Price is the sticking point for EVs

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The electrification of the automobile has been called the auto industry’s “moon shot,” an analogy that works because of both the technology involved and the cost to develop it.

Automakers are pouring hundreds of millions of dollars into the effort with no promise that it will lead to affordable battery-powered vehicles anytime soon — or any guarantee people will buy them once they’re available.

All of the major automakers are racing to put EVs in showrooms as early as next year, and theyÂ’re spending money like sailors on shore leave to do it. General Motors has spent about $1 billion developing the Chevrolet Volt. Chrysler wants to invest $448 million in its electric vehicle program to build cars like the Circuit. Elon MuskÂ’s personal investment in Tesla Motors tops $75 million.

The Apollo program cost more than $100 billion in todayÂ’s dollars, and as Ron Cogan, founder and editor of Green Car Journal and greencar.com notes, there was no imperative to produce a reasonably priced consumer product. Not so with electric vehicles - the whole point is to sell cars.

The Obama Administration is betting heavily on the technology, having recently approved almost $8 billion to help automakers retool factories to produce EVs and other fuel-efficient vehicles. Another $16 billion will be doled out next year.

“What people overlook is that accomplishing ‘big picture’ programs like Apollo require accepting the concept of unlimited spending to achieve the mission,” Cogan says. “Current levels of unprecedented federal spending notwithstanding, electric cars are not an exclusive answer to future transportation challenges and consumers will not be willing to buy them at all costs.” Cogan is not some EV-naysayer wedded to internal combustion. He’s been covering EVs and alt-fuel vehicles since 1992 through his award-winning magazine Green Car Journal.

He spent a year living with the pioneering General Motors EV1 electric car, and youÂ’d be hard-pressed to find an alt-fuel car he hasnÂ’t driven. But despite their promise of eco-friendlier mobility, battery-powered vehicles remain cost-prohibitive and will for some time to come, he says.

“There’s a shroud of denial that regularly excludes the real cost of battery electric vehicles from discussion of their considerable benefits,” he says. “I understand first-hand the advantages of an electric car with its high-efficiency, zero localized emissions and petroleum free operation. But I also recognize the importance of an affordable cost so most people can buy them, and that’s a crucial issue that’s rarely, if ever, discussed. People should be asking why.”

Cogan says it isnÂ’t the cars to blame. Several automakers proved in the 1990s that it was possible to build a full-fledged electric vehicle with the amenities and comfort consumers expect, and the relatively few people who drove the EV1, the Toyota RAV-EV and Honda EV Plus generally raved about them. There are even some RAV-EVs on the road today.

What the automakers couldnÂ’t do, Cogan notes, is develop a battery pack that costs less than $20,000 to $30,000. ThatÂ’s still the case today, which is why the electric vehicles in the pipeline have price tags approaching $50,000.

General Motors is frantically trying to bring the Volt in for less than $40,000 when it goes into production late next year, and even then expects to lose its shirt. The Mitsubishi iMiEV city car is as small as its $50,000 price tag is large. And even the Coda, a four-door, five-passenger family car with all the pizzazz of a Hyundai Sonata, will set you back $45,000 when it goes on sale in California next year.

Early adopters and hardcore EV advocates will gladly pay that much, but will the rest of us pay $15,000 to $25,000 more for a car that runs on electricity? Cogan doesn’t think so and says EVs should be considered mid- to long-term solutions until automakers — and the battery makers they rely upon — can bring costs down to a level competitive with vehicles propelled by internal combustion.

Until then, he says, more efficient gasoline cars, clean diesel vehicles and hybrids will comprise the majority of cars sold even as EVs become an increasingly common sight in showrooms.

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New Hydro One CEO aims to repair relationship with Ontario government — and investors

Hydro One CEO Mark Poweska aims to rebuild ties with Ontario's provincial government, investors, and communities, stabilize the executive team, boost earnings and dividends, and reset strategy after the scrapped Avista deal and regulatory setbacks.

 

Key Points

He plans to mend government and investor relations, rebuild the C-suite, and refocus growth after the failed Avista bid.

✅ Rebuild ties with Ontario government and regulators

✅ Stabilize executive team and governance

✅ Refocus growth after Avista deal termination

 

The incoming chief executive officer of Hydro One Ltd. said Thursday that he aims to rebuild the relationship between the Ontario electrical utility and the provincial government, as seen in COVID-19 support initiatives, as well as ties between the company and its investors.

Mark Poweska, the former executive vice-president of operations at BC Hydro, was announced as Hydro One’s new president and CEO in March. His hiring followed a turbulent period for Toronto-based Hydro One, Ontario’s biggest distributor and transmitter of electricity, with large-scale storm restoration efforts underscoring its role.

Hydro One’s former CEO and board of directors departed last year under pressure from a new Ontario government, the utility’s biggest shareholder. Earlier this year, the company’s plan for a $6.7-billion takeover fell apart over concerns of political interference and the utility clashed with the new provincial government and Progressive Conservative Premier Doug Ford over executive compensation levels, amid rate policy debates such as no peak rate cuts for self-isolating customers.

Hydro One facing $885 million charge as regulator upholds tax decision forcing it to share savings with customers

Shares of Hydro One were up more than eight per cent year-to-date on Wednesday, closing at $21.74. However, the stock price was up only six per cent from Hydro One’s 2015 initial public offering price, something its incoming CEO seems set on changing.

“One of my first priorities will be to solidify the executive team and build relationships with the Government of Ontario, our customers, informed by customer flexibility research, and communities, indigenous leaders, investors, and our partners across the electricity sector,” Poweska said Thursday on a conference call outlining Hydro One’s first-quarter results. “At the same time, I will be working to earn the trust and confidence of the investment community.”

Hydro One reported a profit of $171 million for the three months ended March 31, while peers such as Hydro-Québec reported pandemic-related losses as the sector adapted. Net income for the first quarter was down from $222 million a year earlier, which was due to $140 million in costs related to the scrapping of Hydro One’s proposed acquisition of U.S. energy company Avista Corp.

Hydro One Ltd. appointed Mark Poweska as President and CEO.

In January, Hydro One said the proposed takeover of Spokane, Wash.-headquartered Avista, an approximately $6.7-billion deal announced in July 2017, was being called off. As a result, Hydro One said it would pay Avista a US$103 million break fee.

Revenues net of purchased power for the first quarter rose to $952 million, up by 15.4 per cent compared to last year, Hydro One said, helped by higher distribution revenues. Adjusted profit for the quarter, which removes the Avista-related costs, was $311 million, up from $210 million a year ago.

The company is hiking its quarterly dividend to 24.15 cents per share, up five per cent from the last increase in May 2018, while also launching a pandemic relief fund for customers.

Poweska is taking over for acting president and CEO Paul Dobson this month, and the new executive will be charged with revamping Hydro One’s C-suite.

The company’s chief operating officer, chief legal officer, and chief corporate development officer have all departed this year. The company’s chief human resource officer has retired as well, although Poweska did announce Thursday that he had appointed acting chief financial officer Chris Lopez as CFO.

“Hydro One’s significant bench strength and management depth will ensure stability and continuity during this period of transition, as the sector pursues Hydro-Québec energy transition as well,” the company said in its first-quarter earnings press release.

Ontario remains Hydro One’s biggest shareholder, owning approximately 47 per cent of the company.

 

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Warning: Manitoba Hydro can't service new 'energy intensive' customers

Manitoba Hydro capacity constraints challenge clean energy growth as industrial demand, hydrogen projects, EV batteries, and electrification strain the grid; limited surplus, renewables, storage, and transmission bottlenecks hinder new high-load connections.

 

Key Points

Limited surplus power blocks new energy-intensive loads until added generation and transmission expand Manitoba's grid.

✅ No firm commitments for new energy-intensive industrial customers

✅ Single large load could consume remaining surplus capacity

✅ New renewables need transmission; gas, nuclear face trade-offs

 

Manitoba Hydro lacks the capacity to provide electricity to any new "energy intensive" industrial customers, the Crown corporation warns in a confidential briefing note that undercuts the idea this province can lure large businesses with an ample supply of clean, green energy, as the need for new power generation looms for the utility.

On July 28, provincial economic development officials unveiled an "energy roadmap" that said Manitoba Hydro must double or triple its generating capacity, as electrical demand could double over the next two decades in order to meet industrial and consumer demand for electricity produced without burning fossil fuels.

Those officials said 18 potential new customers with high energy needs were looking at setting up operations in Manitoba — and warned the province must be careful to choose businesses that provide the greatest economic benefit as well as the lowest environmental impact.

In a briefing note dated Sept. 13, obtained by CBC News, Manitoba Hydro warns it doesn't have enough excess power to hook up any of these new heavy electricity-using customers to the provincial power grid.

There are actually 57 proposals to use large volumes of electricity, Hydro says in the note, including eight projects already in the detailed study phase and nine where the proponents are working on construction agreements.

"Manitoba Hydro is unable to offer firm commitments to prospective customers that may align with Manitoba's energy roadmap and/or provincial economic development objectives," Hydro warns in the note, explaining it is legally obliged to serve all existing customers who need more electricity.

"As such, Manitoba Hydro cannot reserve electric supply for particular projects."

Hydro says in the note its "near-term surplus electricity supply" is so limited amid a Western Canada drought that "a single energy-intensive connection may consume all remaining electrical capacity."

Adding more electrical generating capacity won't be easy, even with new turbine investments underway, and will not happen in time to meet demands from customers looking to set up shop in the province, Hydro warns.

The Crown corporation goes on to say it's grappling with numerous requests from existing and prospective energy-intensive customers, mainly for producing hydrogen, manufacturing electric vehicle batteries and switching from fossil fuels to electricity, such as to use electricity for heat in buildings.

In a statement, Hydro said it wants to ensure Manitobans know the corporation is not running out of power — just the ability to meet the needs of large new customers, and continues to provide clean energy to neighboring provinces today.

"The size of loads looking to come to Manitoba are significantly larger than we typically see, and until additional supply is available, that limits our ability to connect them," Hydro spokesperson Bruce Owen said in a statement.

Adding wind power or battery storage, for example, would require the construction of more transmission lines, and deals such as SaskPower's purchase depend on that interprovincial infrastructure as well.

Natural gas plants are relatively inexpensive to build but do not align with efforts to reduce carbon emissions. Nuclear power plants require at least a decade of lead time to build, and tend to generate local opposition.

Hydro has also ruled out building another hydroelectric dam on the Nelson River, where the Conawapa project was put on hold in 2014.

 

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Sycamore Energy taking Manitoba Hydro to court, alleging it 'badly mismanaged' Solar Energy Program

Sycamore Energy Manitoba Hydro Lawsuit centers on alleged mismanagement of the solar rebate incentive program, project delays, inspection backlogs, and alleged customer interference, impacting renewable energy installations, contractors, and clean power investment across Manitoba.

 

Key Points

Claim alleging mismanagement of Manitoba's solar rebate, delays, and inducing customers to switch installers.

✅ Lawsuit alleges mismanaged solar rebate incentive program

✅ Delays in inspections left hundreds of projects incomplete

✅ Claims Hydro urged customers to switch installers for rebates

 

Sycamore Energy filed a statement of claim Monday in Manitoba Court of Queens Bench against Manitoba Hydro saying it badly mismanaged its Solar Energy Program, a dispute that comes as Canada's solar progress faces criticism nationwide.

The claim also noted the crown corporation caused significant financial and reputational damage to Sycamore Energy, echoing disputes like Ontario wind cancellation costs seen elsewhere.

The statement of claim says Manitoba Hydro was telling customers to find other companies to complete solar panel installations, even as Nova Scotia's solar charge debate has unfolded.

'I'm still waiting': dozens of Manitoba solar system installations in the queue under expired incentive program
This all comes after a pilot project was launched in the province in April 2016, which would allow people to apply for a rebate under the incentive program, while Saskatchewan adjusted solar credits in parallel, and the project would cover about 25 per cent of the installation costs.

The project ended in April 2018, but hundreds of approved projects had yet to be finished.

According to Manitoba Hydro, in November there were 252 approved projects awaiting completion by more than one contractor, and Sycamore Energy said it had about 100 of those projects, a dynamic seen as New England's solar growth strains grid upgrades in other regions.

At the time Sycamore Energy COO, Alex Stuart, blamed Manitoba Hydro for the delays, stating it took too long to get inspections after solar systems were installed.

Scott Powell, Manitoba Hydro’s director of corporate communications, said in November he disagreed with Sycamore Energy’s comments, even as Ontario moves to reintroduce renewables elsewhere.

In a news release, the company said it sold more installations under Manitoba Hydro’s Solar Energy Program compared to other companies and it was instrumental in helping set up standards for the program.

“Manitoba Hydro mismanaged the solar rebate program from the beginning. In the end, they targeted our company unfairly and unlawfully by inducing our customers to break their contracts with us. Manitoba Hydro told our customers they could get an extension to their rebate but only if they switched to different installers,” said Justin Phillips, CEO of Sycamore Energy in a news release.

“We would much rather be installing clean, effective solar power projects for our customers right now. The last thing we want to do is to be suing Manitoba Hydro, but we feel we have no choice. Their actions have cost us millions in lost business. They’ve also cost the province jobs, millions in private investment and a positive way forward to help combat climate change.”

Manitoba Hydro now has 20 days to respond to the action, and a recent Cornwall wind-farm ruling underscores the stakes.

When asked for a response from CTV News, a spokesperson for the Crown corporation said it hadn’t yet been made aware of the suit.

“If a statement of claim is filed and served, we’ll file a statement of defence in due course. As this matter is now apparently before the courts, we have no further comment,” the spokesperson said.

None of these allegations have been proven in court.

 

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Utility giant Electricite de France acquired 50pc stake in Irish offshore wind farm

Codling Bank Offshore Wind Project will deliver a 1.1 GW offshore wind farm off the Wicklow coast, as EDF Renewables and Fred Olsen Renewables invest billions to support Ireland's CAP 2030 and cut carbon emissions.

 

Key Points

A 1.1 GW offshore wind farm off Co Wicklow, led by EDF and Fred Olsen, advancing Ireland's CAP 2030 targets.

✅ Up to 1.1 GW capacity; hundreds of turbines off Co Wicklow

✅ EDF Renewables partners with Fred Olsen Renewables

✅ Investment well over €2bn, supporting 70% electricity by 2030

 

It’s been previously estimated that the entire Codling Bank project, which will eventually see hundreds of wind turbines, such as a huge offshore wind turbine now coming to market, erected about 13km off the Co Wicklow coast, could be worth as much as €100m. The site is set to generate up to 1.1 gigawatts of electricity when it’s eventually operational.

It’s likely to cost well over €2bn to develop, and with new pipelines abroad where Long Island offshore turbine proposals are advancing, scale economies are increasingly relevant.

The other half of the project is owned by Norway’s Fred Olsen Renewables, with tens of millions of euro already reportedly spent on surveys and other works associated with the scheme. Initial development work started in 2003.

Mr Barrett will now continue to focus on his non-Irish renewable projects, at a time when World Bank wind power support is accelerating in developing countries, said Hazel Shore, the company that sold the stake. It added that Johnny Ronan and Conor Ronan, the developer’s brother, will retain an equity interest in the Codling project.

“The Hazel Shore shareholders remain committed to continuing their renewable and forestry businesses,” noted the firm, whose directors include Paddy Teahon, a former secretary of the Department of the Taoiseach and chairman of the National Offshore Wind Association of Ireland.

The French group’s EDF Renewables subsidiary will now partner with the Norwegian firm to develop and build the Codling Bank project, in a sector widely projected to become a $1 trillion business over the coming decades.

EDF pointed out that the acquisition of the Codling Bank stake comes after the government committed to reducing carbon emissions. A Climate Action Plan launched last year will see renewable projects generating 70pc of Ireland’s electricity by 2030, with more than a third of Irish electricity to be green within four years according to recent analysis. Offshore wind is expected to deliver at least 3.5GW of power in support of the objective.

Bruno Bensasson, EDF Group senior executive vice-president of renewable energies and the CEO of EDF Renewables said the French group is “committed to contributing to the Irish government’s renewables goals”.

“This important project clearly strengthens our strong ambition to be a leading global player in the offshore wind industry,” he added. “This is consistent with the CAP 2030 strategy that aims to double EDF’s renewable energy generation by 2030 and increase it to 50GW net.”

Matthieu Hue, the CEO of EDF Renewables UK and Ireland said the firm already has an office in Dublin and is looking for further renewable projects, as New York's biggest offshore wind farm moves ahead, underscoring momentum.

Last November, the ESB teamed up with EDF in Scotland, reflecting how UK offshore wind is powering up, with the Irish utility buying a 50pc stake in the Neart na Gaoithe offshore wind project. The massive wind farm is expected to generate up to 450MW of electricity and will cost about €2.1bn to develop.

EDF said work on that project is “well under way”.

 

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Ontario takes constitutional challenge of its global adjustment electricity fee to Supreme Court

Ontario Global Adjustment Supreme Court Appeal spotlights a constitutional challenge to Ontario's electricity charge, pitting National Steel Car against the IESO over regulatory charge vs tax, procurement policy, and renewable energy feed-in tariff contracts.

 

Key Points

An SCC leave bid on whether Ontario's global adjustment is a valid regulatory charge or an unconstitutional tax.

✅ Appeals Court revived case for full record review

✅ Dispute centers on regulatory charge vs tax classification

✅ FIT renewables contracts and procurement policies at issue

 

The Ontario government wants the Supreme Court of Canada to weigh in on a constitutional challenge being brought against a large provincial electricity charge, a case the province claims raises issues of national importance.

Ontario’s attorney general and its Independent Electricity System Operator applied for permission to appeal to the Supreme Court in January, according to the court’s website.

The province is trying to appeal a Court of Appeal decision reinstating the challenge from November that said a legal challenge by Hamilton, Ont.-based National Steel Car Ltd. should be sent back to a lower-court for a full hearing.

Court reinstates constitutional challenge to Ontario's hefty ‘global adjustment’ electricity charge
National Steel Car appealing decision in legal challenge of Ontario electricity fee it calls an unconstitutional tax
Doug Ford’s cancellation of green energy deals costs Ontario taxpayers $231 million
National Steel Car launched its legal challenge in 2017, with the maker of steel rail cars claiming the province’s global adjustment electricity charge was a tax intended to fund certain post-financial-crisis policy goals. Since it is allegedly a tax, and one not imposed by the provincial legislature, the company’s argument is the global adjustment is unconstitutional, and also in breach of a provincial law requiring a referendum for new taxes.

The global adjustment mostly bridges the gap between the province’s hourly electricity price and the price guaranteed under contracts and regulated rates with power generators. It also helps cover the cost of building new electricity infrastructure and providing conservation programs, but the fee now makes up most of the commodity portion of a household power bill in the province.

Ontario argued the global adjustment is a valid regulatory charge, and moved to have National Steel Car’s challenge thrown out. An Ontario Superior Court judge agreed, and dismissed the challenge in 2018, saying it was “plain, obvious and beyond doubt” it could not succeed. However, an appeals court judge disagreed, writing in a decision last November that the “merits should not have been determined on a pleadings motion and without the development of a full record.”

In filings made to the Supreme Court, both the IESO and Ontario’s Ministry of the Attorney General argued their proposed appeals raise “issues of national and public importance,” such as whether incorporating environmental and social policy goals in procurement could turn attempts by a public body to recover costs into an unconstitutional tax.

Most applications for leave to appeal to the Supreme Court are dismissed, but the Ontario government claims the court’s guidance is required in this case, as it could lead to questions being raised about other fees or charges, such as money raised from fishing licences.

“A failure to dispose of this claim at the pleadings stage may well result in such uncertainty that public authorities across Canada decline to incorporate the kind of environmental and social policy goals objected to in this case into the decisions they make about how to spend funds raised from regulatory charges,” the filing from the attorney general states. “Alternatively, it may induce governments not to engage in cost recovery in connection with publicly supplied goods and services, which can otherwise be sound public policy.”

The government has so far had to pay National Steel Car $250,000 in legal costs “to avoid responding to the credible claim that the Global Adjustment is an unconstitutional tax,” said David Trafford of Morse Shannon LLP, one of National Steel Car’s lawyers.

“The application for leave to appeal is the next step in this effort to avoid having to respond to the case on the merits,” Trafford added in an email.

The application for leave to appeal is the next step in this effort to avoid having to respond to the case on the merits

David Trafford of Morse Shannon, one of National Steel Car’s lawyers
 
National Steel Car has particularly taken issue with the part of the global adjustment that funded contracts for renewable energy under a “feed-in tariff” program, or FIT, which the company called “the main culprit behind the dramatic price increases for electricity.”

The FIT program has been ended, but contracts awarded under it remain in place and form part of the global adjustment. Ontario’s auditor general estimated in 2015 that electricity consumers would pay $9.2 billion more for renewable energy under the government’s guaranteed-price program, a figure that later featured in a dispute between the auditor and the electricity regulator that drew political attention.

National Steel Car said its global adjustment costs grew from $207,260 in 2008 to almost $3.4 million in 2016, reflecting how high electricity rates have pressured manufacturers, to almost $3.4 million in 2016. For 2018, there was approximately $11.2 billion in global adjustment collected, according to the IESO’s reporting.

A spokesperson for the IESO said it “is not in a position to comment” because the case is still before the courts.

Electricity prices have been an ongoing problem for both Ontario consumers and politicians, which the previous Liberal government tried to address in 2017 by, among other things, refinancing global-adjustment costs through the Fair Hydro Plan and other measures.

Since National Steel Car filed its lawsuits, though, the Liberals lost power in the province and were succeeded in 2018 by Premier Doug Ford and the Progressive Conservatives, who made changes to the previous government’s power policies, including legislation to lower electricity rates introduced early in their mandate.

The province has also pursued interprovincial power arrangements, including building on an electricity deal with Quebec as part of its broader energy strategy.

“The present government of Ontario does not agree with the former government’s electricity procurement program, which ceased awarding new contracts in 2016,” Ontario’s attorney general said in a filing. “However, Ontario submits that (the lower-court judge) was correct in holding that it does not give rise to a claim susceptible to being remedied by the courts.”

 

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Court reinstates constitutional challenge to Ontario's hefty ‘global adjustment’ electricity charge

Ontario Global Adjustment Charge faces constitutional scrutiny as a regulatory charge vs tax; Court of Appeal revives case over electricity pricing, feed-in tariff contracts, IESO policy, and hydro rate impacts on consumers and industry.

 

Key Points

A provincial electricity fee funding generator contracts, now central to a court fight over tax versus regulatory charge.

✅ Funds gap between market price and contracted generator rates

✅ At issue: regulatory charge vs tax under constitutional law

✅ Linked to feed-in tariff, IESO policy, and hydro rate hikes

 

Ontario’s court of appeal has decided that a constitutional challenge of a steep provincial electricity charge should get its day in court, overturning a lower-court judgment that had dismissed the legal bid.

Hamilton, Ont.-based National Steel Car Ltd. launched the challenge in 2017, saying Ontario’s so-called global adjustment charge was unconstitutional because it is a tax — not a valid regulatory charge — that was not passed by the legislature.

The global adjustment funds the difference between the province’s hourly electricity price and the price guaranteed under contracts to power generators. It is “the component that covers the cost of building new electricity infrastructure in the province, maintaining existing resources, as well as providing conservation and demand management programs,” the province’s Independent Electricity System Operator says.

However, the global adjustment now makes up most of the commodity portion of a household electricity bill, and its costs have ballooned, as regulators elsewhere consider a proposed 14% rate hike in Nova Scotia.

Ontario’s auditor general said in 2015 that global adjustment fees had increased from $650 million in 2006 to more than $7 billion in 2014. She added that consumers would pay $133 billion in global adjustment fees from 2015 to 2032, after having already paid $37 billion from 2006 to 2014.

National Steel Car, which manufactures steel rail cars and faces high electricity rates that hurt Ontario factories, said its global adjustment costs went from $207,260 in 2008 to almost $3.4 million in 2016, according to an Ontario Court of Appeal decision released on Wednesday.

The company claimed the global adjustment was a tax because one of its components funds electricity procurement contracts under a “feed-in tariff” program, or FIT, which National Steel Car called “the main culprit behind the dramatic price increases for electricity,” the decision said.

Ontario’s auditor general said the FIT program “paid excessive prices to renewable energy generators.” The program has been ended, but contracts awarded under it remain in place.


National Steel Car claimed the FIT program “was actually designed to accomplish social goals unrelated to the generation of electricity,” such as helping rural and indigenous communities, and was therefore a tax trying to help with policy goals.

“The appellant submits that the Policy Goals can be achieved by Ontario in several ways, just not through the electricity pricing formula,” the decision said.

National Steel Car also argued the global adjustment violated a provincial law that requires the government to hold a referendum for new taxes.

“The appellant’s principal claim is that the Global Adjustment was a ‘colourable attempt to disguise a tax as a regulatory charge with the purpose of funding the costs of the Policy Goals,’” the decision said. “The appellant pressed this argument before the motion judge and before this court. The motion judge did not directly or adequately address it.”

The Ontario government applied to have the challenge thrown out for having “no reasonable cause of action,” and a Superior Court judge did so in 2018, saying the global adjustment is not a tax.

National Steel Car appealed the decision, and the decision published Wednesday allowed the appeal, set aside the lower-court judgment, and will send the case back to Superior Court, where it could get a full hearing.

“The appellant’s claim is sufficiently plausible on the evidentiary record it put forward that the applications should not have been dismissed on a pleadings motion before the development of a full record,” wrote Justice Peter D. Lauwers. “It is not plain, obvious and beyond doubt that the Global Adjustment, and particularly the challenged component, is properly characterized as a valid regulatory charge and not as an impermissible tax.”

Jerome Morse of Morse Shannon LLP, one of National Steel Car’s lawyers, said the Ontario government would now have 60 days to decide whether to seek permission to appeal to the Supreme Court of Canada.

“What the court has basically said is, ‘this is a plausible argument, here are the reasons why it’s plausible, there was no answer to this,’” Morse told the Financial Post.

Ontario and the IESO had supported the lower-court decision, but there has been a change in government since the challenge was first launched, with Progressive Conservative Premier Doug Ford replacing the Liberals and Kathleen Wynne in power. The Liberals had launched a plan aimed at addressing hydro costs before losing in a 2018 election, the main thrust of which had been to refinance global adjustment costs.

Wednesday’s decision states that “Ontario’s counsel advised the court that the current Ontario government ‘does not agree with the former government’s electricity procurement policy (since-repealed).’

“The government’s view is that: ‘The solution does not lie with the courts, but instead in the political arena with political actors,’” it adds.

A spokesperson for Ontario Energy Minister Greg Rickford said in an email that they are reviewing the decision but “as this matter is in the appeal period, it would be inappropriate to comment.” 

Ontario had also requested to stay the matter so a regulator, the Ontario Energy Board, could weigh in, while the Nova Scotia regulator approved a 14% hike in a separate case.

“However, Ontario only sought this relief from the motion judge in the alternative, and given the motion judge’s ultimate decision, she did not rule on the stay,” Thursday’s decision said. “It would be premature for this court to rule on the issue, although it seems incongruous for Ontario to argue that the Superior Court is the convenient forum in which to seek to dismiss the applications as meritless, but that it is not the convenient forum for assessing the merits of the applications.”

National Steel Car’s challenge bears a resemblance to the constitutional challenges launched by Ontario and other provinces over the federal government’s carbon tax, but Justice Lauwers wrote “that the federal legislative scheme under consideration in those cases is distinctly different from the legislation at issue in this appeal.”

“Nothing in those decisions impacts this appeal,” the judge added.
 

 

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