Access to Energy. How Form Overtook Substance and Disempowered the Poor in Nova Scotia

• Author: Claire McNeil and Vincent Calderhead
• Profession: Staff Lawyer, Dalhousie Legal Aid Services/Senior Staff Counsel, Nova Scotia Legal Aid
• Pages: 253-280

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chapter 8

ACCESS TO ENERGY

HOW FORM OVERTOOK SUBSTANCE

AND DISEMPOWERED THE POOR

IN NOVA SCOTIA

claire Mcneil* and Vincent calderhead†

A. INTRODUCTION

Just and equal access to energ y has many dimensions — from an u nderlying

regulatory principle to a fundamental component of the right to housing

under international human rights law.1 There is widespread consensus that

access to energy is an essentia l need in today’s society. Yet, in the real world,

disadvantaged commun ities are disproportionately denied such access.

Unfortunately, rather than recognizing and addressing this reality,

the Canadian judiciary, when given the opportunity, has simply legitim-

ated it. More specif‌ically, through the triumph of formal over substantive

equality, the case of Af‌fordable Energy Coalition (Re)(Boulter)2 has reinforced

* Claire McNei l, Staf‌f Lawyer, Dalhou sie Legal Aid Ser vices.

† Vince Ca lderhead, Senior Staf‌f C ounsel, Nova Scotia Le gal Aid.

1 The UN Commit tee on Economic, Social a nd Cultural Right s has stated that t he right

to adequate housi ng under art 11 of the Internat ional Covenant on Economic, Social and

Cultural Rights, 16 D ecember 1966, 993 UNTS 3 , includes “energy for cooking, hea ting

and lighting.” See Ge neral Comment 4: The Right to Adequate Housi ng (Art 11(1) of the

Covenant), UNCESCROR E/1992/23, (1991) at pa ra 8(b).

2 Lit igation to defend the equal ity interests of the poor in a ccessing electricit y in Nova

Scotia initi ally took the form of a convention al statutory inter pretation challen ge

before the Nova Scotia Ut ilities and Review Bo ard (NSUARB) and ulti mately the

Nova Scotia Cour t of Appeal. When tha t proved futile, low-income electr icity

consumers looked to t he Canadian Charter of Rights and Freedoms (see below note 3) to

vindicate t heir claim to equal a ccess to regulated elect ricity. For clarity, the st atutory

interpretat ion cases are Nova Scotia Power Inc (Re), 2005 NS UARB 27 [DLAS NSUARB],

254► claire mcneil and vincent c alderhead

and perpetuated this version of systemic discrimination against the poor

in Nova Scotia.

Anti-poverty litigation under section 15 of the Canadian Charter of Rights

and Freedoms3 has sought to ensure that governments do not discriminate

against protected groups by denying them equal access to programs and

benef‌its provided to others. Legal advocacy around this important princi-

ple has been built on the foundation put in place by the Supreme Court

of Canada over twenty years ago, when the Court rejected the view that

“where a government confers a benef‌it it is entitled to attach whatever con-

ditions it pleases to the receipt of the benef‌it.”

4 Social justice–based e quality

rights litigation has focused primarily on direct benef‌its conferred by gov-

ernments, through transfer payments or social programs, and has mainly

targeted the income side of the household account book, seeking to ensu re

that government income and benef‌it programs a re distributed without dis-

crimination against disadvantaged groups.5 As we outline in this chapter,

litigation in the Boulter6 case took a new approach, shif ting the focus from

household income levels to the household expenditure side of the ledger.

Under examination in Boulter wa s how the provincial government had ,

or had not, acted to protect low-income households in their purchase of

electricity from monopolistic utilities. Rather than applying concepts of

substantive equality to government’s obligations to provide direct income

benef‌its through social programs, the concept of substantive equality was

applied to the government’s duty to ensure that disadva ntaged groups had

equal f‌inanc ial access to utilities through appropriate regulat ion of private

actors.7 The focus in Boulter shifted from income to expenses and from

and, on appeal , Dalhousie Legal Aid ServicevNova Scotia Power Inc 2006 NSC A 74

[DLAS NSCA]. The s ubsequent Charter litigation produced t he following cases:

Af‌fordable Energy Coalition ( Re), 2008 NSUARB 11 (the name which the c ase bore at the

tribunal level) [Boulter NSUARB], and, as upheld by the Nova Scot ia Court of Appeal,

Boulter vNova Scotia Power Inc, 2009 NSCA 1 7 [Boulter NSCA]. Unless the context

specif‌ies othe rwise, references to Boulter refer to t he Charter litigation car ried out

before the NSUARB a nd, on appeal, the NSCA .

3 Part I of the Constit ution Act, 1982, being Schedu le B to the Canada Act 1982 (UK), 1982,

c 11, s 15 [Charter].

4 P rofessional Public Servi ce of Canadav Northwest Territories (Commissioner), [1990] 2

SCR 367 at para 90, S opinka J.

5 Se e Claire Mummé, “At the Crossroad s in Discrimi nation Law: How the Huma n

Rights Codes O vertook the Charter in Can adian Government S ervices Cases” (2012) 9

JL & Equalit y 103.

6 See above note 2.

7 See the d iscussion in Sect ion C, below in this chapter.