined, by parties that had been identified:

• four PAWG meetings,[^78]

• further initial consultation through a request for comments from the members of the PAWG[^79]

• a “subsequent” review by the consultant,

• followed by a report by the consultant,

• followed by a draft report by the Ontario Energy Board,

• further consultation through comments from the members of the PAWG, and

• a Final Report from the Board.

[78] The proposal for the new charge first appeared in the Draft Report of the Board. If the parties were surprised by this, they should not have been. The catalyst for the review was the variances to the provincial wide charge set for each of Toronto Hydro, Hydro Ottawa, Hydro One and InnPower. The charge was recognized as being out of date and undervalued. The promise was for a comprehensive review. There was no limitation restricting the review to methodology without the application of that methodology. It was the responsibility of the Board to set the charge. With the foundation of the review reported on, it did so. The breadth of the review was within the parameters of what could reasonably have been and should have been foreseen. There is no foundation to the claim of legitimate expectation, that is the expectation of process, not realized.

Fair Process

[79] The question remains as to whether the process adopted to set the charge violated the right of the Carriers to a fair process. What is a fair process and how is the Court to determine whether an adopted process was fair?

[80] In Martineau v. Matsqui Institution the Court set the task:

A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum. That is what emerges from the decision of this Court in Nicholson. In these cases, an applicant may obtain certiorari to enforce a breach of the duty of procedural fairness.[^80]

[81] Where on the continuum referred to does the policy review of the Ontario Energy Board, as a regulatory authority fall? It is generally recognized that an examination of whether the process adopted in a particular circumstance met the standard of procedural fairness is encompassed in the application of the of the factors identified in Baker v. Canada[^81]:

1. the nature of the decision being made and the process followed to make it;

2. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

3. the importance of the decision to the individual or individuals affected;

4. the legitimate expectations of the person challenging the decision; and

5. the choices of procedure made by the agency itself.

[82] This has already been reviewed in the context of the appeal taken in respect of the decision to vary the pole attachment charge applicable to Ottawa Hydro Limited[^82] the substance and logic of which I repeat here. For that case the Court found that the first four of the factors pointed to a requirement that the Ontario Energy Board provide the highest degree of procedural fairness.[^83] That conclusion is apposite in the case being decided.

The Baker Factors

Nature of the process

[83] This was a broad-based policy review. It went back to fundamental issues. Should there even be a province wide charge?[^84] The review process and the determination it made as to the provincial wide rate was not, and was not intended to be, set in place and applied uniformly across the province. Its impact would be limited. Over 90% of the hydro poles in the province of Ontario were subject to the specific charges that were the result of the four variance hearings that had been held since the imposition of the initial charge in 2005.[^85] Those charges had already been adjusted and were not to be and were not affected by the decision that resulted from the review:

The charge will apply to all LDCs that do not have a specifically approved OEB charge in place.[^86]

[84] The charge to be determined was a default charge that could be accepted by an LDC but foresaw that LDCs could apply for and pursue a “custom charge” that reflected their particular cost structure:

As has been the case since 2005, LDCs may apply for a variance of the province-wide charge if it is insufficient to cover their costs.[^87]

At the time of rebasing, LDCs may choose to select the provincially approved charge or to use utility specific costs and pursue an LDC-specific pole attachment charge that better reflects their cost structures, using the OEB’s updated methodology.[^88]

[85] The policy problem was a desire to provide universal access to the poles:

Wireline poles are an essential part of both electrical distribution and telecommunications networks.

With the rapid uptake of bandwidth by subscribers necessary to support a myriad of everyday applications and increasing competition in the telecom sector, there has been an increasing need for third-party attachments to wireline poles. Municipal governments have always promoted the sharing of pole infrastructure for efficiency and aesthetic considerations. Given that the predominant location of poles is on public land, municipal intervention has been able to significantly increase the sharing of poles - owned by both power and communication operators - and correspondingly, reduce wasteful duplication in overall pole infrastructure.[^89]

[86] But the cost of carrying the telecommunications cable was to not become a cost to be passed on to the consumers of the electricity, the transmission and distribution of which was the primary purpose for the poles.

The process followed

[87] The review comprised three basic stages: the gathering of information (by the consultant with the input of the PAWG), the assessment of that information in the context of how to set the value of the charge (generally by the consultant presumably, but not necessarily, with the assistance of staff from the Ontario Energy Board) and the overall review of the work done and the setting of the charge by the Board (after further comment from the PAWG).

Statutory scheme

[88] The policy review was consistent with and fit within the statutory scheme. It was a proceeding as defined by the Rules of Practice and Procedure of the Ontario Energy Board. It resulted in an amendment to Decision and Order made by the Ontario Energy Board on March 7, 2005. The result was an Order (s. 19(2)) but no hearing was required because it was a determination required for matters provided for in the licences held by LDC’s (s. 70 (1.1))

Importance of the decision to the individuals affected

[89] The impact on the Carriers (the Appellants) was considered. The LDCs were to recover the cost of making the poles available but this had to be balanced with the cost to the Carriers and the impact on their business:

In this context, it is important to ensure the rates charged to third party users of the wireline poles are “just and reasonable” based on the following principles:

(a) communication attachers have access to the utility poles, and

(b) utilities are able to recover the cost of their poles, based on just and reasonable rates.[^90]

[90] The review looked at how the efficiencies associated with joint use of the poles are to be balanced.[^91]

Legitimate expectations

[91] The Carriers may not have expected that a policy review would fix a new default charge. That expectation was not legitimate as that term is understood at law. Costs to be recovered were the subject of consideration in the comments sought from, and provided by, the Carriers who were members of the PAWG[^92] and are reviewed in the Nordicity Report[^93]. Cost recovery was central to the review. Both the PAWG and the Nordicity Report moved beyond costs to calculations of the pole attachment charge. The email requesting comments from the members of the PAWG includes:

In addition, a file entitled “Pole Attachment Rate Scenarios” provides examples of how the potential default values included in the issues list might be used to project the Pole Attachment Rate. The row by row comparison of all the costs allows one to focus on the key issues that are driving the pole attachment rate. This table is linked back to the OEB Tool which was demonstrated at the last meeting. We are providing a copy of the Tool with this e-mail to allow members of the PAWG to conduct their own sensitivity analysis on the cost drivers.[^94]

[92] The comments delivered in response include 5 pages entitled: “Examples of Projected Pole Attachment Rates Using Default Values Proposed in the Key Issues List”.

[93] The Nordicity Report includes at Ch. 8 “POLE ATTACHMENT RATE MODEL” and at Ch. 10 PROPOSED RATE CALCULATION FRAMEWORK.

[94] The law is clear. Not all five of the factors are due the same weight and consideration. They are to be balanced. The fifth factor: “the choices of procedure made by the agency itself” has particular significance in the circumstances of this case. It is a policy review undertaken by the policy maker.

[95] In Forest Ethics Advocacy Association v. Canada (National Energy Board) the Federal Court of Appeal observed:

The Board has considerable experience and expertise in conducting its own hearings and determining who should not participate, who should participate, how and to what extent. It also has considerable experience and expertise in ensuring that its hearings deal with the issues mandated by the Act in a timely and efficient way.[^95]

[96] In determining the scope of procedural fairness for a particular procedural decision by a tribunal, there is a degree of deference. In Re: Sound v. Fitness Industry Council of Canada, described it this way (at para. 42):

In short, whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other. In recognition of the agency’s expertise, a degree of deference to an administrator’s procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar.[^96]

[97] This is a case where deference is owed to the Ontario Energy Board. The process is a balance of the demands of the review and the interests of the parties. The review was required. The default charge had been unchanged for 10 years. Input from the parties involved was required and obtained through the PAWG and subsequent comments. Expert assistance was needed and a consultant retained and utilized. Ultimately, it was the responsibility of the Ontario Energy Board to consider and develop the approach to pole attachment. A draft report was prepared. Comments sought and, only then, a final report released.

[98] A concern was expressed that the process changed. It moved without warning from a consideration limited to methodology to the setting of the charge. A comprehensive review includes the setting of the charge which was the inevitable end of the process. The Carriers submit they were unaware and, as a result were denied procedural fairness. The inputs of the charge were fully canvassed and opportunities to comment provided. This began within the consultation process demonstrated by the four meetings of the PAWG. The key issues that arose and on which comment was sought in the February 16, 2017 email included the “Examples of Projected Pole Attachment Rates Using Default Values Proposed in the Key Issues List.” After the release of the Draft Report of the Ontario Energy Board more comments were asked for and provided. The proposed charge was reduced. A transition to the higher charge imposed and the ability of LDCs to seek a specific charge confirmed.

[99] A concern for the fairness of the procedure set by the Board was expressed by the Carriers. It was submitted that they had no ability to question the charge imposed. They are not regulated by the Ontario Energy Board. However, the Ontario Energy Board was prepared and has responded when carriers have raised concerns and objections to individual charges that have been imposed. The Carriers took part in the hearing concerning the specific pole attachment charge applicable to Ottawa Hydro and were the Appellants when the matter proceeded to Court. The proceeding which determined the pole attachment charge applicable to Hydro One Networks Inc. was initiated by carriers.

[100] Deference applies to the decision of the Ontario Energy Board as to the process it adopted to conduct the policy review. The process, as adopted, accounts for and balances the factors enunciated in Baker v. Canada in a reasonable and appropriate way. The process being appealed, in its particular circumstances, was procedurally fair.

[101] For the reasons reviewed the appeal is dismissed.

[102] Neither party seeks costs; none are awarded.

Lederer, J.

I agree _______________________________

Backhouse J.

I agree _______________________________

D. Edwards J.

Released: November 2, 2020

[^1]: S.O. 1998, c. 154

[^2]: Ibid, Sched. B, s. 1(1) para. 2

[^4]: Decision of the OEB, RP-2003-0249 Procedural Order #2. The parties, apart from the CCTA, that made submissions were: the Canadian Electricity Association, Hydro One Networks Inc., Toronto Hydro-Electric System Limited, Brantford Power Inc., Hamilton Hydro Inc., and the Electricity Distributors Association.

[^5]: Decision and Order of the OEB dated March 7, 2005 at p. 11

[^6]: Report of the Ontario Energy Board (Wireless Pole Attachment Charges), EB-2015-0304, March 22, 2018 at p. 66

[^7]: Ibid at p. 8 (At fn. 50, associated with the quotation of the condition, the Report note: “The exemption for wireless attachments was added through EB-2016-0015, Decision and Order, January 28, 2016.”)

[^8]: Decision and Rate Order, EB-2014-0116

[^9]: Decision and Rate Order, EB-2015-0004

[^10]: Decision and Rate Order, EB-2015-0141

[^11]: Ontario Energy Board Decision EB-2016-0085

[^12]: The four individual reviews were conducted and considered at the same time as the general rate applications of the four companies. Where there were hearings required for the consideration of the pole attachment charge they were included as part of the overall proceeding.

[^13]: Nordicity Report dated December 14, 2017 at p. 2 (Executive Summary)

[^14]: Report of the Ontario Energy Board (Wireless Pole Attachment Charges), EB-2015-0304, March 22, 2018 at p. 17 and Letter from Ontario Energy Board to All Rate Regulated Electricity Distributors et al regarding Review of Miscellaneous Rates and Charges (EB-2015- 0304) dated November 5, 2015 at p. 1

[^15]: Letter from Ontario Energy Board to All Rate Regulated Electricity Distributors et al regarding Review of Miscellaneous Rates and Charges (EB-2015- 0304) dated November 5, 2015 at p. 1

[^16]: Ibid at p. 2

[^17]: Presentation to the Pole Attachment Working Group dated May 20, 2016 at p. 2 (Expert Consultant)

[^18]: Nordicity Report dated December 14, 2017 at p. 11 (Section 1.3: PAWG Meetings)

[^19]: Ibid at p. 2 (Executive Summary) and Presentation to the Pole Attachment Working Group dated May 20, 2016 at p. 2 (Expert Consultant)

[^20]: Email from Michael Lesychyn to PAWG members requesting comments dated February 16, 2017

[^21]: OEB Pole Attachment Working Group-Key Issues Comments of the Carriers-March 3, 2017 (revised March 6, 2017)

[^22]: Letter dated March 7, 2017 from Rogers (Michael Piaskoski) on its own behalf and that of Cogeco Connexion Inc., Tbaytel and BH Telecom Corp. to the Secretary of the OEB (Kirsten Walli)

[^23]: Ibid at p. 2 (Executive Summary)

[^24]: Draft Report of the Board - Framework for Determining Wireline Pole Attachment Charges, EB-2015-0304 dated December 18, 2017 at p. 47 (Updated Single Provincial Pole Attachment Rate)

[^25]: Ibid at p. 47 (Proposed OEB Pole Attachment Rate Framework)

[^26]: Submissions of Rogers Communications Canada Inc. on Draft Report of the Board, I say apparently dated February 9, 2017 because both parties refer to this date but it does not appear on the document itself. It was submitted on behalf of Bragg Communications Inc., Canadian Cable Systems Alliance, Cogeco Connexion Inc., Independent Telecommunications Providers Association, Zayo Canada Inc. (formerly Allstream Inc.), Niagara Regional Broadband Network, Packet-tel Corp. (o/a Packetworks), Québecor Média Inc., Rogers Communications Canada Inc. Shaw Communications Inc., Tbaytel, TELUS Communications Inc. and BH Telecom see also Appendices A – D.

[^27]: Ibid at p. 46 para. 165 (Conclusions and recommendations)

[^28]: Report of the Ontario Energy Board Wireline Pole Attachment Charges, March 22, 2018 EB-2015-0304 at p. 3 (Executive Summary).

[^29]: Ibid at p. 4 (Executive Summary)

[^30]: Ibid at p. 4 (Executive Summary)

[^31]: Ibid at p. 52 (Implementation)

[^32]: Letter from Counsel for the Ontario Energy Board (Phil Tunley) dated May 8, 2018,

[^33]: R.S.O. 1990, c. J.1;

[^34]: Supplementary Factum of the Appellants at para. 4

[^35]: Supplementary Factum of the Respondents at paras. 23-25

[^36]: 2020 ONSC 4392 (Div. Ct.) at para. 81. Baker v. Canada (Minister of Citizenship and Immigration) is found at 1999 699 (SCC), [1999] 2 S.C.R. 817.

[^37]: 2014 FCA 59 at para. 50

[^38]: Baker v. Canada (Minister of Citizenship and Immigration), supra (fn. 36) at para. 27 referring to IWA v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, per Gonthier J.

[^39]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1, 59 Admin LR (6th) 1 at para. 25

[^40]: Ibid at para. 42

[^41]: Decision of the OEB, RP-2003-0249 Procedural Order #2. “[T]hese parties” already referred to at fn. 3 are listed here: the CCTA, the Canadian Electricity Association, Hydro One Networks Inc., Toronto Hydro-Electric System Limited, Brantford Power Inc., Hamilton Hydro Inc., and the Electricity Distributors Association.

[^42]: I note that Carriers, many of the same as the Appellants in this case, in an appeal of the decision dealing with the specific pole attachment charge for Hydro One Networks Inc., in the factum filed on their behalf held to the view found in 2005:

In May 2015, the Carriers grouped together and sought leave to bring a motion to review and vary. Among other things, they argued that the OEB did not have jurisdiction to set the pole attachment charge under Section 78 of the OEB Act as part of Hydro One’s general rate application but could only do so under Section 74 as an amendment to Hydro One’s conditions of licence. That issue was raised by the Carriers in their factum on this appeal but was not pursued in their oral submissions.

(Rogers Communications Canada Inc. v. The Ontario Energy Board, 2017 ONSC 3959 at para. 21)

[^43]: The Electricity Act, 1998, S.O. 1998, S.O. 1998, c. 15 Sched. A s. 29(1) imposes the obligation to sell electricity to those who wish to purchase it:

A distributor shall sell electricity to every person connected to the distributor’s distribution system, except a person who advises the distributor in writing that the person does not wish to purchase electricity from the distributor.

[^44]: Report of the Ontario Energy Board Wireline Pole Attachment Charges, March 22, 2018 EB-2015-0304 at p. 66 (Implementation) (Executive Summary).

[^45]: Factum of the Respondent, The Ontario Energy Board at para. 64

[^46]: Decision of the Ontario Energy Board, March 7, 2005 at p. 11

[^47]: See para. [8] herein

[^48]: See para. [22] herein

[^49]: Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 citing D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §7:1710. See also Aiken v Ottawa Police Services Board, 2015 ONSC 3793 (Ont. Div. Ct.); Rogier v Halifax (Regional Municipality), 2009 NSSC 14 (NSSC); Dan v Canada (Minister of Citizenship & Immigration), 2009 FC 103, (Fed. Ct.).

[^50]: Factum of the Appellants at para. 45

[^51]: Ibid at para. 45

[^52]: Hydro Ottawa Limited, Application for electricity distribution rates for the period from January 1, 2016 to December 31, 2020 Decision and Rate Order on Pole Attachment Charge at pp.1 and 16

[^53]: Ibid at paras. 20, 21 and 22

[^54]: Ibid at para. 27

[^55]: The other carriers are listed as: Allstream Inc., Shaw Communications Canada Inc., Cogeco Cable Inc., on behalf of itself and its affiliate, Cogeco Cable Canada LP, Quebecor Media, Bragg Communications, Packet-tel Corp., Niagara Regional Broadband Network, Tbaytel, Independent Telecommunications Providers Association, and Canadian Cable Systems Alliance Inc. The decision being reviewed was: Decision re Hydro One Distribution Rates, March 12, 2015 (EB-2013-0416/EB-2014-0247).

[^56]: Both of these quotations are found at Decision and Rate Order EB-2015-1041 Rogers Communications Partnership et al, dated August 4, 2016 at p.1 (Introduction and Summary)

[^57]: Ibid at p. 1 (Introduction and Summary)

[^58]: Ibid at p. 5 (The Process)

[^59]: Ibid at p. 5 (The Process)

[^60]: Ibid at p. 5 (The Process)

[^61]: Rogers Communications Canada Inc. v. The Ontario Energy Board, supra (fn. 42)

[^62]: Final Rate Order, EB-2016-0085, InnPower Corporation, May 3, 2018 at p.3

[^63]: Decision and Rate Order EB-2014-0116 Toronto Hydro-Electric System Limited December 31, 2019, Appendix A at p. 16 of 17 (Specific Service Charges)

[^64]: Factum of the Respondent, The Ontario Energy Board at para. 15(a)

[^65]: Notice of Appeal at para. (b)

[^66]: [1972] 2 QB 299, [1972] 2 All ER 589, [1972] 2 WLR 1262,

[^67]: 2012 SKCA 56

[^68]: Ibid at para. 26 (the second noted quotation)

[^69]: Ibid at para. 76

[^70]: 1991 7099 (Div. Ct)

[^71]: I refer to this case and the distinction between procedure and substance it raises, in part, because that issue arose in the consideration of this Court in the appeal taken from the decision of the Ontario Energy Board to vary the pole attachment charge for Hydro Ottawa Limited. Was a consideration of “methodology” a matter of procedure or substance:

The OEB’s decision with respect to which methodology to use in setting rates is not easily characterized as being procedural as opposed to substantive. On the one hand, the OEB chose to apply the existing methodology rather than implementing changes to it – a decision that could be said to be substantive, within its area of expertise, and subject to a reasonableness standard. On the other hand, it cannot be denied that the methodology to be used to determine a rate is a relevant factor in setting that rate and the appellants were prevented from eliciting evidence as to the appropriate methodology – a decision that could be characterized as a denial of the right to be heard on a relevant issue; a fundamental tenet of procedural fairness.

In that case the Court determined:

However, in my opinion, this dichotomy is easily reconciled in this case by affording appropriate deference in determining the scope of the duty of procedural fairness owed by the OEB in this situation. The OEB did not refuse to reconsider the 2005 methodology. On the contrary, it recognized the need to review and modify it. All the OEB did was determine the appropriate procedure and timing for deciding the new methodology.

In coming to that conclusion, the court relied on the broader policy review in issue in the case being decided here:

The Board decided that this was a policy decision with broad ramifications and should be undertaken as a province-wide review with all stakeholders, including the appellants, having an opportunity to participate. In that way, the Board was providing the broadest participation rights possible, rather than making a decision in one geographic area which could have ramifications for other areas of the province and affect others who had no opportunity to be heard. Seen this way, the Board was enhancing, rather than circumventing, procedural fairness.

(Rogers Communications Partnership v Ontario Energy Board, 2016 ONSC 7810 at paras. 19 and 20)

[^72]: Decision of the Ontario Energy Board, March 7, 2005 at p. 5

[^73]: For example:

An additional argument to support the lower rate advanced by the cable companies is that they are only tenants while the electricity distributors own the poles. They argue that pole ownership confers a benefit (p. 5).

The CEA argues that electricity distributors should be allowed to raise the rates charged to the cable companies because cable companies are now generating “massive new sources of revenue” from the use of electricity distribution plant. In particular, they point out that revenues from high speed internet service have increased from $0 in 1995 to over $900 million annually by 2003 (p. 6).

Another rationale advanced by the cable companies is that it makes no sense to have different methodologies for setting rates on power poles compared to telephone poles. The argument is that since the CRTC methodology is used to price access to telephone poles, the same methodology should be followed in pricing access to power poles. The Board is not convinced. This Board may have a different policy rationale than the CRTC particularly in terms of the electricity ratepayer and the serving utility (p. 6).

The most persuasive argument for equal sharing of the common cost is the practice that appears to take place when parties are in position of equal bargaining power (p. 6).

[^74]: Letter from Ontario Energy Board to All Rate Regulated Electricity Distributors et al regarding Review of Miscellaneous Rates and Charges (EB-2015- 0304) dated November 5, 2015 at p. 2

[^75]: Ontario Energy Board, Review of Miscellaneous Rates and Charges- Wireline Pole Attachment Charges (Expert Consultant)

[^76]: Letter February 9, 2016 Re: Review of Wireline Attachment Charge to parties summarized as “All Interested Parties” at p. 1

[^77]: Letter February 9, 2016 Re: Review of Wireline Attachment Charge to parties summarized as “All Interested Parties” at p. 3

[^78]: May 20, 2016, July 27, 2016, November 24, 2016 and January 31, 2017

[^79]: February 16, 2017, Email from Michael Lesychyn to PAWG members requesting comments and subsequent comments entitled: “Working Group Member Comments on Key Issues Identified During Consultation”, OEB Pole Attachment Working Group-Key Issues Comments of the Carriers-March 3, 2017 and “Examples of Projected Pole Attachment Rates Using Default Values Proposed in the Key Issues List”

[^80]: 1979 184 (SCC), [1980] 1 S.C.R. 602, [1979] SCJ No 121, at pp.628- 629

[^81]: 1999 699 (SCC), [1999] 2 S.C.R. 817

[^82]: Rogers Communications Partnership v Ontario Energy Board, supra (fn. 72) at paras. 16-18

[^83]: Ibid at para. 16

[^84]: Report of the Ontario Energy Board Wireline Pole Attachment Charges, March 22, 2018 EB-2015-0304 at p. 25 (Overview of Key Policy Issues: bullet point 3) and p. 34 (LDC-Specific or Province-Wide Charge)

[^85]: Report of the Ontario Energy Board Wireline Pole Attachment Charges, March 22, 2018 EB-2015-0304 at p. 3 (Executive Summary):

In three recent applications for a distributor-specific custom charge, the Ontario Energy Board (OEB) approved charges of $42.00 for Toronto Hydro, $53.00 for Hydro Ottawa, and $41.28 for Hydro One. Collectively, these local distribution companies (LDCs) own roughly 90% of the electricity poles in Ontario.

[^86]: Ibid at p. 65 (A. Updated Single Provincial Pole Attachment Charge)

[^87]: Draft Report of the Board - Framework for Determining Wireline Pole Attachment Charges, EB-2015-0304 dated December 18, 2017 at p. 1 (Background)

[^88]: Report of the Ontario Energy Board Wireline Pole Attachment Charges, March 22, 2018 EB-2015-0304 at p. 66 (LDC-Specific Charge))

[^89]: Nordicity Report dated December 14, 2017 at p. 20 (Section 2.1; Why a Policy Framework is required)

[^90]: Ibid at p. 20 (Section 2.1; Why a Policy Framework is required)

[^91]: Ibid at p. 75 (Appendix B: Why the Equal Sharing Allocation Methodology is Appropriate for Ontario

[^92]: See fn. 80 herein

[^93]: Nordicity Report dated December 14, 2017 The Table of Contents refer, among others, the following topics reviewed in the Report: 4.1 Costing Approach (p.36); Ch. 5 DETERMINING AVERAGE ANNUAL COMMON (INDIRECT) COST PER POLE including 5.1 Average Embedded Cost per Pole (p. 46), 5.2 Net Embedded Cost per Pole (p. 48), 5.3 Annual Depreciation Cost per Pole (p. 50), 5.4 Capital Carrying Cost (Cost of Capital) (p. 51), 5.5 Average Annual Maintenance Cost per Pole (p. 52), 5.5.1 Annual Maintenance Cost per Pole- Account #5120 (p. 52), Annual Repair and Right of Ways Cost per Pole- Account #5135 (p. 54); Ch. 6 UPDATED ANNUAL COMMON (INDIRECT) COST PER POLE (p. 56); Ch. 7 DETERMINING AVERAGE ANNUAL COST PER POLE (p. 57), including Administration Costs (p. 57); Ch. 8 POLE ATTACHMENT RATE MODEL (p. 59) and Ch. 10 PROPOSED RATE CALCULATION FRAMEWORK (P. 62) including 10.1 Costing Approach.

[^94]: February 16, 2017, Email from Michael Lesychyn to PAWG as referred to at fn. 80 herein

[^95]: 2014 FCA 245 at para. 72 quoted in Rogers Communications Partnership v Ontario Energy Board, supra (fn. 72) at para. 17

[^96]: 2014 FCA 48 at para. 42 quoted in Rogers Communications Partnership v Ontario Energy Board, supra (fn. 72) at para. 18