COURT FILE NO.: CV-20-82666
HEARD: 2021/04/12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: VISTA WATERLOO HOTEL INC. – Applicant (Respondent on motion) v. 1426938 ONTARIO INC. (KITCHENER WILMOT HYDRO) – Respondent (Moving Party on motion) & ONTARIO ENERGY BOARD – Respondent
BEFORE: Madam Justice Julianne Parfett
COUNSEL: Margot Pomerleau, for the for Applicant (Respondent on motion) Ewa Krajewska, for the Respondent (Moving party on motion) 1426938 Ontario Inc. (Kitchener Wilmot Hydro) Phil Tunley, for the Counsel for Respondent Ontario Energy Board
HEARD: March 16, 2021 (by videoconference)
ENDORSEMENT
[1] The Respondent, Kitchener Wilmot Hydro (KWH) requests a stay of proceedings of this litigation on the basis that the Superior Court of Justice does not have jurisdiction to hear the matter. The Respondent, Ontario Energy Board (OEB) agrees with KWH’s position. Both Respondents argue that the application is within the exclusive jurisdiction of the Ontario Energy Board.
Background
[2] The Applicant, Vista Waterloo Hotel, owns a hotel in the Kitchener/Waterloo area. During the period 2017-2019, rebates were offered to certain hydro customers pursuant to the Ontario Rebate for Electricity Consumers Act 2016 (ORECA)[^1] and the Ontario Fair Hydro Plan Act (OFHPA).[^2] The rebates were applied by local electricity distribution companies in Ontario. KWH is one such company.
[3] The local electricity distribution companies are licensed by the OEB and are subject to regulation by the OEB.
[4] The Applicant applied for the rebates but was refused. KWH determined that the Applicant was not eligible for a rebate under either scheme. It found that the consumers living in the hotel did not meet the definition of a consumer living in a residential complex unless they could show they were living in the hotel on a long-term basis and had no other residential address. Consequently, the Applicant applied to this court for a declaration that the Applicant’s account be included in the definition of ‘eligible account’ in the ORECA and ‘specified consumer’ in OFHPA.
[5] It is conceded by the Applicant that the application involves the interpretation of legislative provisions that at the relevant time were “enforceable provisions” under the Ontario Energy Board Act (OEB Act).[^3] However, they argue that the application also involves the interpretation of the Residential Tenancies Act, 2006 (RTA)[^4] and therefore, the application is outside the exclusive jurisdiction of the OEB.
[6] The ORECA rebate was available to consumers with an ‘eligible account’. The definition of eligible account included residential households, small businesses and farms, but also included any account related to a ‘residential complex’ as defined in the RTA. Hotels accommodations are excluded from the application of the RTA, but hotels might nevertheless be eligible under ORECA if they otherwise fell within the definition of ‘residential complex’.
[7] The OFHPA came into effect on June 1, 2017 and provided that ‘specified consumers’ could have their electricity bills reduced on average by 25%. The OFHPA defined ‘specified consumers’ in a similar manner to ORECA’s definition of ‘eligible account’.
[8] The OEB provided guidance to local electricity distribution companies on many aspects of the application of ORECA and OFHPA, including the eligibility requirements. In so doing, they also took into account the definition of residential complex in the RTA.
[9] The courts have recognized that the OEB must be allowed to make its own decision at first instance. In the present case, that has happened. The Applicant complained to the OEB and its complaint was rejected.
[10] It had the option to appeal the Board’s decision to the Divisional Court but chose instead to institute this application.
[11] For the reasons set out below, I find that the OEB has exclusive jurisdiction in this matter and the application is stayed.
Analysis
[12] At the outset, it is important to note that the Superior Court of Justice has inherent jurisdiction, except where it is displaced or limited by statute.[^5]
[13] As noted in Skof v. Bordeleau,
The basic proposition applicable to R. 21.01(3)(a) can be stated fairly simply: either the Superior Court of Justice has jurisdiction over a claim or it does not. In deciding that issue, it must be remembered that the Superior Court of Justice, as a court of inherent jurisdiction, has a jurisdiction over every conceivable claim unless (i) the claim does not disclose a reasonable cause of action or (ii) the jurisdiction has been removed by legislation or by an arbitral agreement.[^6]
[14] However, courts have consistently held that where the subject matter involves a complex regulatory scheme and there is a body created by statute for, amongst other matters, the adjudication of disputes involving the interpretation of the provisions of that scheme, the courts should defer to the administrative body.
[15] In Mahar v. Rogers Cablesystems Ltd, the court outlined three situations where the courts are reluctant to permit jurisdiction to be divided between the regulatory body or tribunal and the courts:
- Where there is a regulatory framework with the legislature choosing a specific public body to supervise that regulatory framework;
- Where the courts have granted the administrative body at issue a curial deference with respect to their decisions; and
- Where Parliament or the legislature has created a statutory regime, which includes both rights and a procedure for their resolution.[^7]
[16] The Ontario Energy Board is a specialized regulatory body that regulates the electricity sector in Ontario. The OEB’s jurisdiction is set out the OEB Act. Under Part VII of the OEB Act, the OEB can receive complaints concerning conduct that may be in contravention of an enforceable provision and can make inquiries, gather information and attempt to mediate or resolve complaints as appropriate.[^8]
[17] At s. 3(c.2), the Act provides that an ’enforceable provision’ includes, ‘a provision of the Ontario Rebate for Electricity Consumers Act, 2016 or the regulations made under it’. There was a similar provision also making the provisions of the OFHPA enforceable by the OEB.
[18] Section 19 of the OEB Act indicates,
(1) The Board has in all matters within its jurisdiction authority to hear and determine all questions of law and of fact.
(6) The Board has exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction is conferred on it by this or any other Act.
[19] At s. 112.3, the OEB Act states,
If the Board is satisfied that a person has contravened or is likely to contravene an enforceable provision, the Board may made an order requiring the person to comply with the enforceable provision and to take such action as the Board may specify to,
(a) remedy a contravention that has occurred; or
(b) prevent a contravention or further contravention of the enforceable provision.
[20] An order made pursuant to s. 112.3 may only be made by a panel of the OEB Commissioners after a written notice of intention to make the order has been given by the OEB to the person and the person has also had the opportunity to require the OEB to hold a hearing. The person may also appeal the Board’s decision to the Divisional Court.
[21] As noted in Garland v Consumers’ Gas Company Ltd,[^9] the Ontario Court of Appeal expressly accepted that, given the exclusive nature of the OEB’s jurisdiction as confirmed by s. 19(6) of the Act, ‘there can be no issue of concurrent jurisdiction in the courts and the Board’.[^10] This position was confirmed in Snopko v. Union Gas,[^11] where the court held that the Board maintained exclusive jurisdiction even though there were properly pleaded, common law claims of breach of contract, negligence, unjust enrichment and nuisance that were otherwise within the jurisdiction of the court. As the court noted, ‘if the substance of the claim falls within the ambit of s. 38 the Board has jurisdiction, whatever legal label the claimant chooses to describe it.’[^12]
[22] In the present case, the substance of the application deals with matters that pursuant to s. 3(c.2) and the equivalent provision for OFHPA are enforceable provisions under the OEB Act.
[23] The Applicant is asking this court to do exactly what the OEB is authorized by statute to do. The argument that the application also involves the RTA does not in my view remove the matter from the jurisdiction of the OEB. The interpretation of the RTA was contemplated in the provisions of both the ORECA and OFHPA and guidance provided to the local distribution companies by the OEB.
[24] This application deals with issues that fall squarely within the jurisdiction of the Board. Consequently, the Respondents’ motion is granted, and the application is stayed.
Costs
[25] The parties should attempt to resolve the issue of costs themselves, however, if the parties cannot resolve the issue of costs, brief written submissions of no more than one page, with attachments including Offers to Settle and a detailed Bill of Costs, are to be provided with 15 days with a right of reply within a further five days.
Madam Justice Julianne Parfett
Date: April 12, 2021
Released: April 12,2021
[^1]: S.O. 2016, c.19. [^2]: S.O. 2017, c.16, Sched.I. The provisions of the OFHPA that are at issue in the Application were repealed effective November 1, 2019. [^3]: 1998, S.O. 1998, c.15, Sched. B. [^4]: S.O. 2006, c.17. [^5]: Courts of Justice Act, RSO 1990, c. C.43, s. 11(2). [^6]: 2020 ONCA 729 at para. 8. [^7]: 1994 7129 at para. 16. See also Pro-Demnity Insurance Co. v. Ontario (Financial Services Commission) 2015 ONSC 5999. [^8]: S. 105 of the OEB Act [^9]: 2001 8619 (OCA) [^10]: At para. 27. Appeal to SCC allowed on the basis that a concurrent common law claim of unjust enrichment could be heard by the court. See 2004 SCC 25 at paras. 70-73. [^11]: 2010 ONCA 248. [^12]: At para. 24.```