Ontario Ontario Leave to Construct Approval (8-ON-c)
A "person" includes municipal corporations and public utility commissions. O. Reg. 161/99, s. 1(1). A "public utility commission" is "a commission established under the Public Utilities Act or any other general or special Act, or any body, however established, through which a municipal corporation generates, transmits, distributes or retails electricity, other than a corporation established pursuant to section 142 of the Electricity Act." O. Reg. 161/99, s. 1(1). An "electricity transmission line" is "a line, transformers, plant or equipment used for conveying electricity at voltages higher than 50 kilovolts." S.O. 1998, c. 15, Sched. B, s. 89. An Order Granting Leave to Construct is not required where a person constructs or reinforces an electricity transmission line that is 2 kilometers or shorter, or where a person expands an electricity transmission line by 2 kilometers or less. O. Reg. 161/99, s. 6.2(1)(c), (d).
The Ontario Energy Board (Board) regulates the construction, expansion, and reinforcement of electricity transmission lines longer than 2 kilometers pursuant to the Ontario Energy Board Act, the Ontario Statutory Powers Procedure Act, and Ontario Regulation 161/99, Definitions and Exemptions.
Ontario Leave to Construct Approval Process
8-ON-c.1 to 8-ON-c.4 – Does the Project Qualify for an Exemption?
If the Ontario Energy Board (Board) believes special circumstances exist, the Board can, without holding a hearing on the matter, exempt an applicant (developer) from having to submit an Application. S.O. 1998, c. 15, Sched. B, s. 95. The applicant (developer) has the burden of proving special circumstances, which, in the past, has included whether there is a need to obtain necessary land rights prior to construction, whether there are any environmental impacts, or if there are other concerns raised by landowners, among other circumstances. Applications Under Section 92 of the Ontario Energy Board Act Manual, p. 2. An Application for an Exemption from needing an Order Granting Leave to Construct should also include a project summary report. Applications Under Section 92 of the Ontario Energy Board Act Manual p. 2.
8-ON-c.5 – Application for an Order Granting Leave to Construct
A developer may need to submit an Application for an Order Granting Leave to Construct (Application) to the Ontario Energy Board (Board). S.O. 1998, c. 15, Sched. B, s. 92(1). A complete Application may include a fee set by the Board. S.O. 1998, c. 15, Sched. B, ss. 12.1(2). A complete Application must also include, at minimum, the following:
- The name of the applicant and any partnerships involved in the Application;
- Details of the authorized representative of the applicant, including the name, phone and fax numbers, and email and delivery addresses;
- An outline of the business of the applicant and the parties to the application;
- An explanation of the purpose of the project for which leave to construct is being sought;
- A concise description of the routing and location of the project, including the affected municipalities and regions;
- An indication of any shared corridors where there could be cross circuit interference, and of any issues related thereto with the owning authority;
- A description of project components and their locations, activities, and related undertakings;
- An explanation of how the project is in the public interest, as defined by section 96(2) of the Ontario Energy Board Act;
- The current project schedule (note that the Order of the Board will likely have an expiry date by when the project must have commenced);
- A detailed description of location of the project and its components;
- maps (1:50,000 or larger) showing the route, facility sites and any proposed ancillary facilities;
- A description of the location of project components and related undertakings;
- A draft of a drawing suitable for publication with the Notice of Hearing (this drawing is to indicate the general area of the project and identify features so that potentially affected landowners can determine if they have an interest in the application, and the final version of this drawing for publication will be decided following discussion with the Board case manager and the applicant);
- Line drawings of the proposed facility, showing supply connection(s) to the proposed facility and delivery facilities from the proposed facility to any adjacent transmission and/or distribution system(s);
- The nominal rating of the main components of the project, including transformers;
- Evidence in support of need;
- Apportionment of costs, which includes the following information:
- labor, including a breakdown by facility installations;
- materials, including a breakdown of all facility costs;
- cost of similar projects constructed by the applicant or by other entities for baseline cost comparisons covering:
- in-service year of the comparator project;
- similarities and differences in terms of voltage level, type of towers, type of terrain, etc.
- acquisition of land use rights, and land acquisition including permanent and working easements, survey and appraisals, legal fees, crop and damage compensation;
- direct and indirect overheads broken down by facility installation; and,
- allowance for funds used during construction;
- network reinforcement (if applicable);
- a description of the physical design of the project including:
- a section by section description of the physical form of the line;
- transmission line details, including conductor type, ratings;
- transmission structure description including the variety of towers;
- transmission cable burial information and cross-section; and
- line terminations;
- a map that includes:
- the route of the line and the Lot number and Concession number of the land over, under, on or adjacent to which, the line runs;
- the plan of each section of the transmission line in relation to the description and indicating clearances to the land profile or, where buried, in relation to the surface;
- the right-of-way dimensions and an indication of where the route crosses privately owned land; and
- indication of where Section 41(9) of the Ontario Electricity Act, regarding disagreement over the location of structures, equipment or facilities over, under or on Public streets and highways, may be applicable;
- operational details, including:
- the control stations; and
- the monitoring and metering locations;
- a description of the land rights, including:
- the type of land rights proposed to be acquired for the project and related facilities (e.g. easement, fee simple);
- the nature and relative proportions of land ownership along the proposed route (i.e. freehold, Crown or public lands);
- where no new land rights are required, a description of the existing land rights that allow for the project.
- where no new land rights are required, but the land rights of adjacent properties might be affected (e.g. building restrictions on those lands); and
- where section 41(9) of the Ontario Electricity Act may be brought to bear for the use of public roads and highways as part of the route;
- a description of the land area required, including:
- the width(s) of any right-of-way required on new and/or existing easements;
- the location and ownership of land with existing easements and of any new easements or land use rights that will be required; and
- the need and amount of additional temporary working rights required at designated locations such as crossings of rivers, roads, railways, drains and other facilities;
- The land acquisition process, including:
- identification of the properties and the property owners and/or tenants affected by the proposed construction (landowners line list); and
- Evidence of discussion and/or agreements regarding sections of the route where section 41(9) of the Ontario Electricity Act may be applicable;
- Proof that the developer has offered or will offer an agreement in a Board-approved form to every landowner whose land is affected by the project's route or location
- Note: A draft of such an agreement can be found at Applications Under Section 92 of the Ontario Energy Board Act Manual, p. 28–30;
- a System Impact Assessment (SIA), which is completed as part of IESO's Connection Assessment and Approval Process;
- Note: If a final SIA is not available at the time of Application submission, the applicant (developer) may instead submit a draft SIA and notice of the final SIA's availability date.
The applicant (developer) must also show the Board that the project will not degrade the electricity service of customers of the transmitter to which the applied for line is connecting, in the form of a Customer Impact Assessment (CIA). A CIA is required for any project where the IESO's connection assessment and approval process require an SIA or the developer determines that the project may have an impact on existing customers. If a CIA is not required, the developer must still notify existing nearby customers of the project and the developer's decision not to perform a CIA because no customer impact is expected. Applications Under Section 92 of the Ontario Energy Board Act Manual, p. 26–27.
A rate-regulated applicant (developer) will need to include the following in addition to the general requirements for an Application:
- The project's classification out of three possibilities:
- a development project, which provides an adequate supply capacity and/or maintains an acceptable or prescribed level of customer or system reliability for load growth or for meeting increased stresses on the system, or enhances system efficiency such as minimizing congestion on the transmission system and reducing system losses;
- a connection project, which provides a connection of a load or generation customer or group of customers to the transmission system; or
- a sustainment project, which maintains the performance of the transmission network at its current standard or replacing end-of-life facilities on a "like for like" basis;
- whether the project is discretionary or non-discretionary;
- Examples of discretionary projects include projects to reduce transmission system losses, reduce congestion, build or enhance an existing interconnection to increase generation reserve margin within the IESO-controlled grid, enhance the reliability beyond a minimum standard, or add flexibility to the operation and maintenance of the transmission system.
- Examples of a non-discretionary project include projects triggered by mandatory requirements to satisfy obligations specified by regulatory organizations, a need to connect a new load or generation connection, a need to address equipment loading or voltage stresses when their rated capacities are exceeded, projects identified in a provincial government approved plan, projects that are required to achieve provincial government objectives that are prescribed in governmental directives or regulations, or a need to comply with direction from the Board in the event it is determined that the transmission system's reliability is at risk;
- Cost-benefit analysis, including the preferred option (being the project as proposed), alternative options (including a "do nothing" option for discretionary projects), and whether there is an opportunity for CDM (Electricity Conservation and Demand Management) to defer the investment;
- A comparison of various risk factors, including financial risk to the applicant, inherent technical risks, estimation accuracy risks, and any other critical risk that may affect the business case supporting the project;
- Qualitative and quantitative benefits;
- A transmission rate impact assessment; and
- A request for the establishment of a deferral account (optional).
In addition to the general requirements, a non-rate regulated applicant (developer) must include information on the impact of their project on other rate-regulated transmitters' projects. Applications Under Section 92 of the Ontario Energy Board Act Manual, p. 20–21.
For more detailed information on Application requirements, see the Applications Under Section 92 of the Ontario Energy Board Act Manual.
8-ON-c.6 to 8-ON-c.7 – Review Application Materials for Completeness
The Board must review the Application materials for technical completeness. Ontario Energy Board – Resource Guide for Regulated Entities, p. 15.
8-ON-c.8 – Publish Notice of Application and Public Hearing
The Board must publish notice of the Application in newspapers, post it on the Board's website, or serve it on individuals. In that same notice, the Board can also announce that it will hold a public hearing on the application. The notice must include the subject matter to be decided at the hearing, whether the proceeding would be written or oral, and the steps required to participate in the hearing. Ontario Energy Board – Resource Guide for Regulated Entities, p. 15.
Additional notice requirements vary depending on the type of hearing to be held. Notice of an oral hearing must include:
- The time, place, and purpose of the hearing; and
- A statement that if the party notified does not attend the hearing, it will go on without that party and that party will not be entitled to further notice in the proceeding.
Notice of a written hearing must include:
- The time, place, and purpose of the hearing;
- Details about how the written hearing will be held;
- A statement that the hearing may not be held as a written hearing if a party satisfies the Board that there is good reason for not holding a written hearing and the procedure for making that claim; and
- A statement that if a party does not participate in the hearing or make a claim that the hearing should not be written that the hearing will continue.
8-ON-c.9 to 8-ON-c.10 – Hold Public Hearing
The Board is required by law to hold a public hearing before issuing an order on applications that it receives. S.O. 1998, c. 15, Sched. B, s. 21(2). The hearing may be written or oral. Ontario Energy Board – Resource Guide for Regulated Entities, p. 15. An oral hearing must be open to the public and documents submitted for a written hearing must be accessible to the public unless the matters involving public security may be disclosed or if intimate financial or personal matters may be disclosed and the desirability of avoiding that disclosure outweighs the value of making the hearing public. R.S.O. 1990, c. 22, s. 9(1)–(1.1).
The public can also participate in the hearing in several ways. Citizens can actively participate in the hearings as an intervenor if they file a letter of intervention with the Board and send a copy to the applicant (developer). Citizens can also file a request to receive observer status if they do not want to actively participate in the hearing, but still want to monitor the proceeding's progress by receiving all Board-issued documents. Citizens can also submit written or oral comments to the Board without having to become an intervenor. Written comments become part of the public record but are not sworn evidence or subject to cross-examination. Citizens must make arrangements with the Board Secretary to make an oral comment, which may or may not be made under oath and subject to cross-examination. Ontario Energy Board – Resource Guide for Regulated Entities, p. 13.
8-ON-c.11 – Review Application Materials for Approval
The Ontario Energy Board (Board) must approve an Application if the Board thinks the project is in the public interest. S.O. 1998, c. 15, Sched. B, s. 96(1). When considering whether a project is in the public interest, the Board can only consider:
- Interests of the consumer regarding prices and the reliability and quality of the electricity service; and
- Promotion of the use of renewable energy sources (where applicable and in a manner consistent with the policies of the provincial government).
If the Lieutenant Governor in Council issues an order declaring that a project is needed as a priority project, the developer must still apply for an Order Granting Leave to Construct, but the Board must accept that the project is needed when it considers if the project is in the public interest. S.O. 1998, c. 15, Sched. B, s. 96.1.
8-ON-c.12 to 8-ON-c.14 – Provide Notice of Decision
The Board must issue an Order in writing within 60 days of deciding on the Application. S.O. 1998, c. 15, Sched. B, s. 22.1; R.S.O. 1990, c. 22, s. 17(1). The Board can impose on an Order any conditions that it deems proper. S.O. 1998, c. 15, Sched. B, s. 23(1). If the Board refuses to grant the leave, the developer can request the justifications of that decision. R.S.O. 1990, c. 22, s. 17(1).
The Board must send a copy of the final order to each party who participated in the proceeding, including any justifications for the decision, by mail, electronic transmission, facsimile, or some other method that allows proof of receipt. R.S.O. 1990, c. 22, s. 18(1).
8-ON-c.15 to 8-ON-c.18 – Did Any Later Approvals Result in Material Changes to the Project? (If Applicable)
The applicant (developer) may need to advise the Board of any material changes to the project if they were required as the result of approval processes sought after obtaining an Order Granting Leave to Construct. The applicant (developer) may also be required to show the Board that the amended project is still in the public interest. Applications Under Section 92 of the Ontario Energy Board Act Manual, p. 2–3.
8-ON-a.19 – Appeal Board Decision to Divisional Court (Optional)
An applicant (developer) can appeal a Board's order to the Ontario Divisional Court upon a question of law or jurisdiction within 30 days. S.O. 1998, c. 15, Sched. B, s. 33(1)(a), (2). To appeal, the developer must serve a Notice of Appeal (Form 61A) and an Appellant's Certificate Respecting Evidence (Form 61C) on the Board within 30 days of the Board's order. The developer must also file these documents and proof of service within 10 days of serving those documents to the Board. The Notice of Appeal must include, at minimum, the relief sought, the grounds of the appeal, and the basis for the Divisional Court's jurisdiction to hear the appeal. The Certificate Respecting Evidence includes all of the evidence that the developer thinks is necessary for the appeal. Ontario Ministry of the Attorney General – Guide to Appeals in Divisional Court.
Once the developer files the Notice of Appeal and Appellant's Certificate Respecting Evidence, the Board has 15 days to respond by filing a Respondent's Certificate Respecting Evidence (Form 61D) that either confirms the Appellant's Certificate or sets out any additions or deletions to it. Within 30 days of filing the Notice of Appeal, the developer must order transcripts from the Board and file a Certificate of Ordering a Transcript for Appeal, if the appeal requires transcripts. Transcripts are required for an appeal if a witness testified at the hearing and either the developer or the Board believes all or part of their testimony will be relevant to the appeal. The developer must also pay the fee for ordering the transcripts, and the whole transcript is typically not required, only the portions that are relevant to the appeal. Ontario Ministry of the Attorney General – Guide to Appeals in Divisional Court.
The developer must "perfect" the appeal within 30 days of filing the Notice of Appeal by filing and serving all the required documents, followed by filing and serving of a Certificate of Perfection and paying the applicable fee. The required documents include an Appeal Book and Compendium, an Exhibit Book, an Appellant's Factum, and any required transcripts. The developer may also serve and file a Book of Authorities. For specific details and requirements for each of these documents, see the Ontario Ministry of the Attorney General – Guide to Appeals in Divisional Court. The developer has 30 days to perfect the appeal if no transcripts are required and 60 days if the developer must order transcripts for the appeal. Ontario Ministry of the Attorney General – Guide to Appeals in Divisional Court.
Within 60 days of being served with the developer's documents, the Board must serve to the developer and file with the Divisional Court a Respondent's Compendium, a Respondent's Factum, and an optional Book of Authorities if the Board wants the Divisional Court to consider anything not already in the developer's Book of Authorities. Once the developer perfects the appeal, the Divisional Court Registrar puts the appeal on the list of cases to be heard in the Divisional Court and mail a Notice of Listing for Hearing (Form 61G) to anyone listed in the Certificate of Perfection. The Divisional Court holds a hearing and can either decide the appeal immediately or "reserve" the decision to be delivered later.
8-ON-a.20 – Appeal Divisional Court Decision to the Court of Appeal (Optional)
The developer can appeal a Divisional Court decision to the Court of Appeal for Ontario with leave of that court.
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