Constitutionality Of Assessments For Energy Conservation And Renewable Energy Programs Upheld

On December 8, 2011 the Ontario Energy Board dismissed a motion by the Consumers Council of Canada (CCC) challenging the constitutionality of the Board's assessments to recover costs in respect of energy conservation or renewable energy programs.

The assessment is made under the Ontario Energy Board Act, 1998, to recover costs associated with the Home Energy Savings Program and the Ontario Solar Thermal heating Initiative. It is imposed on licensed electricity distributors and the Independent Electricity System Operator (IESO). In turn, distributors and the IESO pass the assessment onto their customers.

In its motion, CCC argued that the assessment was an indirect tax, and therefore outside of the constitutional powers of the provincial government. Under the Constitution Act, 1867, Canada's provinces do not have the jurisdiction to enact or authorize the imposition of indirect taxes.