2026 ONSC 1002

DIVISIONAL COURT FILE NO.: 361/24

DATE: 20260223

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RSJ Newton, Backhouse, and Matheson JJ.

Amended Reasons for Decision

BETWEEN:

ENVIRONMENTAL DEFENCE CANADA INC.

Appellant

– and –

ONTARIO ENERGY BOARD and ENBRIDGE GAS INC.

Respondents

Kent Elson, for the Appellant

W. David Rankin and R. Alex Farrant, for the Respondent – the Ontario Energy Board

Arlen Sternberg and Jonathan Silver for the Respondent – Enbridge Gas Inc.

HEARD at Toronto: February 12, 2026

Backhouse J.

Overview

[1] The Ontario Energy Board (“OEB”) granted Enbridge Gas Inc. (“Enbridge”) leave to construct four natural gas projects under s. 90 of the Ontario Energy Board Act, 1998, S.O. 1998, c.15, Sched B (the “OEB Act”) to serve four previously unserved communities in Ontario. In this appeal, the appellant, Environmental Defence Canada Inc. (“EDC”) (an intervenor in the proceedings below) contends that the OEB erred in law and breached procedural fairness in each of the leave to construct proceedings by denying EDC an opportunity to file proposed evidence and by refusing to convene a technical conference (a form of oral discovery). It submits that the opportunity to submit relevant evidence and have it considered is at the lowest end of the spectrum of procedural rights. It argues that it was entitled to this basic opportunity due to, among other things, the importance of the decisions to its interests, the quasi-judicial nature of OEB decision-making, and its expectations from past OEB practice. As a result, EDC requests that the decisions be set aside and remitted to the OEB for redetermination.

[2] Enbridge argues that the decisions were legally correct and that the proceedings were fair, and as such requests that they be upheld.

[3] For the reasons set out below, the appeal is dismissed.

Background

The Ontario Energy Board

[4] The OEB is an independent quasi-judicial regulatory body with exclusive jurisdiction to regulate the electricity and natural gas sectors in Ontario as set out in the OEB Act, and other statutes. Subject to certain exceptions, the prior approval of the OEB – referred to as leave to construct – is needed before new natural gas infrastructure can be built. In leave to construct proceedings, the OEB’s task as set out in s. 96 of the OEB Act is to determine whether it is of the opinion that the construction of proposed new natural gas infrastructure is in the public interest. The OEB may grant intervenor status to those who have an interest in the subject matter of the application and can provide a useful perspective to the OEB[^1].

Environmental Defence Canada Inc.

[5] The EDC is a broad-based environmental advocacy group that opposes the expansion and subsidization of fossil fuels.

National Gas Expansion Program (“NGEP”)

[6] The NGEP was established to support communities with high home energy bills and a lack of existing natural gas infrastructure. It provides financial support for the construction of projects to expand the supply of natural gas to under-served communities in rural and northern Ontario that are not currently connected to the provincial natural gas system. When establishing the program, the Government stated that “thousands of households, businesses and Indigenous communities in rural and northern Ontario pay some of the highest energy bills in the province. The Ministry of Energy indicated that it often hears from these communities requesting the same access to affordable home heating options that southern and urban Ontarians have.”[^2]

[7] Between May 2, 2022, and September 15, 2023, Enbridge filed applications requesting leave to construct natural gas pipelines in Bobcaygeon, Sandford, Neustadt, and Eganville, Ontario. These projects were selected by the Government of Ontario to be eligible to receive funding as part of the NGEP. Natural gas ratepayers contribute to the cost of the NGEP projects designed to bring projects that would otherwise be uneconomic to a profitability index that could warrant approval by the OEB. The enabling regulation puts a cap on the subsidy for each pipeline project and states that standard OEB approvals are still required.[^3] Before granting leave to construct a gas pipeline, the OEB is required to hold a hearing to determine whether granting leave is “in the public interest.”[^4]

[8] In 2021, the Government selected 28 of the 210 proposed community expansion projects as eligible to receive funding under the NGEP. The four Enbridge gas projects at issue on this appeal were among the selected projects.[^5] All four of these projects had strong support from the local communities and municipal governments, confirmed through government resolutions and/or letters confirming support.[^6]

[9] In leave to construct proceedings for NGEP projects, there are some notable differences regarding how the issues of project alternatives and project need are approached. Given that NGEP projects are identified by the Government through the passage and promulgation of legislation, including the Government’s selection of projects, the OEB considers the need for the project to be established: “Given the goal of the Ontario Government’s Access to Natural Gas legislation to extend gas service to designated communities,” the OEB need not consider possible alternative energy sources or technologies as part of the leave to construct test for these projects.[^7] In the context of a leave to construct proceeding for an NGEP project, therefore, the OEB places its focus on the remaining issues as listed above. Among other things, Enbridge had to show that sufficient homes and businesses would connect to the gas pipelines to pay for the pipeline costs over a 40-year period for the OEB to find that the projects were financially feasible.

Intervenors

[10] The OEB granted intervenor status to EDC and Pollution Probe in each of the four leave to construct proceedings at issue on this appeal. The OEB also granted intervenor status to the Federation of Rental-housing Providers of Ontario in the Bobcaygeon proceeding and to a resident of Sandford in the Sandford proceeding.

[11] EDC represents the public interest in environmental protection and the interests of its supporters, including gas ratepayers, who want clean and affordable energy systems. EDC is a regular intervenor at the OEB and has represented these interests in over 90 OEB matters.

EDC’s position on Enbridge’s applications

[12] EDC submits that the pipelines will financially harm existing customers because they are not financially feasible; they will harm newly connected customers that will pay needlessly high energy bills and were subject to deceptive marketing that the OEB declined to resolve; and they will harm the climate by facilitating increased fossil fuel consumption for decades to come when humans must be doing the opposite – eliminating fossil fuel consumption over the next 25 years to meet national and international climate targets to avoid catastrophic climate change. It submits that important issues and interests were at stake, warranting a much more robust process and coherent reasoning from the OEB.

[13] EDC sought to show in the applications that the projects are not in the public interest because they would harm existing gas ratepayers, new customers that connect to the new pipeline, and the climate.

Intervenor involvement in the process

[14] Intervenors have no automatic right to file any evidence. They must make a request and obtain permission from the OEB to do so.[^8]

[15] Under the OEB Rules, the OEB has discretion whether to convene a technical conference (a form of oral discovery) after completion of written discovery and as to the form of hearing.[^9] The OEB may direct a technical conferences for the purposes of reviewing and clarifying an application, an intervention, a reply, the evidence of a party, or a matter connected with interrogatories.[^10]

Written Discovery

[16] In each of the applications at issue on this appeal, EDC participated extensively in the written discovery process, filing hundreds of interrogatories, resulting in hundreds of pages of responses from Enbridge Gas in respect of these projects. Through its interrogatories, EDC obtained additional evidence on (1) non-natural gas alternatives including electric heat pumps; (2) the cost-effectiveness of heat pumps compared to natural gas, including a report prepared by independent consultant Guidehouse Inc; and (3) the customer surveys conducted by Forum Research.

EDC’s request to convene a technical conference and file evidence

[17] EDC filed a request that the OEB:

1. convene a technical conference;

2. approve the filing of heat pump evidence demonstrating the cost-effectiveness of heat pumps relative to natural gas; and

3. permitting EDC to “retain a public opinion research firm to conduct community surveys to gauge the likely number of connections” to the natural gas system.

[18] EDC’s request argued that the proposed survey evidence would address alleged deficiencies in Enbridge’s survey evidence gauging the likelihood of customers switching to natural gas, such as not telling customers an estimate of the savings from installing a heat pump versus a gas furnace. It sought to introduce the proposed evidence in support of its positions that the actual revenue will likely be less than the forecast revenue because (i) fewer customers will connect than forecast and (ii) customers that do connect will disconnect before the 40-year period and stop paying gas distribution charges. EDC submitted that this will likely occur because electric heat pumps are already much cheaper for heating homes than gas in these communities and the combustion of gas in homes must be phased out over the next 25 years for climate reasons. Existing customers would likely be required to cover these revenue shortfalls, resulting in an additional subsidy beyond the amount provided for in the regulation.

OEB’s Evidence Decisions

[19] The OEB considered and rejected these requests in evidence decisions dated February 20 and 29, 2024.[^11]

[20] The requests to file evidence on the economic superiority of heat pumps were rejected largely for the same reasons as were given by the OEB in response to a similar request filed by EDC in 2023. In essence, the OEB held that the evidence was irrelevant, because the decision the OEB needs to make is whether the project is “in the public interest”, not to make a choice between heat pumps or natural gas expansion. EDC was able to elicit and test Enbridge’s evidence through interrogatories, and this allowed it to attempt to make its case.

[21] The OEB rejected the requests to file survey evidence for the following reasons:

1. The OEB was alive to the concerns raised by EDC, regarding the risk to the financial viability of the project from consumers choosing heat pumps over natural gas, without needing to hear evidence on the question. No further surveys were needed to establish that point.[^12]

2. The admission of an additional survey would have limited comparison value because consumer decisions are based on both financial and non-financial considerations.[^13]

3. The determinative value of an additional survey may depend on a lengthy and difficult adjudication of the validity, timeliness, and cogency of survey design.[^14]

4. Regarding EDC’s contention that Enbridge may collect insufficient revenues, Enbridge is responsible for potential revenue shortfalls during a “10-year rate stability period” during which Enbridge assumes such responsibility”.[^15] Following the expiration of the 10-year rate stability period, “the clear and reasonable expectation is that customers will not be called upon to provide a further subsidy to compensate for post-[rate stability period] revenue shortfalls.”[^16]

5. Delay and increased costs associated with EDC’s request were a concern: if the final decisions granted leave, “the end result of an accommodation of the late request would likely have resulted in a later decision, later service to customers, and potential additional costs accruing from construction delays.[^17]

6. The Evidence Decisions considered that EDC had other opportunities available to it to challenge Enbridge’s survey evidence, including through the filing of written submissions and discovery through written interrogatories.[^18]

[22] Regarding EDC’s request for a technical conference, a “technical conference and/or oral hearing would have limited probative value given the opportunity for discovery through the interrogatory process.”[^19] Additionally holding a technical conference would result in unnecessary delay and would not be in the best interests of customers.[^20]

The OEB’s Final Decisions Granting Leave to Construct

[23] In May and June 2024, following written submissions, the OEB issued its final decisions approving the four pipeline projects.[^21] The decisions relating to each of the four communities are substantially similar in their findings and the issues raised by EDC apply equally across each of the decisions.

[24] The Final Decisions addressed the revenue shortfall risk if insufficient numbers of customers switch to natural gas. The OEB found that even if the actual customer connections do not meet Enbridge’s forecast, then the ten-year rate stability period “places the responsibility on Enbridge Gas for any shortfall in revenues needed to meet its revenue requirement.”[^22] Accordingly, the OEB found “protection is available to existing natural gas customers in the event that the connection forecast is not met.”[^23] The OEB also noted the “clear and reasonable expectation that such customers will not be called upon to provide a further subsidy to compensate for post-[rate stability period] revenue shortfalls.”[^24]

[25] The Final Decisions also acknowledged the inherent limitations of survey evidence in this context. The OEB held that “any survey is unlikely to capture all aspects of the likely take-up and continuance of natural gas service with complete accuracy in a changing environment of new energy efficient modes and programs, government policies and prices”.[^25]

The OEB’s Review Decision

[26] EDC filed a Motion to Review and Vary the Final Decisions with the OEB (the Review Motion). The Review Motion raised substantially similar grounds that EDC now raises on appeal before this court, including arguments of procedural unfairness and legal errors.

[27] EDC argued that it was procedurally unfair for the OEB to reject its request to file evidence. It also argued that the OEB applied the wrong legal test to the admissibility of evidence and emphasized irrelevant factors including the length and difficulty of the adjudication, misdescribed the evidence, and put undue reliance on distinguishable cases and past practice. As a result, it failed to appreciate the risk of a revenue shortfall. In decisions dated April 1, 2025 (the “Review Decisions”)[^26] the OEB rejected these arguments, finding that the process was procedurally fair and the request for review was dismissed.

Court’s Jurisdiction and Standard of Review

[28] The Divisional Court has jurisdiction to hear an appeal on questions of law or jurisdiction from decisions of the OEB pursuant to s. 33(1) and (2) of the OEB Act.

[29] The standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, at para. 37. Procedural fairness is a question of law that is reviewed on a correctness standard in the context of statutory appeals: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 27 and 30.

Analysis

[30] The two “main legal errors” EDC alleges are linked and are ultimately questions of procedural fairness. The EDC’s first issue alleges that the OEB adopted the incorrect legal test regarding the admission of evidence, and its second issue alleges that the OEB breached the duty of procedural fairness by denying an opportunity to submit evidence or obtain additional oral discovery. These are ultimately the same issue. Following the Supreme Court’s decision in Université du Québec à Trois-Rivières v Larocque, the question to evaluate whether a tribunal erred in refusing to receive evidence is whether the applicant was denied procedural fairness[^27].

Issue 1: Did the OEB apply the incorrect legal test when considering whether to permit the proposed intervenor evidence?

[31] EDC submits that the admissibility of evidence in any form is based on relevance.[^28]

No error in the OEB’s articulation of the legal test

[32] Section 15(1) of the Statutory Powers and Procedures Act (SPPA)[^29] governs the admission of evidence by administrative tribunals (such as the OEB) exercising statutory powers of decision. Section 15(1) which states that a tribunal may admit as evidence at a hearing anything relevant to the proceeding, is permissive as opposed to restrictive or mandatory. There is no requirement under s. 15(1) of the SPPA that a tribunal must admit all evidence that may be relevant. Nor is that requirement found in the OEB Rules.[^30]

[33] In Larocque, supra, the Supreme Court of Canada rejected the proposition that administrative tribunals must admit all “relevant” evidence in the labour arbitration context. It held that it is only a breach of natural justice where it has such an impact on the fairness of the proceeding leading unavoidably to the conclusion that there has been a breach of natural justice.[^31] EDC submits that there are significant differences in the labour context where there are privative clauses and no rights of appeal. Nevertheless, the court’s reasoning has not been restricted to the labour arbitration context.

[34] In Council of Canadians with Disabilities v Via Rail Inc., 2007 SCC 15, the Supreme Court held:

231 Considerable deference is owed to procedural rulings made by a tribunal with the authority to control its own process. The determination of the scope and content of a duty to act fairly is circumstance-specific, and may well depend on factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the Agency’s constituencies. Any assessment of what procedures the duty of fairness requires in a given proceeding should “take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. [authorities omitted]

[35] This court has held that “considerable deference is owed to procedural rulings made by a tribunal with the authority to control its own process, including the OEB.”[^32] Evidentiary decisions involve discretion. Tribunals cannot exercise that discretion “reckless[ly],”[^33] but the OEB’s Evidence Decisions cannot be fairly characterized as “reckless”.

[36] Leave to construct proceedings may involve many intervenors. The OEB must have the ability to make evidentiary decisions that balance fairness and efficiency. The court should only interfere where the refusal to receive evidence “has a significant impact on the fairness of the proceeding amounting to a clear denial of natural justice”.[^34]

[37] EDC submits that instead of deciding whether the proposed intervenor evidence was relevant when considering its admissibility, the Tribunal applied an incorrect legal test in concluding as follows:

The OEB is of the view that the proposed survey evidence is not likely to provide information that could support a definitive conclusion that the project does not meet the requisite goals established in legislation and/or is uneconomic and contrary to the public interest” [emphasis added].[^35]

[38] The OEB’s reasons must be read in their full context. Immediately prior to the statement EDC highlights, the OEB makes clear in the Evidence Decisions that its decision “is primarily based on the reasons set forth above”.[^36] Those reasons include a detailed discussion of why the OEB denied EDC’s request to file the proposed evidence, including considering various other factors such as efficiency and statutory purpose, as summarized above.

[39] The OEB properly considered whether the probative value of the proposed survey evidence outweighed the need to ensure the expeditious resolution of the proceedings.

[40] In its Review Decision, the OEB noted that it agrees with the potential advantages of heat pumps and that this was discussed in the Final Decisions. The OEB noted that it addressed the potential take-up of electric heat pumps in the communities to be served by Enbridge as a potential risk to project viability.[^37]

[41] EDC argues that the high relevance of its proposed survey evidence is particularly obvious because Enbridge submitted survey evidence which the OEB relied on as a “key factor” in the assessment of the economic viability of the project. EDC submits that its proposed survey would have also been a key factor but for the fact that its request for what it characterizes as important, crucial, critical evidence was denied.

[42] This would appear to be a compelling argument, but it fails to take into account that these applications were not an adversarial contest between two sides with both sides’ rights being determined by the OEB. While the OEB accepted that EDC has a substantial interest in the subject matter of the proceeding and a useful perspective, it does not have a direct interest in the outcome. Its legal rights or interests are not at stake or being determined on these applications. It is Enbridge’s application and it is the only party with a burden to meet. EDC’s argument that the statutory scheme necessarily requires the OEB to accept and consider this specific evidence from both sides misconstrues these proceedings.

Issue 2: Was the EDC denied procedural fairness?

[43] The first question that must be considered in answering Issue 2 is whether a duty of fairness was owed to EDC. A public authority owes a duty of fairness when its decision affects “the rights, privileges or interests of an individual.”[^38]

[44] EDC submits that having been granted intervenor status, it comes within the definition of “party” under the OEB Rules and is thereby granted full party status.

[45] It argues that having been granted intervenor status, which requires a substantial interest in the proceeding, it meets the test in Baker of a decision affecting their interests and is owed a duty of fairness.

[46] OEB Rules, r. 22.01provides:

22.02 The person applying for intervenor status must satisfy the OEB that he or she has a substantial interest and intends to participate responsibly in the proceeding. A person has a substantial interest if they have a material interest that is within the scope of the proceeding; for example, a person that: (i) primarily represents the direct interests of consumers (e.g., ratepayers) in relation to services that are regulated by the OEB; (ii) primarily represents an interest or policy perspective relevant to the OEB’s mandate and to the proceeding; or (iii) has an interest in land that is affected by the proceeding. Examples of participation include participating in discovery, making submissions, and filing evidence.

[47] EDC submits that it is not the case that environmental interests are less important than economic or land-based interests and/or are less worthy of procedural protections. It points out that the Supreme Court of Canada has held that environmental protection is “of superordinate importance”,[^39] a “fundamental value in Canadian society”,[^40] and “one of the major challenges of our time.”[^41]

[48] Enbridge submits that EDC’s interest in the projects is no different than any other environmental advocacy group or person with an environmental interest. It relies on two decisions where this court found that no duty of fairness was owed to an organization in an environmental approval context[^42] or to a local residents’ association in an application by a developer for site plan approval.[^43]

[49] The OEB does not take the position that no duty of fairness is owed to EDC. In a recent OEB report, it highlighted the importance of intervenors to the decision-making process, stating:

Regulators need access to external expertise and a spectrum of perspectives. Intervenors have value, because decision-making will be better informed.[^44]

[50] However, the OEB submits that requiring the OEB to admit all potentially relevant evidence as of right would unduly increase the complexity of its proceedings without regard for regulatory efficiency or the level of probative value the evidence brings—contrary to the interests of ratepayers who ultimately pay for this process.

[51] I conclude that the appellant has not shown that the refusal to receive the proposed evidence has a significant impact on the fairness of proceeding amounting to a clear denial of natural justice. While intervenor participation in the OEB decision-making process is important, I am not persuaded that it follows that it is entitled to file all potentially relevant evidence as of right.

[52] I am not persuaded that EDC has met the requirement of establishing that the refusal to receive the proposed evidence had a significant impact on the fairness of the proceeding, amounting to a denial of natural justice.

[53] EDC further argued that it sought to file the proposed evidence to support the contention that Enbridge’s revenue forecasts were unrealistic which will result in an additional subsidy for the construction of new fossil fuel infrastructure from existing ratepayers.

[54] The OEB explained in the Final Decisions why it considered the survey evidence to have minimum probative value, it was speculative, and the issue it raised of potential revenue shortfall did not raise a real concern of harm to consumers: “OEB staff has noted the risk to the economic viability of the Project if the projected customer attachments do not occur”; that “any survey evidence is unlikely to capture all aspects of the likely take-up and continuance of natural gas service with complete accuracy in a changing environment of new energy efficient modes and programs, government policies and prices”; one “pillar” of ensuring Enbridge’s customers are protected “is the existence of the ten-year [rate stability period] in which Enbridge Gas is responsible for any shortfall in revenues to meet its revenue requirement”; and “that it is a clear and reasonable expectation that…customers will not be called upon to provide a further subsidy to compensate for post-RSP revenue shortfalls.”[^45]

[55] The fact that EDC was allowed to participate robustly in the hearing by making submissions and challenging evidence by filing hundreds of interrogatories are significant factors militating against finding that OEB’s denial of EDC’s request to file evidence violated procedural fairness.

[56] A leading textbook on procedure before administrative tribunals states:

The extent of an intervenor’s participation is fixed by the agency (subject to statutory direction, of course). The degree of participation will be determined by the extent the agency feels the intervenor’s participation will assist it in its mandate.[^46]

No denial of procedural fairness

[57] The duty of procedural fairness is “eminently variable”, inherently flexible and context-specific.[^47] The five non-exhaustive Baker factors inform the content of the duty of procedural fairness in a particular case.[^48] They are addressed below and support a duty of fairness at the lower end of the spectrum for EDC as an intervenor in the leave to construct proceedings for the NGEP projects on appeal.

Baker Factor 1: The nature of the decision being made and the process followed in making it:

[58] While the OEB is a quasi-judicial body and its proceedings may resemble a court hearing, they are polycentric and discretionary. The OEB’s focus on the public interest is consistent with hearing from a diverse range of voices, which often means controlling the process to ensure that it does not become unduly complicated, lengthy, or costly.

Baker Factor 2: The nature of the statutory scheme:

[59] The OEB Act requires a hearing, but not an oral hearing, nor does it require any specific type of evidence to be admitted. There is also an internal review mechanism. As noted above, the hearings were not an adversarial contest between two sides with both sides’ rights being determined by the OEB. The fact that the projects were selected for inclusion in the NGEP is a key factor in the OEB’s analysis.

Baker Factor 3: Importance to the Individuals Affected:

[60] Decisions of the OEB do not force anyone to switch to natural gas. The risk of revenue shortfall falls on Enbridge for at least 10 years. This is not the type of decision that has serious impacts on the life or livelihood of an individual.

Baker Factor 4: Legitimate Expectations:

[61] EDC had no legitimate expectation that it would be allowed to submit evidence as an intervenor. This is a discretionary decision and EDC has been allowed to submit evidence in some cases and denied in others.

Baker Factor 5: Tribunal’s Procedural Choices:

[62] The OEB’s procedural choices, as set out in its rules, are a significant factor and have not been shown to be unfair. The opportunities given to intervenors vary depending on the case.

[63] The Baker factors do not put EDC’s procedural rights on the high end of the spectrum. I do not accept EDC’s submission that even the most minimal procedural rights would include the opportunity to introduce relevant evidence. The case EDC relied upon to support this proposition involved debt enforcement by the government against sponsors of immigrants who were found to have the right to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection.[^49] These individuals had a direct interest at stake. This is a very different context than these leave to construct proceedings before the OEB.

[64] EDC argues that procedural fairness requires that it be afforded the same opportunities as Enbridge. In support of this, it relies on Bailey v. Saskatchewan Registered Nurses’ Association, 1996 5059, (Sask. C.A.) which states that “fundamental fairness and the audi alteram partem rule require that both sides be given an opportunity to adduce evidence, provided such evidence is in conformity with the Rules of Evidence and is relevant.”(p.2) However, Bailey does not suggest that procedural fairness always requires a right to file evidence in an administrative tribunal proceeding regardless of the context. Bailey involved a statutory appeal from a professional disciplinary decision finding three nurses guilty of professional incompetence. The trial judge hearing the appeal refused to permit reply evidence responding to bias allegations. The nature of the process in Bailey where the evidence was excluded, a court case attracting procedural protections at the higher end of the spectrum, is not comparable to leave to construct proceedings before the OEB.

Technical conference

[65] As noted above, under the OEB Rules, the OEB has discretion whether to convene a technical conference after completion of written discovery and is entitled to deference.

[66] OEB’s reasons for declining a technical conference and/or declining the request for an oral hearing (limited probative value given the opportunity for discovery through the interrogatory process, unnecessary delay and not in the best interests of customers)[^50] were a reasonable exercise of the OEB’s discretion and not a breach of procedural fairness.

Other alleged errors raised by EDC

1. Excluding evidence because it may require lengthy and difficult adjudication

[67] It was not an incorrect legal test or an irrelevant factor for the OEB to identify that the proposed survey evidence would extend the regulatory process. The OEB has the discretion to balance fairness and efficiency. It is proper for it to consider regulatory efficiency including by reason of the fact that ratepayers ultimately fund the costs associated with the OEB’s processes.

2. The fact that proposed evidence seeks to challenge the NGEP was not a relevant factor to consider

[68] The OEB considered the legislative context in which the NGEP was established and these projects selected in determining whether to admit the proposed survey. This was not a denial of the request to file evidence based on an “assumption” about EDC’s motives or because the evidence challenges the NGEP.

3. Error to rely on the 2023 decision refusing EDC’s request to file evidence

[69] There was no error in the OEB relying on the 2023 decision refusing the EDC’s request to file evidence, notwithstanding that it did not consider proposed survey evidence and concerned much smaller projects. While previous decisions are not binding, it is not an error to consider past decisions and administrative decision makers must be concerned with the general consistency of administrative decisions.[^51] Moreover, this was not the only analysis undertaken by the OEB in deciding not to allow the proposed evidence.

4. Evidence Decisions based in part on alleged unsubstantiated and premature assumptions regarding merits of the case

[70] The OEB stated: “The OEB must assume that any potential shortfalls in the take-up and continuance of natural gas service have been carefully considered by Enbridge Gas in accordance with its responsibilities as a public utility invested with a franchise.”[^52]

[71] I do not agree that this amounts to an error of law going to the heart of the merits of the case. This statement can be understood as the OEB observing that Enbridge has a business interest and a regulator’s obligation to be careful about the projections. The OEB was clearly alert to the projections not being accurate because it discusses the risk.

[72] Finally, the OEB did not err in the Final Decisions by failing to consider “important factors” by which EDC means its critiques of Enbridge’s evidence. This is another way of saying that EDC disagrees with the OEB’s decisions on the merits.

Conclusion

[73] In conclusion, EDC has not established that there has been a denial of procedural fairness. The appeal is dismissed with costs payable by the EDC, to Enbridge, in the amount of $2,500, all inclusive.

Released: February 23, 2026

CORRECTION NOTICE

Corrected decision: the text of the original decision was corrected on February 24, 2026 to add the words “I am not” to para.52 and to delete the words “I am not” from para.64.

2026 ONSC 1002

DIVISIONAL COURT FILE NO.: 361/24

DATE: 20260223

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RSJ Newton, Backhouse, and Matheson JJ.

BETWEEN:

ENVIRONMENTAL DEFENCE CANADA INC.

Appellant

– and –

ONTARIO ENERGY BOARD and ENBRIDGE GAS INC.

Respondents

REASONS FOR DECISION

Backhouse J.

Released: February 23, 2026

[^1]: Ontario Energy Board, Rules of Practice and Procedure (March 6, 2024) (“OEB Rules”).

[^2]: Access to Natural Gas Act, 2018, S.O. 2018, c. 15; Expansion of Natural Gas Distribution Systems O Reg 45/91; Ontario Ministry of Energy, Future of Natural Gas Expansion and Home Heating Affordability - Discussion Paper for Consultation (Toronto: Environmental Registry of Ontario, 2023), pp. 1-2.

[^3]: O. Reg,24/19.

[^4]: OEB Act, ss.21(2), 90, and 96(1).

[^5]: Expansion of Natural Gas Distribution Systems, O Reg 45/91, Schedule 2; EB-2019-0255, Report to the Minister of Energy, Northern Development and Mines and to the Associate Minister of Energy (October 30, 2020).

[^6]: EB-2022-0111(Bobcaygeon), Project Need (Ex.B-1-1), pp.5-7.

[^7]: EB-2020-0091, Decision and Order (July 22, 2021), p.48. See also Bobcaygeon Final Decision p.16.

[^8]: This practice is set out currently in OEB Rules, s.13.01.

[^9]: OEB Rules at Rule 25.01.

[^10]: OEB Rules, at Rule 25.01.

[^11]: EB-2022-0111 (Bobcaygeon), Evidence Decision, February 20, 2024 EB-2023-0200 (Sandford), Evidence Decision, February 29, 2024; EB-2023-0201 (Eganville), Evidence Decision, February 29, 2024; EB-2023-0261 (Neustadt), Evidence Decision, February 29, 2024 (collectively the “Evidence Decisions”).

[^12]: Bobcaygeon Evidence Decision, p.14.

[^13]: Bobcaygeon Evidence Decision, p.17.

[^14]: Bobcaygeon Evidence Decision, p.17.

[^15]: Bobcaygeon Evidence Decision, p.12-13.

[^16]: Bobcaygeon Evidence Decision, p.22.

[^17]: Bobcaygeon Evidence Decision, p.15-19.

[^18]: Bobcaygeon Evidence Decision, p.13.

[^19]: Bobcaygeon Evidence Decision, p.23.

[^20]: Bobcaygeon Evidence Decision, p.23.

[^21]: EB-2022-0111 (Bobcaygeon), Final Decision, May 14, 2024 A174; EB-2023-0200 (Sandford), Final Decision, July 4, 2024 [A215]; EB-2023-0201 (Eganville), Final Decision, May 30, 2024 [A261]; EB-2023-0261 (Neustadt), Final Decision, May 23, 2024 [A333] (collectively the “Final Decisions”).

[^22]: Bobcaygeon Final Decision, p.14.

[^23]: Bobcaygeon Final Decision, p.14.

[^24]: Bobcaygeon Final Decision, p.26.

[^25]: Bobcaygeon Final Decision, p.25.

[^26]: EB-2024-00186 & EB-2024-0197 Decision on Motion to Review or Vary OEB Decisions.

[^27]: Université du Québec à Trois-Rivières v Larocque(“Laroque”), 1993 162 (SCC), [1993] 1 S.CR.471, pp.490-491; ENMAX Energy Corporation v TransAlta Generation Partnership, 2022 ABCA 206, para.67.

[^28]: Lockyear v Wawanesa Mutual Insurance Company (“Lockyear”), 2022 ONSC 94 at para. 28.

[^29]: Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22 [SPPA], s. 15(1).

[^30]: Since the decisions under appeal in this case, the OEB Rules have been amended (as of March 6, 2024) to explicitly provide that parties (including intervenors) require leave of the OEB to file written evidence (with certain defined exceptions). See Rules 13.02 and 13.03 (which sets out factors that the OEB will consider when determining whether to grant leave, including relevance, materiality, costs, and “any other relevant considerations affecting the fairness, efficiency or timeliness of the proceeding or the fulfillment of the OEB’s statutory mandate.”).

[^31]: Laroque, p.490.

[^32]: Rogers Communications Canada Inc. v. The Ontario Energy Board, 2017 ONSC 3959, para. 63 (Div. Ct.).

[^33]: Laroque, p.490.

[^34]: Kraft Canada Inc. v Menkes Lakeshore Ltd., 2007 65611, para.31 (Ont. Div Ct., denying leave to appeal).

[^35]: Bobcaygeon Evidence Decision, p.19.

[^36]: Bobcaygeon Evidence Decision, p.19.

[^37]: EB-2023-0313, Decision on Motion to Review and Vary OEB Decisions in EB-2022-0156/EB-2022-0248/EB-2022-0249.

[^38]: Baker v Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR. 817 at para 20.

[^39]: R. v. Hydro-Québec, 1997 318 (SCC), [1997] 3 SCR 213, at para. 85.

[^40]: Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 SCR 1031, at para. 55; 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, at para. 1.

[^41]: Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3, at 1.

[^42]: Eastern Georgian Bay Protective Society v Minister of the Environment, Conservation and Parks, 2021 ONSC 4038, para.27.(Div.Ct.)

[^43]: Blair Engaged-Residents’ Association Inc. v Corporation of the City of Cambridge, 2023 ONSC 1964, para.74-75 (Div Ct.).

[^44]: OEB, Top Quartile Regulator Report, March 2021,p.47.

[^45]: Bobcageon Final Decision, p.25-26.

[^46]: Lorne Sossin, Robert W. Macauley & James Sprague, Practice and Procedure Before Administrative Tribunals, (Thomson Reuters Canada: 2024) §16:40.

[^47]: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, para. 77.

[^48]: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, para. 77, citing Baker v Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, paras. 23-27.

[^49]: Canada v. Mavi, 2011 SCC 30 at para.5.

[^50]: Bobcaygeon Evidence Decision, p.23.

[^51]: Vavilov, para.129.

[^52]: Bobcaygeon Evidence Decision, p.18.