Leave to Appeal Granted in Electrical Grid Access Case

Chris Lee and Kiren Purba successfully obtained leave to appeal the Divisional Court’s decision in West Whitby Landowners Group v. Elexicon Energy. The appeal will be to the Court of Appeal for Ontario.

The decision is significant because it creates a new test for when a Divisional Court decision can be appealed. The previous test had been in place for over 50 years and pre-dated the Canadian Charter of Rights and Freedoms and the modern administrative state. The new test recognizes the importance of administrative law, and public law. The new test is an updated and more flexible approach that focuses on the Ontario Court of Appeal’s roll in monitoring, clarifying, and developing Ontario’s jurisprudence. The previously applied test was created in the 1973 case of Sault Dock Co. Ltd. and City of Sault Ste. Marie.

WWLG sought and was granted leave to appeal on the basis that the Divisional Court’s decision appears to insulate certain Ontario Energy Board decisions from judicial review.

The case involves a dispute over the allocation of $4.2 million in costs related to an electrical substation connection required to service residential developments in Whitby. The West Whitby Landowners Group Inc. applied for a judicial review of decisions of the Ontario Energy Board regarding the allocation of costs associated new electricity infrastructure. The Divisional Court found that it did not have jurisdiction to hear the application and that question will now be considered by the Ontario Court of Appeal.

Read more about the case here: https://canlii.ca/t/k8c3w