When is a Decision Subject to Judicial Review?

Ontario Courts will apply judicial review scrutiny to “public” decisions.

What this means in practice has been the object of much judicial ink: see, generally, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26; Ontario Place Protectors v. Ontario, 2025 ONCA 183.

Where the State delegates adjudicative functions that would traditionally be within the purview of the Courts, those decisions are nevertheless amenable to judicial review. 

However, for the Courts to have jurisdiction over an administrative decision, that decision must be “public” in nature. Private disputes remain the concern of civil proceedings; they cannot be analyzed through the lens of judicial review.

A recent ruling by the Ontario Court of Appeal, West Whitby Landowners Group v. Elexicon Energy Inc., 2025 ONCA 821, establishes when a decision will be sufficiently public to attract administrative law remedies under Ontario’s Judicial Review Procedure Act, R.S.O. 1990, c.J.1 (the “JRPA”).

Expansion or Enhancement?

Elexicon involved a challenge to a decision of the Ontario Energy Board (the “Board” or the “OEB”). 

The appellant was a corporation acting on behalf of 11 real estate developers in Whitby, Ontario. 

The respondent, Elexicon, was the distributor of electricity in the Whiby Region, pursuant to its authority under the Ontario Energy Board Act, 1998, S.O. 1998, c.15, Sched B (the “Act”).

The appellant corporation developed a subdivision in Whitby.

Accordingly, the corporation and Elexicon entered into an “Offer to Connect” agreement in which Elexicon agreed to provide the new subdivisions with electricity.

Pursuant to the Distribution System Code in the Act (the “Code”), new electricity substations may be classified as either an “expansion” or “enhancement”. 

If the substation is an “expansion”, Elexicon would be required to charge the corporation a capital contribution cost for the construction of the substation. By contrast, if it is an “enhancement” only, the costs must be borne by Elexicon.

The “Offer to Connect” agreement included a provision that referred this determination to the OEB, which the parties agreed would be binding. 

Accordingly, the corporation wrote to the OEB’s Industry Relations Office requesting an interpretation that resolved, among other things, whether the substation was an expansion or enhancement. The corporation further requested that if the OEB’s Industry Relations Office could not provide a final determination on the matter, then the matter should be referred to the OEB for a full hearing.

The OEB responded with its staff’s “views and conclusions” that the substation constituted an expansion, and thus, the corporation would have to bear the capital costs associated with its construction. 

The corporation requested a further reconsideration of the matter by the OEB in subsequent correspondence, advising that the OEB had left certain of the corporation’s questions unresolved and had merely provided an “opinion”. In subsequent correspondence, the corporation requested a full hearing to resolve the matter.

On December 18, 2020, the OEB provided further correspondence, advising that it was confirming its earlier analysis that the substation was an expansion. 

However, the OEB revised its conclusion on the capital costs distribution between the parties and stated it was its view that Elexicon was, in fact, liable for $710,109 of the costs relating to the substation (the “Decision”).

The corporation brought an application for judicial review to the Ontario Divisional Court, which was dismissed partly on the basis that the OEB did not exercise a “statutory power of decision”, such that the Decision was not amenable to judicial review under the JRPA (the “Divisional Court Order”). 

The corporation appealed the Divisional Court Order to the Court of Appeal, as well as a related Superior Court order.

The Court of Appeal allowed the appeal of the Divisional Court Order. 

The Court of Appeal disagreed with the Divisional Court that the Court lacked jurisdiction to judicially review the OEB’s Decision. 

A number of important principles emerge from the Court of Appeal’s analysis:

1. There are Two “Roads to Rome”.

Section 2 of the JRPA provides two avenues by which the Court can assume jurisdiction in a judicial review application:

• Where the proceeding is by “way of an application for an order in the nature of mandamus, prohibition or certiorari” (s.2(1)1); and
• Where the proceeding by way of an action for a declaration or an injunction, or both, is “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power” (s.2(1)2).

2. Certiorari Available for “Public” Decisions.

Under section 2(1)1 of the JRPA, where the remedy sought is akin to certiorari, i.e., the party is seeking to quash the decision in question, the JRPA does not provide an express legal test.

Accordingly, the Court held that the fundamental concern is to determine whether the decision is one of “sufficiently public character”.

For this inquiry, it does not matter whether the body that made the decision is exercising a “statutory power”. All that matters is that the decision is public in nature. 

To determine whether a decision is sufficiently public to attract the remedy of certiorari, the Courts may give weight to a non-exhaustive list of factors, from the decision in Air Canada v. Toronto Port Authority, 2011 FCA 347. 

Known as the “Air Canada factors”, they include a consideration of:

• The character of the matter for which review is sought;
• The nature of the decision-maker and its responsibilities;
• The extent to which a decision is founded in and shaped by law, as opposed to private discretion;
• The decision-making body’s relationship to other statutory schemes or other parts of government;
• The extent to which a decision-maker is an agent of government or is directed, controlled, or significantly influenced by a public entity;
• The suitability of public law remedies; and
• Whether the decision belongs to an “exceptional” category of cases where the conduct has attained a “serious public dimension”.

The Court was careful to note that the Air Canada factors cannot be used to convert an inherently private decision into a public one simply on the basis that the decision affects a “significant interest or broad segment of the public”.

In this case, applying the Air Canada factors, the Court reasoned that the OEB Decision was sufficiently public and amenable to the remedy of certiorari for the following reasons:

• The “character of the matter in dispute was a decision by the OEB on a legal question involving the interpretation and application of the Code”;
• The OEB had “exclusive jurisdiction” to resolve complaints regarding the Code’s interpretation and application;
• Even if the OEB’s Decision was effected by the private agreement between the corporation and Elexicon, this did “not alter the public character of OEB’s actions or the appropriateness of public law remedies”; and
• The absence of a “formal compulsory power”, i.e., the OEB Decision did not come in the form of an Order, did not detract from the public nature of the Decision. The Air Canada factors were mere “analytical aids”, not a “formal checklist” where each criterion had to be met.
  

3. Judicial Review Also Available for “Statutory Powers of Decision”

The other way in which a decision will attract judicial review scrutiny is under section 2(1)2 of the JRPA. 

Under this section, judicial review is available where the decision-maker has exercised a “statutory power of decision”, which, as defined under section 1 of the JRPA, involves a power or right conferred under a statute to make a decision prescribing, among other things, the “legal rights, powers, privileges, immunities, duties or liabilities of any person or party” or the “eligibility of any person or party to receive, or to the continuation of, a benefit or licence …”.

The fact that a decision-maker has discretion to resolve the dispute does not detract from the fact that a statutory power of decision is being made.

Once a decision-making body, like the OEB in this case, “undertook to provide a final determination on the interpretation and application of the Code … the usual public law principles of reviewability applied to that determination”.

Moreover, the OEB’s choice to render its decision by way of correspondence, rather than formal order, did not bar judicial review.

The OEB was clearly exercising a statutory power pursuant to its authority under the Act.

On the question of whether the decision decided “legal rights, powers, privileges, immunities, duties or liabilities of any person or party”, the Court held that the OEB’s interpretation of the Code “prescribed the legal rights of Elexicon” and determined the “contractual relationship between the parties”.

The Availability of Judicial Review in Ontario

Elexicon provides a helpful, formulaic approach to determining if judicial review is available for an administrative decision under section 2 of the JRPA.

In deciding whether a decision can be subject to substantive review or procedural fairness principles, the Court must ask fundamental questions about the nature of the decision at issue or whether it has been made pursuant to statute.

In this way, Elexicon preserves the Court’s jurisdiction to audit administrative decision-making by way of judicial review.

Marco P. Falco is a Partner at Torkin Manes LLP focusing on judicial review, public law, and appellate litigation. You may contact Marco about your judicial review application at mfalco@torkin.com. Please note that a conflict search will need to be conducted before your matter is discussed.