Energy Consumer Protection Act, 2010, S.O. 2010, c. 8 - Bill 235

• Jurisdiction: Ontario
• Date: 18 May 2010
• Bill Number: 235

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 235 and does not form part of the law. Bill 235 has been enacted as Chapter 8 of the Statutes of Ontario, 2010.

The Bill enacts the Energy Consumer Protection Act, 2010 and makes consequential amendments to other statutes.

The Energy Consumer Protection Act, 2010 is divided into four Parts. Part I, General, contains a number of definitions that apply throughout the Act and sets out some powers of the Minister of Energy and Infrastructure.

Part II, Electricity Retailing and Gas Marketing, deals with gas marketing and retailing of electricity to consumers. The Part applies to consumers who fall within the definition of “consumer” as set out in section 2 and applies despite any contract, agreement or waiver to the contrary. Consumers may commence a class action or join in a class action arising out of a dispute over a contract to which the Part applies despite a term in the contract that purports to prevent the consumer from commencing or becoming a member of a class action.

The rights set out in Part II are in addition to any other rights of a consumer under any other Act or by operation of law. Any ambiguity that allows for more than one reasonable interpretation of any information that must be disclosed under this Part must be interpreted to the benefit of the consumer.

Disclosure of information under this Part must be clear, comprehensible and prominent and, in addition, must comply with prescribed requirements. Gas marketers and retailers of electricity are prohibited from engaging in unfair practices.

Contracts must conform with certain requirements specified in section 12 of the Act. These include requirements with respect to information and documents that must be provided to the consumer. For a contract to be valid, it must be verified.

A contract is deemed void if specified requirements of the Part are not followed. A contract may only be renewed or extended or amended in accordance with the regulations. There is a cooling-off period, permitting a consumer to cancel a contract within 10 days after receiving a copy of the contract and acknowledging its delivery. In addition, a consumer may cancel a contract if, among other things, the supplier engages in an unfair practice. A consumer may also cancel a contract under such other circumstances as may be prescribed and may cancel a contract without cause, but the consumer must give the prescribed period of notice of cancellation. No cause of action against a consumer arises as the result of a cancellation of a contract under this Part.

If a consumer is given a right to commence an action, the consumer may commence an action in the Superior Court of Justice (of which the Small Claims Court is a part).

The Minister of Energy and Infrastructure may ask the Ontario Energy Board to review this Part three years after it comes into force. If a review is required, the Board shall prepare its report as expeditiously as possible.

Part III deals with suite metering. For the purposes of this Part, a consumer is a person who uses, for their consumption, electricity that the person did not generate. There are requirements dealing with the installation of suite meters. A suite meter is a unit smart meter or unit sub-meter, both of which are installed in a unit of a multi-unit complex and are not connected to a bulk meter.

There are circumstances in which a suite meter may or must be installed. These apply despite a registered declaration under the Condominium Act, 1998. If a suite meter is installed, there are circumstances in which the suite meter provider may or must bill the consumer based on the consumption or use of electricity by the consumer in respect of the unit as measured by the suite meter.

Part IV contains regulation-making powers.

The Bill contains consequential amendments to the Consumer Protection Act, 2002, the Electricity Act, 1998, the Ontario Energy Board Act, 1998 and the Residential Tenancies Act, 2006.

Subsection 2 (4) of the Consumer Protection Act, 2002 is repealed. That section of the Act made the Consumer Protection Act, 2002 applicable to gas marketers and retailers of electricity. Consumer protection with respect to energy consumers is now in the Energy Consumer Protection Act, 2010.

The Bill amends the Electricity Act, 1998. The amendments include the following:

1. Where a distributor or suite meter provider requires security for the payment of charges related to electricity, certain requirements must be met.

2. The section of the Act dealing with the termination of service, section 31, is repealed and remade. It takes into account the changes introduced by Part III of the Energy Consumer Protection Act, 2010 and creates conditions for and exceptions to the power to shut off the distribution of electricity.

3. Additional regulation-making authority is added to section 114 of the Act.

The Bill amends the Ontario Energy Board Act, 1998. These amendments include:

1. The Minister may issue Cabinet approved directives to the Board in relation to retailing of gas and electricity and the Board shall implement the directives. A directive may require the Board to take specified steps to promote fairness, efficiency and transparency in the retail market for gas and for electricity and may require the Board to amend licences issued to gas marketers or retailers of electricity. A directive may also require the Board to amend conditions in licences and may require that the Board take certain steps with respect to verification of a contract required under Part II of the Energy Consumer Protection Act, 2010.

2. Where a gas distributor requires security for the payment of charges related to gas by or on behalf of a consumer or a member of a class of consumers, the gas distributor must meet the prescribed criteria. Changes are made to the provision that deals with stopping the distribution of gas, section 42, that are consistent with those changes made in the Electricity Act, 1998.

3. The section of the Act that empowers the Board to make rules, section 44, is amended to permit the Board to make rules governing the conduct of a gas distributor as it relates to, among other things, stopping the distribution of gas and governing the manner and circumstances in which security is to be provided.

4. Unit smart meter providers and unit sub-meter providers are prohibited from charging for unit smart metering or unit sub-metering, as the case may be, except in accordance with an order of the Board, which is not bound by the terms of any contract.

5. The current Part V.1, Energy Consumers’ Bill of Rights, is repealed and replaced with a new Part V.1, Gas Marketers and Retailers of Electricity — Standards and Audits. The Part contains a provision permitting or requiring that prescribed conditions be contained in a licence issued under Part IV or V. When required by a regulation to do so, the Board shall license certain employees in accordance with the prescribed conditions, criteria or requirements. The Board may also appoint a person who meets the prescribed criteria to audit the compliance of a gas marketer or retailer of electricity or its agents or employees with the requirements of any condition of a licence.

6. Part VII.0.1, Investigators and Investigations, is added to the Act. The chair of the Board may appoint persons to act as investigators and, in certain circumstances, an investigator may apply to a justice of the peace for a search warrant where the investigator reasonably believes that a person has contravened or is contravening an enforceable provision. An enforceable provision includes a provision of the Act or the regulations, as well as certain provisions of the Energy Consumer Protection Act, 2010 and the Electricity Act, 1998.

7. Part VII.2, Compliance re Part II of the Energy Consumer Protection Act, 2010, is added to the Act. The Part empowers the Board to apply to the Superior Court for the issuance of a freeze order in certain circumstances in respect of certain assets. The Board may also make an order requiring immediate compliance with an enforceable provision and, subject to certain limitations, the order takes effect immediately. A person may give the Board a written assurance of voluntary compliance in certain circumstances.

8. If a retailer of electricity or a gas marketer or a director or officer of a corporation that is a retailer of electricity or a gas marketer is convicted of an offence, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution. If a fine against such a person is in default for at least 60 days, the Board may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default and may, by order, create a lien against the property of the person who is liable to pay the fine.

Part VIII of the Residential Tenancies Act, 2006 is repealed and replaced. Section 137 of the Part deals with suite meters. Its features include the following:

1. If a meter or a suite meter is installed, a landlord who has the obligation to supply electricity to a rental unit may terminate that obligation, with the consent of the tenant, by giving the tenant adequate notice and reducing the rent in accordance with rules prescribed by regulation.

2. If a suite meter is installed in respect of a rental unit and the prospective tenant will be responsible for the payment for the supply of electricity, the landlord must provide that tenant with information related to electricity consumption in the rental unit and must comply with obligations related to electricity conservation and efficiency that may be prescribed by regulation.

3. A capital expenditure made after a meter or suite meter was installed may not be relied on by the landlord in an application for permission to...