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

AuthorClaire McNeil and Vincent Calderhead
ProfessionStaff Lawyer, Dalhousie Legal Aid Services/Senior Staff Counsel, Nova Scotia Legal Aid
chapter 8
claire Mcneil* and Vincent calderhead
Just and equal access to energ y has many dimensions — from an u nderlying
regulatory pri nciple 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 recogn izing and addressing th is reality,
the Canadia n judiciary, when given the opportunity, has simply legitim-
ated it. More speci f‌ically, through the triumph of forma l 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
Covena nt), 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 th is version of systemic discrim ination against t he 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 discrim inate
against protected groups by denying t hem equal access to programs a nd
benef‌its provided to others. Legal advocac y around this import ant princi-
ple has been built on the foundation put in place by the Supreme Court
of Canada over twenty years a go, 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 focu sed primari ly on direct benef‌its conferred by gov-
ernments, through tr ansfer payments or social programs, and has ma inly
targeted the income side of the household account book, seeking to ensu re
that government income and benef‌it programs a re distributed without dis-
criminat ion against disadva ntaged groups.5 As we outline in thi s 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 uti lities. Rather tha n applying concepts of
substantive equal ity to government’s obligations to provide direct income
benef‌its through social programs, the concept of substantive equa lity 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 B oulter shifted from income to expenses and from
and, on appeal , Dalhousie Legal Aid Service v Nova 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 v Nova 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 Canada v 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.

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