In late 2025, Ontario passed Bill 40, Protect Ontario by Securing Affordable Energy for Generations Act, 2025 (the Energy for Generations Act). The legislation made many amendments to existing energy law, including the addition of section 13.1 to the Ontario Energy Board Act, 1998 (the “OEB Act”) regarding the CEO and policies related to hearings and determinations. The new section sets out that:
13.1 (1) The chief executive officer may issue policies to commissioners and employees of the Board respecting any of the following matters:
1. Timelines for conducting a hearing.
2. Timelines for making a determination, if it is being made by an employee exercising a power or performing a duty delegated to the employee under section 6.
3. Requirements respecting information or documents to be considered in conducting a hearing or making a determination.
4. Any other matter prescribed by the regulations.
Limitation
(2) Nothing in subsection (1) authorizes the chief executive officer to issue a policy that conflicts with this Act, the regulations or any other instrument made under this Act, any other Act or regulation, or the rules made by the Board under section 25.1 of the Statutory Powers Procedure Act.
Effect of non-compliance
(3) The failure of a person to comply with a policy issued under subsection (1) does not affect the validity of any action taken by the person.
On December 16, 2025, following the passage of the Energy for Generations Act, the CEO of the OEB issued a letter on the new law, in which she stated:
I see this as a critical tool to ensure that government policy is considered in deciding applications before the OEB, and that adjudicative matters are dealt with efficiently and effectively. In exercising this new authority, I will be guided by an ongoing commitment to preserve the independence of the OEB’s adjudicative function, which is central to our role as an energy regulator and ensured through our governance structure and legislative safeguards. (emphasis added)
On January 30, 2026, the CEO of the OEB issued the first policy (CEO Policy 2026-01) under the new authorities granted to her by the Energy for Generations Act, namely:
In supporting the hearing and determination of matters by Commissioners, OEB staff shall identify those portions of Energy for Generations, Ontario’s Integrated Plan to Power the Strongest Economy in the G7 (June 2025) [the IEP] that are relevant to the matters in issue in the proceeding. OEB staff shall give effect to this policy direction in any proceeding other than one that is being decided without a hearing, and regardless of whether staff are otherwise actively participating in the proceeding.
The policy is to be applied to applications filed on or after January 30, 2026.
Commentary
What is the need for, and the goals and implications of, the CEO’s new authorities for the OEB, regulated entities filing applications, and other stakeholders? It is early days and the answers are unclear. With the legislative amendments, it appears the government is attempting to ensure OEB hearings take the government’s policy preferences into account, which is reinforced by the first CEO policy issued pursuant to those amendments instructing OEB staff to essentially keep the government’s new energy policy top of mind. However, the amendments also appear to blur the roles and responsibilities of the CEO and the chief commissioner in respect of adjudicative matters.
Responsibilities and Authorities of the Chief Commissioner
As Ontario energy sector stakeholders know well, between 2019 and 2022 the government undertook an OEB modernization initiative to “reform the governance structure of the Ontario Energy Board (OEB) and ensure a greater separation of its administrative and adjudicative functions.”This structural transition and separation was established by creating (1) a board of directors, led by a chair, responsible for governance and strategic oversight of the OEB; (2) a CEO, separate from the chair and not a member of the board of directors, responsible for managing the operational and policy aspects of the OEB; (3) commissioners, assuming the adjudicative role in hearing and determining matters within the OEB's jurisdiction; and (4) a chief commissioner, accountable to the CEO, responsible for assigning casework to commissioners and ensuring the efficiency, timeliness and dependability of the regulatory process.The responsibilities of the various OEB officials are set out in the OEB Act and further articulated in the OEB’s bylaws. For example, section 4.3 (11) of the OEB Act, regarding the duties of the chief commissioner, states that:
The chief commissioner shall,
(a) ensure the efficiency, timeliness and dependability of the hearing and determination of matters over which the Board has jurisdiction, including by directing and supervising commissioners with respect to efficiency, timeliness and dependability…
The OEB Act (s. 4.1 (15)) also requires the OEB’s board of directors to establish an adjudication committee which “may require the chief commissioner to provide to it such information it specifies… respecting the efficiency, timeliness and dependability of the hearing and determination of matters over which the Board has jurisdiction”.Further, the OEB’s Bylaw #1, section 7.4 (4) states that the powers, duties and functions of the chief commissioner include:
making such Adjudication Instruments and establishing such Adjudication Policies as the Chief Commissioner considers appropriate to enhance the Board’s adjudicative process and promote the just, expeditious and efficient hearing and determination of matters…
The bylaw defines Adjudication Instruments and Adjudication Policies as follows:
“Adjudication Instrument” means any instrument related to the filing of applications or the manner in which matters are heard and determined that is intended for use by third parties, including Rules of Practice and Procedure, filing guidelines, filing requirements and Handbooks, but does not include any instrument that under the Act is required to be made by the Board of Directors or the Chief Executive Officer.
“Adjudication Policy” means any instrument related to the hearing and determination of matters that is intended for the Board’s own internal use and not for use by third parties, and includes any policies regarding peer review and any performance standards established in relation to the hearing and determination of matters.
This makes it clear (as well as consistent with the government’s goals of OEB modernization) that the OEB Act and the OEB bylaws put adjudicative matters, including the ability to direct commissioners, under the authority of the chief commissioner. That is to say, the chief commissioner already had adequate authorities to ensure that government policies (such as the IEP) would be considered in the OEB’s adjudicative activities – and indeed, he has exercised his authorities in relation to those policies. See, for example, a December 16, 2025 letter from the chief commissioner on the 2027 Cost of Service Filing Requirements for Electricity Distributors in which he noted, among other things, that certain filing requirements had been updated to reflect items in the government’s IEP directive and changes to the statutory objectives of the OEB related to supporting economic growth.
As a result, it is also not obvious why CEO Policy 2026-01 was necessary, because additional references to the IEP could, if needed, be incorporated into filing requirements, standard issues lists, and other adjudicative instruments and policies by the chief commissioner, thereby ensuring that relevant matters are raised in a proceeding. Thus, the new CEO authorities appear to create elements of uncertainty by introducing overlapping responsibilities between the CEO and chief commissioner over adjudicative matters. Moreover, by clouding the relatively clear lines of authority and accountability that were established as part of the OEB modernization initiative, the changes will likely raise broader questions about whether the government is subtly reversing the changes instituted by the OEB modernization initiative.
Guidance is Needed
In the interests of providing guidance and clarity to OEB staff, commissioners, applicants, and participants in a commissioner-adjudicated hearing, there is much merit in the OEB developing and issuing a specific protocol and/or joint CEO-chief commissioner statement explaining how and when CEO policies will be exercised, especially when a CEO policy concerns the OEB’s adjudication function. These should address questions such as:
Conclusion
There are more transparent and easier ways of ensuring government policies are considered during OEB adjudicative (and non-adjudicative) proceedings. Rather than pursuing legislative intervention (or directives), the government could participate in proceedings where it determines that consideration of government policy is of critical importance. Direct participation by the government in proceedings would have avoided the issues created by the amendments discussed here.
However, the government has chosen the legislative path at this time, and now clarification is needed on what safeguards, parameters, and mechanisms will be put in place to operationalize the new authorities of the OEB’s CEO. Applicants need sufficient guidance to develop their applications in a manner that is responsive to any applicable CEO policy direction and in order to be prepared for their proceeding. In the absence of further details, a potentially significant new uncertainty has been inserted into the application and hearing process.
For the past 25 years, the distinguishing characteristic of Ontario’s energy sector is a dynamic, quickly evolving regulatory, policy, and institutional landscape. These new CEO authorities are the latest development in this complex regulatory environment that stakeholders – especially applicants – will need to monitor, assess and respond to as policies are issued and the authorities evolve.Please contact Power Advisory if you have any questions or would like any additional information.