Appeals, Judicial Review and Institutional Design: Blockchain Labrador Corporation v. Board of Commissioners of Public Utilities, 2025 NLCA 35; Jardins de Vérone c. Ville de Québec, 2025 QCCA 123

Two recent appellate decisions prompt further thought on the general issue of how Canadian courts should deal with legislative design choices for regulatory regimes and the specific issue of how to address the potential overlap between applications for judicial review and rights of appeal. In particular, the Newfoundland and Labrador Court of Appeal has taken a different view from what a majority of the Alberta Court of Appeal (noted here) intimated about the scope of a right of appeal on questions of “jurisdiction”. (Note that I have revised my ‘Year in Review‘ paper to integrate these decisions.)

Blockchain Labrador Corporation v. Board of Commissioners of Public Utilities, 2025 NLCA 35 dealt with an issue that is becoming more and more prevalent — a regulatory decision about power to a cryptocurrency mining operation overlaid with a directive from the provincial cabinet (see also the discussion of the Conifex decision here). Here, the provincial cabinet exempted the public utility from providing electricity on a “firm rate” (i.e. guaranteed service) to such an operation. Ultimately, the Board approved an application by the utility to set a non-firm rate for customers on the system serving the Corporation’s operation, rejecting the Corporation’s argument that it fell within an exemption to the exemption.

The absence of a guarantee of service is a significant problem for cryptocurrency mining and the Corporation sought leave to appeal on a number of grounds:

1.                 The Board denied it procedural fairness and natural justice by deciding the Application without conducting an oral hearing.

2.                 The Board erred by failing to consider and apply section 4 of the EPCA, which requires the Board to implement the power policy set out in section 3 of the EPCA.

3.                 The Board erred in interpreting OC 2022-266 as exempting NL Hydro from supplying Blockchain with electrical energy on a firm basis.

4.                 The Board erred by finding that 20 MW of power available on the Labrador Interconnected System in winter was properly considered non-firm power, subject to the new non-firm rate.

5.                 The Board erred by failing to decide if a contract existed between NL Hydro and Blockchain, pursuant to which NL Hydro was required to supply Blockchain with up to 20 MW of power when it became available.

But the right of appeal is confined to questions of “law” or “jurisdiction”. KJ O’Brien JA held that grounds 4 and 5 were not jurisdictional in nature.

Interestingly, the Board took the position that all 5 grounds were either questions of law or jurisdiction:

The Board submits that allowing its orders to be reviewed both by judicial review and via statutory appeal frustrates the statutory purpose of resolving appeals promptly, noting that subsection 99(1) of the PUArequires an application for leave be taken within 15 days. The Board further submits that allowing both judicial review and statutory appeal is duplicative, wastes judicial resources, and risks giving appellants “two bites at the cherry” (at para. 14).

…

Despite the conventional, modern interpretation, the Board submits that historically “jurisdiction” was broadly interpreted and formed the conceptual basis for all judicial oversight of inferior courts, citing Groenwelt v. Burwell (1738), 91 E.R. 134, 1 Salk 144; R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw, [1951] EWCA Civ 1, at 6-10; Re Toronto Newspaper Guild, Local 87, American Newspaper Guild (C.I.O.); and Globe Printing Company, [1951] CanLII 145 (ON SC), aff’d 1953 CanLII 10 (SCC), [1953] 2 S.C.R. 18. While the Board acknowledges that these cases have been overtaken by more modern approaches to judicial review, the Board asks this Court to revive the broader, historical approach to “jurisdiction” to essentially mitigate the effects of Yatar. In short, the Board invites us to interpret “questions of jurisdiction” so broadly that it would encompass all potential grounds of judicial review, leaving statutory appeal as the only avenue for review of the Board’s orders (at para. 17).

KJ O’Brien JA was not persuaded. Acknowledging the risk of “duplication of judicial effort” (at para. 18), she nonetheless concluded that the Supreme Court in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 “did not suggest interpreting limited statutory rights of appeals so broadly as to be unlimited” (at para. 22). Any change in that regard would have to come from the legislature by expanding the right of appeal to cover all questions, not just questions of law or jurisdiction. It is also notable that the Court of Appeal had, in a series of quite recent decisions, given a narrow interpretation to “jurisdiction” as excluding any issues of mixed fact and law (at para. 15).

Leave could not be granted on grounds 4 and 5 as they related to factual findings which simply fell outside the scope of the appeal clause, properly interpreted. Her comments on ground 5 are worth quoting:

Although Blockchain suggests before this Court that the absence of an oral hearing prevented it from presenting evidence about NL Hydro’s contractual commitments, that is not the true thrust of this issue. The Board did not reject Blockchain’s claim to the 20 MW of power because of a lack of evidence about NL Hydro’s commitments. It rejected it because it found that there was no firm power available. As already noted, this was a factual finding that is not subject to appeal. Moreover, the Board was tasked with deciding the Application and it did not need to resolve Blockchain’s contractual dispute with NL Hydro to do so. Blockchain has not established any extricable question of law or any question of jurisdiction for this issue nor any reasonable likelihood of success (at para. 32).

The institutional design issue in Jardins de Vérone c. Ville de Québec, 2025 QCCA 123 was somewhat different. Here, the underlying issue related to the valuation of unused serviced property for municipal taxation purposes, in particular how to classify land when a building is under construction. In Quebec, such issues are addressed in the first instance by the Administrative Tribunal of Quebec, hearing the matter de novo. Here, the ATQ had found for the landowner. The City exercised its right of appeal to the provincial court, the Court of Quebec. Per Vavilov, the standard of review of questions of law on a statutory appeal is correctness, so the Court of Quebec applied that standard and set aside the ATQ’s analysis. The landowner sought judicial review in superior court, unsuccessfully, and then appealed to the Quebec Court of Appeal. If you are following so far, good for you, but try to keep your focus.

The Court of Appeal stepped into the shoes of the superior court. The question for it was whether the superior court had correctly applied the reasonableness standard. In this context, that meant asking whether the Court of Quebec had applied the correctness standard reasonably. Do not adjust your set. The superior court had to determine whether the Court of Quebec applied the correctness standard reasonably and then the Court of Appeal had to determine whether the superior court had correctly applied the reasonableness standard (see paras. 58-70). It had not, notably because the Court of Appeal had previously added an additional nuance to the analysis, namely that the Court of Quebec cannot intervene unless the ATQ was irrefutably wrong (Ville de Québec c. Vidéotron ltée, 2022 QCCA 594, at para. 68), a criterion that was not satisfied here (at para. 117). Indeed, the Court of Quebec had unreasonably applied the correctness standard (at para. 118).

This is quite the jurisprudential muddle: the Supreme Court has granted leave to appeal. The issue of multiple levels of appeal and review in Quebec has been around for a while. As Dalphond JA (as he then was) noted in St-Pie (Municipalité de) c. Commission de protection du territoire agricole du Québec, 2009 QCCA 2397:

Premièrement, cette affaire constitue une illustration des dangers associés à la multiplicité des étapes et recours (confection d’une orientation préliminaire par les experts de la CPTAQ à la suite d’une demande de retrait d’un terrain de la zone agricole, consultation publique et décision par la CPTAQ; contestation devant le TAQ;  possibilité d’appel en Cour du Québec, sur permission; révision judiciaire en Cour supérieure du refus de permettre un appel ou du jugement sur l’appel; appel sur permission à notre Cour). Comme le soulignait mon collègue le juge Pelletier dans C.P.T.A.Q. c. Tremblay, 2007 QCCA 1135 (CanLII), [2007] R.J.Q. 2166 (C.A.), au paragr. 17, l’administré ne peut que faire « les frais de cet exercice de torture intellectuelle causé par les méandres d’une mécanique juridique lourde et complexe ». En réalité, cela ne sert bien personne et risque de dénaturer le droit administratif. Si l’objet de la LJA est d’affirmer la spécificité de la justice administrative et d’en assurer la célérité et l’accessibilité (art. 1 LJA), force est de constater que ces objectifs ne sont pas atteints en l’espèce. Un peu d’ordre s’impose (at para. 31).

Of course, imposing order is made somewhat more complex by the co-existence of appeals and judicial reviews. Even if the legislature provided for an appeal on a point of law or jurisdiction from the Court of Quebec to the Court of Appeal, the possibility of judicial review in superior court on the other grounds would remain, unless a privative clause would, combined with a limited right of appeal, shut off access. It will be interesting to see how the Supreme Court approaches this case and whether its analysis will take these broader considerations of institutional design into account.

Now, back to Blockchain.

KJ O’Brien JA granted leave on grounds 1 to 3 but rejected them on the merits. In respect of ground 1, the Corporation could not demonstrate that it had a legitimate expectation of an oral hearing. The Board had not been as clear as it might have been, but its lack of clarity was fatal to the possibility of a legitimate expectation, which requires a clear, unambiguous and unqualified representation”:

Blockchain was an experienced and sophisticated party before the Board. Its participation was comprehensive and meaningful. Blockchain knew from the beginning that there may not be an oral hearing, and it did not ask for one. The Board did not promise or even imply that there would be an oral hearing. The procedural choices the Board made were within its discretion to make (at para. 64).

Grounds 2 and 3 related to the interpretation of the directive from the provincial cabinet, which provided:

Under the authority of section 4.1 of the Public Utilities Act and section 5.2 of the Electrical Power Control Act, 1994, the Lieutenant-Governor in Council hereby exempts Newfoundland and Labrador Hydro from sections 54 and 55 of the Public Utilities Act and section 3 of the Electrical Power Control Act, 1994, and its statutory obligation to supply electrical energy, on a firm basis only, to any applicant that is involved in computing or data processing load related to cryptocurrency mining, such as Bitcoin mining, blockchain processing, proof of work crypto mining, or other cryptographic uses applied to blockchains, subject to the following:

a) if energy and capacity become available that is surplus to Newfoundland and Labrador Hydro’s forecast reliability and resource adequacy requirements and sufficient to provide service to the customers defined above, such customers can be supplied temporary firm service, on the condition that the provision of such service would not require new generation infrastructure in order to maintain system reliability; and

b) the exemption shall not apply to cryptocurrency mining applicants who were approved for and receiving service as a cryptocurrency mining customer at the time of the issuance of this Order in Council, as long as they continue to receive that service, and that any changes to such a customer’s service, including an increase in connected load, would result in the customer being subject to the exemption.

Did either of these exceptions apply? KJ O’Brien JA held that the first exception turned on a question of fact relating to the availability of firm power and, as it was factual in nature, could not be raised on the appeal on a question of law or jurisdiction. She held that the second exception did not apply either. Although the Corporation was “approved for and receiving service” at the time of the directive, it was receiving service under a temporary agreement that was to expire as soon as the Board made its order. Thus, the Board reasoned, its own decision would make “changes to such a customer’s service” and the exemption would no longer apply. To my eye, it is not clear that the directive contemplated that a general change to the availability of firm vs non-firm power would disapply the exemption, as the purpose of the exemption seems to be to lock in existing arrangements rather than to permit them to be undone by applying to the Board for an order, but KJ O’Brien JA strongly disagreed:

That is what OC 2022-266 says and that is how the Board interpreted it. The Board found that the amended temporary service agreement expired upon the Board deciding the Application, and that the expiry was a change in Blockchain’s service that would result in the second exception of OC 2022-266 no longer applying to Blockchain. In coming to this conclusion, the Board interpreted the termination clause of the amended temporary service agreement, which stated that the agreement “shall be deemed to end” at the earliest of several dates, one of which was the effective date of the Board’s Order determining the Application (at paras. 76-77).

In both Conifex and Blockchain the cryptocurrency operations were on the losing side but with energy demand skyrocketing as a result of technological developments, similar questions about the interaction between policy directives, statutes and contracts will no doubt regularly recur. It will be interesting to see if, in the future, unsuccessful project proponents use the parallel tracks of appeal and judicial review, raising points of principle and procedural fairness on appeal and issues of substantive reasonableness on judicial review.

This content has been updated on November 7, 2025 at 20:52.