IEA forecasts for energy demand in India, China

Ontario Global Adjustment and ICI balance hydro rates, renewable cost shift, and peak demand. Class A and Class B customers face demand response decisions amid pandemic occupancy uncertainty and volatile GA charges through 2022.

Key Points

A pricing model where GA costs and ICI peak allocation shape Class A/B bills, driven by renewables cost shifts.

✅ Renewable cost shift trims GA; larger Class A savings expected.

✅ Class A peak strategy returns; occupancy uncertainty persists.

✅ Class B faces volatile GA; limited levers beyond efficiency.

Ontario’s large commercial electricity customers can approach the looming annual decision about their billing structure for the 12 months beginning July 1 with the assurance of long-term relief on a portion of their costs, amid changes coming for electricity consumers that could affect planning. That’s to be weighed against uncertainties around energy demand and whether a locked-in cost allocation formula that looked favourable in pre-pandemic times will remain so until June 30, 2022.

“The biggest unknown is we just don’t know when the people are coming back,” Jon Douglas, director of sustainability with Menkes Property Management Services, reflected during a webinar sponsored by the Building Owners and Managers Association (BOMA) of Greater Toronto last week. “The occupancy in our office buildings this fall, and going into the new year, could really impact the outcome of the decision.”

After a year of operational upheaval and more modifications to provincial electricity pricing policies, BOMA Toronto’s regularly scheduled workshop ahead of the June 15 deadline for eligible customers to opt into the Industrial Conservation Initiative (ICI) program had a lot of ground to cover. Notably, beginning in January, all commercial customers have seen a reduction in the global adjustment (GA) component of their monthly hydro bills after the Ontario government shifted costs associated with contracted non-hydroelectric renewable supply to reduce the burden on industrial ratepayers from electricity rates to the general provincial account — a move that trims approximately $258 million per month from the total GA charged to industrial and commercial customers. However, they won’t garner the full benefit of that until 2022 since they’re currently repaying about $333 million in GA costs that were deferred in April, May and June of 2020.

Renewable cost shift pares the global adjustment
For now, Ontario government officials estimate the renewable cost shift equates to a 12 per cent discount relative to 2020 prices, even as typical bills may rise about 2% as fixed pricing ends in some cases. Once last year’s GA deferral is repaid at the end of 2021, they project the average Class A customer participating in the ICI program should realize a 16 per cent saving on the total hydro bill, while Class B customers paying the GA on a volumetric per kilowatt-hour (kWh) basis will see a slightly more moderate 15 per cent decrease.

“This is the biggest change to electricity pricing that’s happened since the introduction of ICI,” Tim Christie, director of electricity policy, economics and system planning for Ontario’s Ministry of Energy, Northern Development and Mines, told online workshop attendees. “The government is funding the out-of-market costs of renewables. It does tail off into the 2030s as those contracts (for wind, solar and biomass generation) expire, but over the next eight-ish years, it’s pretty steady at around just over $3 billion per year.”

Extrapolating from 2020 costs, he pegged average electricity costs at roughly 9.1 cents/kWh for Class A commercial customers and 13.2 cents/kWh for Class B, a point of concern for Ontario manufacturers facing high rates as well. However, energy management specialists suggest actual 2021 numbers haven’t proved that out.

“In commercial buildings, we’re averaging 10 to 12 cents for Class A in 2021, and we’re seeing more than that for about 14, 15 cents for Class B,” reported Scott Rouse, managing partner with the consulting firm, Energy@Work.

GA costs for Class B customers dropped nearly 30 per cent in the first four months of 2021 compared to the last four months of 2020, when they averaged 11.8 cents/kWh. Thus far, though, there have been significant month-to-month fluctuations, with a low of 5.04 cents/kWh in February and a high of 10.9 cents/kWh in April contributing to the four-month average of 8.3 cents/kWh.

“In 2020, system-wide GA very often averaged more than $1 billion per month,” Rouse said. “This February it dropped to $500 million, which was really quite surprising. So it is a very volatile cost.”

Although welcome, the renewable cost shift does alter the payback on energy-saving investments, particularly for demand response mechanisms like energy storage. When combined with pandemic-related uncertainty and a series of policy and program reversals alongside calls to clean up Ontario’s hydro policy in recent years, the industry’s appetite for some more capital-intensive technologies appears to be flagging.

“Volatility puts a pause on some of the innovation,” said Terry Flynn, general manager with BentallGreenOak and chair of BOMA Toronto’s energy committee. “It could be a leading edge, but it might be a bleeding edge that won’t bear any fruit because the way the commodity costs are structured will change.”

“There’s kind of a wait-and-see approach on some of these bigger investments,” Douglas concurred.

Industrial Conservation Initiative underpins commercial class divide
Turning to the ICI, Class A customers — defined as those with average monthly energy demand of at least 1 megawatt (MW) — encountered some unexpected changes to the program rules during 2020. Meanwhile, Class B customers — encompassing the vast share of commercial properties smaller than about 350,000 square feet — confront the persistent reality of electricity cost allocation that offloads the burden from larger players onto them.

Through the ICI, participating Class A customers pay a share of the global adjustment that’s prorated to their energy use during the five hours of the period from May 1 to April 30 when the highest overall system demand is recorded. This gives Class A customers the opportunity to lock in a favourable factor for calculating their share of monthly system-wide global adjustment costs if they can successful project and curtail energy loads during those five hours of peak demand. On the flipside, Class B customers pay the remainder of those system-wide costs, on a straightforward per-kWh basis, once Class A payments have been reconciled.

“Class B has sometimes been regarded as the forgotten middle child of the customer classes in Ontario where all the shifted costs in the system kind of pile up,” acknowledged Mark Olsheski, vice president, energy and environment, with Sussex Strategy Group. “Likewise, there can be big unpredictable and uncontrollable swings in the global adjustment rate from month to month and, outside of pure energy efficiency, there really is precious little opportunity or empowerment for a Class B customer to take actions to lower their bills.”

Nevertheless, COVID-19 presents a few extra hiccups for Class A customers this year. Conventionally, late May is when they receive notification of the cost allocation factor that would be used to determine their GA for the upcoming July 1 to June 30 period. This year, though, all current ICI participants will retain the factor they secured by responding to the five hours of peak demand during the 12 months from May 1, 2019 to April 30, 2020 after the Ontario government placed a temporary halt on the peak demand response aspect of the program last summer. Regardless, eligible ICI participants must formally opt into the program by June 15 or they will be billed as Class B customers.

Peak chasing resumes for summer 2021
Since peak demand hours conventionally occur from June to September, Class A customers will once again be studying forecasts intently and preparing to respond via Peak Perks as the heat wave season sets in. That should help alleviate some of the system stresses that arose last summer — prompting policy-makers to reject lobbying for a continued pause on peak demand response.

“The policy rationale was to allow consumers to focus on their operations when recovering from COVID as opposed to reducing peaks. The other issue was that we did not expect the peaks to be high last summer given COVID shutdowns,” Christie recounted. “But due to some hot weather, more people at home and also the lack of ICI response, we saw peaks we haven’t seen in many, many years come up last summer. So the peak hiatus has ended and this summer we’ll be back to responding to ICI as per normal.”

Among Class A customers, owners/managers of office and retail facilities generally have the most to lose from a billing formula tied to the energy demand of more densely occupied buildings in the summer of 2019. However, they could be much more competitively positioned for 2022-23 if their buildings remain below full occupancy and energy demand stays lower than usual this summer.

“Where we can improve is the IESO (Independent Electricity System Operator) and the LDCs (local distribution companies) need to help customers get their real-time data, especially in light of the phantom demand issue, interpret their bills and their Class A versus B scenarios much more easily and comprehensively,” urged Lee Hodgkinson, vice president, technical services, sustainability and ESG, with Dream Unlimited. “ I look for APIs (application programming interface) and direct data flow from the LDCs to the building owners so that we can access that data really easily.”

Given Class A’s historic advantages, few eligible ICI participants are expected to migrate out to Class B. From a sustainability perspective, there’s perhaps more cause to question how the ICI’s 1-MW threshold encourages strategies to move in the other direction.

“You could jack up demand in some buildings and get them into Class A basically by firing up the chillers on the weekend and then pouring cooling outside to get rid of it,” Douglas noted. “That has nothing to do with climate change strategy or sustainability, but it’s a cost- saving strategy, and, sometimes, when you look at the math, it’s hundreds of thousands of dollars you can save.”

Brian Hewson, vice president, consumer protection and industry performance with the Ontario Energy Board (OEB), confirmed the OEB is currently scrutinizing the discrepancy that leaves Class B as the only consumer group with no flexibility to curtail energy load during higher-priced periods, and will be providing advice to the Ministry of Energy. In the interim, that status does, at least, simplify tactics.

“Just reduce your kWh and it doesn’t matter what time of day because you’re paying that fixed rate for 24 hours a day. So if you can curb your demand at night, you get a big bang for your dollar,” Rouse advised.

“We do talk about rates a lot, but if you’re not using it, you’re not paying for it,” Flynn agreed. “A lot of our focus is still on really to try to reduce the number of kilowatts that we use. That seems to be the best thing to do.”

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China Solar Grid Parity signals unsubsidized industrial and commercial PV, rooftop solar, and feed-in tariff guarantees competing with grid electricity and coal power prices, driven by cost declines, policy reform, and technology advances.

Key Points

Point where PV in China meets or beats grid electricity, enabling unsubsidized industrial and commercial solar.

✅ City-level analysis shows cheaper PV than grid in 344 cities.

✅ 22% can beat coal power prices without subsidies.

✅ Soft-cost, permitting, and finance reforms speed uptake.

Solar power has become cheaper than grid electricity across China, a development that could boost the prospects of industrial and commercial solar, according to a new study.

Projects in every city analysed by the researchers could be built today without subsidy, at lower prices than those supplied by the grid, and around a fifth could also compete with the nation’s coal electricity prices.

They say grid parity – the “tipping point” at which solar generation costs the same as electricity from the grid – represents a key stage in the expansion of renewable energy sources.

While previous studies of nations such as Germany, where solar-plus-storage costs are already undercutting conventional power, and the US have concluded that solar could achieve grid parity by 2020 in most developed countries, some have suggested China would have to wait decades.

However, the new paper published in Nature Energy concludes a combination of technological advances, cost declines and government support has helped make grid parity a reality in Chinese today.

Despite these results, grid parity may not drive a surge in the uptake of solar, a leading analyst tells Carbon Brief.

Competitive pricing

China’s solar industry has rapidly expanded from a small, rural program in the 1990s to the largest in the world, with record 2016 solar growth underscoring the trend. It is both the biggest generator of solar power and the biggest installer of solar panels.

The installed capacity of solar panels in China in 2018 amounted to more than a third of the global total, with the country accounting for half the world’s solar additions that year.

Since 2000, the Chinese government has unveiled over 100 policies supporting the PV industry, and technological progress has helped make solar power less expensive. This has led to the cost of electricity from solar power dropping, as demonstrated in the chart below.

In their paper, Prof Jinyue Yan of Sweden’s Royal Institute of Technology and his colleagues explain that this “stunning” performance has been accelerated by government subsidies, but has also seen China overinvesting in what some describe as a clean energy's dirty secret of “redundant construction and overcapacity”. The authors write:

“Recently, the Chinese government has been trying to lead the PV industry onto a more sustainable and efficient development track by tightening incentive policies with China’s 531 New Policy.”

The researchers say the subsidy cuts under this policy in 2018 were a signal that the government wanted to make the industry less dependent on state support and shift its focus from scale to quality.

This, they say, has “brought the industry to a crossroads”, with discussions taking place in China about when solar electricity generation could achieve grid parity.

In their analysis, Yan and his team examined the prospects for building industrial and commercial solar projects without state support in 344 cities across China, attempting to gauge where or whether grid parity could be achieved.

The team estimated the total lifetime price of solar energy systems in all of these cities, taking into account net costs and profits, including project investments, electricity output and trading prices.

Besides establishing that installations in every city tested could supply cheaper electricity than the grid, they also compared solar to the price of coal-generated power. They found that 22% of the cities could build solar systems capable of producing electricity at cheaper prices than coal.

Embracing solar

Declining costs of solar technology, particularly crystalline silicon modules, mean the trend in China is also playing out around the world, with offshore wind cost declines reinforcing the shift. In May, the International Renewable Energy Agency (IRENA) said that by the beginning of next year, grid parity could become the global norm for the solar industry, and shifting price dynamics in Northern Europe illustrate the market impact.

Kingsmill Bond, an energy strategist at Carbon Tracker, says this is the first in-depth study he has seen looking at city-level solar costs in China, and is encouraged by this indication of solar becoming ever-more competitive, as seen in Germany's recent solar boost during the energy crisis. He tells Carbon Brief:

“The conclusion that industrial and commercial solar is cheaper than grid electricity means that the workshop of the world can embrace solar. Without subsidy and its distorting impacts, and driven by commercial gain.”

On the other hand, Jenny Chase, head of solar analysis at BloombergNEF, says the findings revealed by Yan and his team are “fairly old news” as the competitive price of rooftop solar in China has been known about for at least a year.

She notes that this does not mean there has been a huge accompanying rollout of industrial and commercial solar, and says this is partly because of the long-term thinking required for investment to be seen as worthwhile.

The lifetime of a PV system tends to be around two decades, whereas the average lifespan of a Chinese company is only around eight years, according to Chase. Furthermore, there is an even simpler explanation, as she explains to Carbon Brief:

“There’s also the fact that companies just can’t be bothered a lot of the time – there are roofs all over Europe where solar could probably save money, but people are not jumping to do it.”

According to Chase, a “much more exciting” development came earlier this year, when the Chinese government developed a policy for “subsidy-free solar”.

This involved guaranteeing the current coal-fired power price to solar plants for 20 years, creating what is essentially a low feed-in tariff and leading to what she describes as “a lot of nice, low-risk projects”.

As for the beneficial effects of grid parity, based on how things have played out in countries where it has already been achieved, Chase says it does not necessarily mean a significant uptake of solar power will follow:

“Grid parity solar is never as popular as subsidised solar, and ironically you don’t generally have a rush to build grid parity solar because you may as well wait until next year and get cheaper solar.”

Policy proposals

In their paper, Yan and his team lay out policy changes they think would help provide an economic incentive, in combination with grid parity, to encourage the uptake of solar power systems.

Technology costs may have fallen for smaller solar projects of the type being deployed on the rooftops of businesses, but they note that the so-called “soft costs” – including installation and maintenance – tend to be “very impactful”.

Specifically, they say aspects such as financing, land acquisition and grid accommodation, which make up over half the total cost, could be cut down:

“Labour costs are not significant [in China] because of the relatively low wages of direct labour and related installation overhead. Customer acquisition has largely been achieved in China by the mature market, with customers’ familiarity with PV systems, and with the perception that PV systems are a reliable technology. However, policymakers should consider strengthening the targeted policies on the following soft costs.”

Among the measures they suggest are new financing schemes, an effort to “streamline” the complicated procedures and taxes involved, and more geographically targeted government policies, alongside innovations like peer-to-peer energy sharing that can improve utilization.

As their analysis showed the price of solar electricity had fallen further in some cities than others, the researchers recommend targeting future subsidies at the cities that are performing less well – keeping costs to a minimum while still providing support when it is most needed.

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Ontario Electricity Billing Changes include OEB-backed shifts to time-of-use or tiered pricing, landlord blanket elections, LDC implementation guidance, a customer choice webpage with a bill calculator, and ENDM rate mitigation messaging.

Key Points

They are OEB measures enabling TOU-to-tiered switching, landlord elections, LDC guidance, and ENDM bill messages.

✅ Option to switch from TOU to tiered pricing

✅ Landlord blanket elections on tenant turnover

✅ ENDM-led bill info and rate mitigation messaging

By David Stevens, Aird & Berlis LLP

Electricity consumers in Ontario may see a couple of electricity rate changes in their bills in the coming months.

First, as we have already discussed, as of November 1, 2020, regulated price plan customers will have the option to switch to "tiered pricing" instead of time-of-use (TOU) pricing structures. Those who switch to "tiered pricing" will see changes in their electricity bills.

The Ontario Energy Board (OEB) has now issued final amendments to the Standard Supply Service Code to support the customer election process necessary to switch from TOU pricing to tiered pricing. The main change from what was already published in previous OEB notices is that landlords will be permitted to make a "blanket election" between TOU pricing and tiered pricing that will apply each time a tenant's account reverts back to the landlord on turnover of the rental unit. In its most recent notice, the OEB acknowledges that implementing the new customer billing option as of Nov. 1 (less than two months from now) will be challenging and directs Local Distribution Companies (LDCs) who cannot meet this date to be immediately in touch with the OEB. Finally, the OEB indicates that there will be a dedicated "customer choice webpage for consumers, including a bill calculator" in place by early October.

Second, as of January 1, 2021 low-volume consumers will see additional messaging on their bills to inform them of available rate mitigation programs.

A recent proposal posted on Ontario's Regulatory Registry indicates that the Ministry of Energy, Northern Development and Mines (ENDM) proposes that LDCs and Utility Sub-Meter Providers will be required to include a new on-bill message for low-volume consumers that "will direct customers to ENDM's new web page for further information about how the province provides financial support to electricity consumers." This new requirement is planned to be in place as of January 1, 2021. In conjunction with this requirement, the ENDM plans to launch a new web page that will provide "up-to-date information about electricity bills," including information about rate mitigation programs available to consumers. Parties are invited to submit comments on the ENDM proposal by October 5, 2020.

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IAEA Nuclear Reactor Simulators enable virtual nuclear power plant training on IPWR/PWR systems, load-following operations, baseload dynamics, and turbine coupling, supporting advanced reactor education, flexible grid integration, and low-carbon electricity skills development during remote learning.

Key Points

IAEA Nuclear Reactor Simulators are tools for training on reactor operations, safety, and flexible power management.

✅ Simulates IPWR/PWR systems with real-time parameter visualization.

✅ Practices load-following, baseload, and grid flexibility scenarios.

✅ Supports remote training on safety, controls, and turbine coupling.

Students and professionals in the nuclear field are making use of learning opportunities during lockdown made necessary by the Covid-19 pandemic, drawing on IAEA low-carbon electricity lessons for the future.

Requests to use the International Atomic Energy Agency’s (IAEA’s) basic principle nuclear reactor simulators have risen sharply in recent weeks, IAEA said on 1 May, as India takes steps to get nuclear back on track. New users will have the opportunity to learn more about operating them.

“This suite of nuclear power plant simulators is part of the IAEA education and training programmes on technology development of advanced reactors worldwide. [It] can be accessed upon request by interested parties from around the world,” said Stefano Monti, head of the IAEA’s Nuclear Power Technology Development Section.

Simulators include several features to help users understand fundamental concepts behind the behaviour of nuclear plants and their reactors. They also provide an overview of how various plant systems and components work to power turbines and produce low-carbon electricity, while illustrating roles beyond electricity as well.

In the integral pressurised water reactor (IPWR) simulator, for instance, a type of advanced nuclear power design, users can navigate through several screens, each containing information allowing them to adjust certain variables. One provides a summary of reactor parameters such as primary pressure, flow and temperature. Another view lays out the status of the reactor core.

The “Systems” screen provides a visual overview of how the plant’s main systems, including the reactor and turbines, work together. On the “Controls” screen, users can adjust values which affect reactor performance and power output.

This simulator provides insight into how the IPWR works, and also allows users to see how the changes they make to plant variables alter the plant’s operation. Operators can also perform manoeuvres similar to those that would take place in the course of real plant operations e.g. in load following mode.

“Currently, most nuclear plants operate in ‘baseload’ mode, continually generating electricity at their maximum capacity. However, there is a trend of countries, aligned with green industrial revolution strategies, moving toward hybrid energy systems which incorporate nuclear together with a diverse mix of renewable energy sources. A greater need for flexible operations is emerging, and many advanced power plants offer standard features for load following,” said Gerardo Martinez-Guridi, an IAEA nuclear engineer who specialises in water-cooled reactor technology.

Prospective nuclear engineers need to understand the dynamics of the consequences of reducing a reactor’s power output, for example, especially in the context of next-generation nuclear systems and emerging grids, and simulators can help students visualise these processes, he noted.

“Many reactor variables change when the power output is adjusted, and it is useful to see how this occurs in real-time,” said Chirayu Batra, an IAEA nuclear engineer, who will lead the webinar on 12 May.

“Users will know that the operation is complete once the various parameters have stabilised at their new values.”

Observing and comparing the parameter changes helps users know what to expect during a real power manoeuvre, he added.

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Irving Oil hydrogen electrolyzer expands green hydrogen capacity at the Saint John refinery with Plug Power technology, cutting carbon emissions, enabling clean fuel for buses, and supporting Atlantic Canada decarbonization and renewable grid integration.

Key Points

A 5 MW Plug Power unit at Irving's Saint John refinery producing low-carbon hydrogen via electrolysis.

✅ Produces 2 tonnes/day, enough to fuel about 60 hydrogen buses

✅ Uses grid power; targets cleaner supply via renewables and nuclear

✅ First Canadian refinery investing in electrolyzer technology

Irving Oil is expanding hydrogen capacity at its Saint John, N.B., refinery in a bid to lower carbon emissions and offer clean energy to customers.

The family-owned company said Tuesday it has a deal with New York-based Plug Power Inc. to buy a five-megawatt hydrogen electrolyzer that will produce two tonnes of hydrogen a day — equivalent to fuelling 60 buses with hydrogen — using electricity from the local grid and drawing on examples such as reduced electricity rates proposed in Ontario to grow the hydrogen economy.

Hydrogen is an important part of the refining process as it's used to lower the sulphur content of petroleum products like diesel fuel, but most refineries produce hydrogen using natural gas, which creates carbon dioxide emissions and raises questions explored in hydrogen's future for power companies in the energy sector.

"Investing in a hydrogen electrolyzer allows us to produce hydrogen in a very different way," Irving director of energy transition Andy Carson said in an interview.

"Instead of using natural gas, we're actually using water molecules and electricity through the electrolysis process to produce ... a clean hydrogen."

Irving plans to continue to work with others in the province to decarbonize the grid amid pressures like Ontario's push into energy storage as electricity supply tightens and ensure the electricity being used to power its hydrogen electrolyzer is as clean as possible, he said.

N.B. Power's electrical system includes 14 generating stations powered by hydro, coal, oil, wind, nuclear and diesel. The utility has committed to increasing its renewable energy sources and exploring innovations such as EV-to-grid integration piloted in Nova Scotia.

Irving said it will be the first oil refinery in Canada to invest in electrolyzer technology, as Ontario's Hydrogen Innovation Fund supports broader deployment nationwide.

The company said its goal is to offer hydrogen fuelling infrastructure in Atlantic Canada, complementing N.L.'s fast-charging network for EV drivers in the region.

"This kind of investment allows us to not just move to a cleaner form of hydrogen in the refinery. It also allows us to store and make hydrogen available to the marketplace," Carson said.

Federal watchdog warns Canada's 2030 emissions target may not be achievable
The hydrogen technology will help Irving "unlock pent up demand for hydrogen as an energy transition fuel for logistics organizations," he said.

Alberta also aims to expand its hydrogen production over the coming years, alongside British Columbia's $900 million hydrogen project moving ahead on the West Coast. 

Those plans lean on the development of carbon capture and storage (CCS) technology that aims to trap the emissions created when producing hydrogen from natural gas.

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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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