Canada: Prospects Of Negative Governmental Action In Ontario’s Energy Sector

Last Updated: August 27 2014
Article by James J. Shanks

When investments are made in the private sector sophisticated financial models are developed, complete with multiple inputs, all designed to predict a range of best and worst case scenarios. If a significant model input strays beyond its originally anticipated value range for example, if customer demand for a business's products collapses then the financial model for the business may fail. If so, stakeholders in the business will likely face a restructuring of their investments. 

The chances of a restructuring are far less likely when government is the main customer of the business, not only because governments are presumed to have deep pockets, but also because, in those businesses where government acts as an intermediary between the business and the ultimate consumers of the business's products, the government's intermediation tends to insulate the business from model failure and its usual consequences. Nevertheless, if model failure is severe and persistent enough, history in Canada suggests that governments may be tempted to impose a restructuring even on these sorts of businesses. 

In the years leading up to Ontario's Feed-in-Tariff (FIT) program, it was generally accepted that Ontario was approaching a near-term shortage of electricity as surging demand threatened massive brownouts.  Government financial models, no doubt, assumed that the cost of developing renewable energy infrastructure involving long-term power purchases at prices significantly above market could be recouped by steadily increasing electricity rates over time, all without unduly reducing customer demand. However, subsequent experience seems to suggest that Ontario's electricity demand may have been more elastic than anticipated, especially as many urban and rural electricity consumers have reacted to increasing prices by switching some of their electricity needs to lower-priced natural gas and propane. Moreover, as price increases in the Province have outpaced those in neighbouring jurisdictions (leaving Ontario's electricity prices 30-60% higher than in those jurisdictions), some large commercial users have reacted by moving their operations out of Ontario, further depressing overall demand.2  In fact, far from remaining steady, electricity demand in the Province is now projected to decline until at least 2021.3

Even as electricity demand has declined, Ontario's generating capacity has increased.  Overall generating capacity in Ontario has increased by 13% since 2003, while demand has decreased by 10% since 2005.4 The end result has been a large and continuing surplus of generating capacity, with Ontario's generating capacity expected to exceed forecast (normal weather peak) demand this summer by 25-50%.5  Partly as a consequence, electricity spot prices in the Province have plummeted, sometimes falling to $0.025/kWh.6  Higher-priced, surplus Ontario electricity is sometimes resold to neighbouring jurisdictions at a substantial discount7 and the Global Adjustment amount charged to Ontario consumers has now risen to record levels.8

In summation, some of the model inputs in the Province's original financial models may already have strayed beyond their initially anticipated value ranges, suggesting at least the possibility that model failure has occurred in the sector or that it may be imminent.  If so, then recent entrants into Ontario's energy sector, otherwise dependent on the continuance of long-term government purchases, are quite right to be concerned about the possibility of a government-imposed restructuring in their sector.

Unlike private sector restructurings which typically involve a court process, government-imposed restructurings generally take the form of confiscatory legislation or some other form of negative governmental action.  It should come as no surprise that governments in Canada have from time to time engaged in various sorts of negative governmental action, invariably with the intent of modifying (or even abrogating altogether) undesirable government obligations.  Such action has even occurred previously in Ontario's utility sector.9 For example, in the 1930's, successive Ontario governments enacted several pieces of legislation abrogating various contractual commitments to private sector power producers, all with the intent of assisting the then-fledgling, and government-owned Ontario Hydro to become the dominant power producer and distributor in the Province.  Indeed, overall, scholarly research suggests that negative governmental action usually occurs (if it occurs at all): (a) when technological change in a given industry sector is occurring rapidly, (b) when pricing, demand or other important financial variables cannot be perfectly forecast, and (c) when governments have entered into long-term contracts that cannot easily be altered.10In other words, the restructuring risk increases on model failure occurring within this context.

Negative governmental action can take many forms, including specifically, the passage of legislation modifying government payables, authorizing or curing contract breaches, limiting court access, amending or cancelling contract commitments, and even expropriating completed projects. A recent, well publicized, example of negative governmental action in Canada occurred in the early 1990s when the federal government summarily cancelled several long-term contracts with private sector participants for the redevelopment of Toronto's Pearson Airport.11 Bill C-22, passed by the House of Commons provided that: (a) all contracts relating to the redevelopment were declared not to have come into existence or to have had any legal effect, (b) all obligations, rights and interests arising out of the contracts were declared not to have come into existence, (c) no action or proceeding, including for damages for breach of contract, could be brought against the government, and (d) every action against the federal government was summarily dismissed.  Bill C-22 also authorized the relevant federal Minister, for a period of 30 days, to enter into agreements with aggrieved stakeholders to pay compensation in such amounts as the Minister considered appropriate.  Notably, compensation for lost profits was expressly prohibited under the legislation. 

Using Bill C-22 as an example, it may appear at first blush that governments in Canada hold all the cards when it comes to negative governmental action. However, stakeholders should note that there are various countervailing influences that will moderate the actual exercise of such extraordinary power. For example, government will be mindful of reputational concerns.12 Specifically, international credit rating agencies may react to negative governmental action by downgrading the subject government's public debt due to increased "country risk", thereby increasing future borrowing costs for the subject government. Foreign governments may impose "tit-for-tat" sanctions on projects in their jurisdictions that are intended to hurt nationals of the expropriating state. Judgments rendered by sympathetic foreign courts may be executable against the subject government's assets located in foreign jurisdictions. And finally, equity investors in non-related sectors may avoid investment in the jurisdiction altogether for fear of falling victim to similar governmental action.

Aside from reputational concerns, some jurisdictions offer constitutional safeguards against negative governmental action without due process. The Fifth and Fourteenth Amendments to the US Constitution are good examples.  Unfortunately, no such constitutional protection currently exists in Canada.13 Specifically, Canada's Charter of Rights and Freedoms contains no express provision for the protection of property, economic, or even contract rights.14 And based on a string of Charter cases decided by the Supreme Court of Canada, it is unlikely that any general protection of this nature will be implied any time soon.15 Instead, stakeholders in Canada will have to derive comfort from the fact that Canadian courts will generally construe confiscatory legislation very strictly against the subject government, straining if at all possible to find that the legislation does not exclude the payment of appropriate levels of compensation or review by the judiciary. Nevertheless, if the legislation is sufficiently precise, even a strict constructionist approach will be of little use to an aggrieved stakeholder.

In such circumstances, Canada's free trade agreements may assist, but only if the stakeholder is a national of a treaty-protected country. As is well known, Canada is a signatory to a number of free-trade and foreign investment protection agreements, some of which prohibit confiscatory action without payment of appropriate compensation.  For example, under Article 1110 of the North American Free Trade Agreement (NAFTA), no federal or provincial government is permitted to "nationalize or expropriate an investment of a [US or Mexican] investor...or take a measure tantamount to nationalization or expropriation", unless such action is: (a) for a public purpose, (b) effected on a non-discriminatory basis, (c) effected in accordance with due process, and (d) carried out upon payment of compensation equivalent to the fair market value of the expropriated investment.  

Particularly instructive here is the case of Metalclad Corporation v. Mexico16, a NAFTA case brought by an American company against the state of Mexico in 2000.  In that case, an arbitral tribunal ruled that, as a result of numerous laws and other negative governmental actions passed and undertaken by Mexican state and municipal authorities, Mexico had effectively expropriated Metalclad's newly-constructed waste facility in Guadalcaza. The tribunal awarded Metalclad US$16,685,000 in damages representing Metalclad's sunk costs of the investment.17 While damages awarded against Mexico did not include an amount on account of discounted lost profits, such damages are thought to be sustainable under NAFTA in certain circumstances.

Equally instructive is a 2012 NAFTA case brought against Canada by the Abitibi-Bowater group and involving certain confiscatory legislation passed by the Province of Newfoundland. In this case, the provincial legislation provided for: (a) the expropriation of significant Abitibi-Bowater properties used for hydroelectric generation and transmission, (b) the cancellation of various hydroelectric contracts between the Abitibi-Bowater group and the Province, and (c) the termination of certain timber and water rights. While the legislation provided for compensation for the expropriated properties, no compensation was to be forthcoming for the terminated timber and water rights. The Abitibi-Bowater group brought a NAFTA claim asserting that the Newfoundland legislation constituted an expropriation of its assets without appropriate compensation contrary to NAFTA Article 1110. Faced with the prospect of an uphill fight, the Canadian government opted to settle the claim for $140 million.  

Besides NAFTA, and as indicated above, several bilateral trade arrangements exist which contain similar foreign investor protection.18 Importantly, the proposed multilateral Trans-Pacific Partnership currently being negotiated with several Asia-Pacific countries and the proposed Canada-European Union Comprehensive Economic and Trade Agreement (not yet in force) will also contain similar investor protection. Once implemented, these new trade arrangements will significantly expand the list of treaty-protected countries and the range of foreign stakeholders that will be able to benefit from investor protection.  Notably however Canada's trade agreements cannot be used by Canadian nationals to protect themselves against negative governmental action occurring within Canada in relation to their domestic investments.   

With the recent re-election of Ontario's Liberal government, stakeholders in Ontario's energy sector are, no doubt, breathing a little easier, as putative threats to tear up the Province's FIT contracts are now much more clearly off the table.19 Most assuredly, the restructuring risk has subsided.  Still, the issues here are as much financial as they are political, and history in Canada suggests that negative governmental action can never truly be ruled out.  If financial model failure occurs and is considered severe and persistent enough, then negative governmental action will remain a distinct (even if remote) possibility. 


1 The comprehensiveness of the Government's original financial models has been questioned by Ontario Auditor General in the Annual Report of the Office of the Auditor-General of Ontario.

2 Remarks of Greg Abel, Chairman, President and CEO of Spectra Energy, to Economic Club of Canada, June 24, 2014.  See also "Environmental and Economic Consequences of Ontario's Green Energy Act", R. R. McKitrick, Report prepared for Fraser Institute, 2013, and also "High Ontario Electricity Prices Hamper Ring of Fire Processing and Other Industry", L. Di Matteo, February 6, 2011.

Ontario's Electricity Surplus: An Opportunity to Reduce Costs"(the "Ontario Surplus"), a publication of the Ontario Clean Air Alliance Research Inc., July 2012.

4 See Ontario Surplus, supra.  See also "Eighteen Month Outlook: From March 2014 to August 2015" (the "18 Month Outlook"), a publication of the IESO, p. 4.

5 Based on 18 Month Outlook, Tables 3.1, 4.3-4.5.

6 See Ontario Surplus, p.3.

7 "Ontario's Power Trip: Power Dumping", Gallant, P., Financial Post, July 20, 2011, and "Ontario's Power Trip: Province lost $1.2-billion this year exporting power", Gallant, P., Financial Post, December 2, 2013.

8 "Ontario power fee sets new record: The global adjustment -- a fee added to the market price of electricity in Ontario -- has reached a record high", Walton, T., The Toronto Star, September 3, 2013.

9 "Regulatory Failure and Renewal: The Evolution of the Natural Monopoly Contract",  J. Baldwin, Ottawa: Economic Council of Canada 1989.

10 See Baldwin, Chaps. 3, 10 and 12, for example.  See also "Public Accountability in the Age of Contracting Out", E. Atwood and M.J. Trebilcock, (1996) 27 Can. Bus. L.J., v. 27, n. 1, p. 1, at p. 38.

11 A more recent instance occurred when in 2008 the Government of Newfoundland expropriated various power generating and transmission assets of the Abitibi-Bowater group (discussed further below in this article) pursuant to the Abitibi-Consolidated Rights And Assets Act (Newfoundland).

12 See for example "A Constant Recontracting Model of Sovereign Debt",  J. Bulow & K. Rogoff (1989) Journal of Political Economy, 155.

13 For a contrary view regarding the government's right to implement negative governmental action, see "Is the Pearson Airport Legislation Unconstitutional?: The Rule of Law as a Limit on Contract Repudiation by Government", P. Monahan, (1996) Osgoode H.L.J., v. 33, n. 3, p. 411, where the author argues that where legislation like Bill C-22 purports to deny access to the courts, the legislation breaches the rule of law implicitly enshrined in the Charter of Rights and Freedoms, and therefore is unconstitutional.

14 While the Canadian Bill of Rights provides an explicit right to the "enjoyment of property" and the right not to be deprived thereof without due process, the Canadian Bill of Rights only applies to federal laws, may not entitle the aggrieved party to compensation if the confiscatory legislation provides otherwise, and creates rights that do not have the same status as Charter rights. 

15 Siemens v. Manitoba (Attorney General), 2003 SCC 3; The Attorney General of Quebec v. Irwin Toy Limited, [1989] 1 S.C.R. 927; Whitbread v. Walley [1991] 2 W.W.R. 195 (SCC); Olympia Interiors Ltd. v. R. (1999), 167 F.T.R. 165 (Fed. T.D.), affirmed (1999), 1999 CarswellNat 1978 (Fed. C.A.), leave to appeal refused (2000), 252 N.R. 393 (S.C.C.); Energy Probe et al. v. The Attorney General Of Canada et al., (1994) 17 O.R. (3d) 717 (Ont. C.J.); and Shaw v. Stein, 2004 SKQB 194. 

16 See Metalclad Corporation v. Mexico, ICSID Case No. ARB(AF)/97/1 (NAFTA), Award. For an unsuccessful appeal of the NAFTA award to British Columbia Supreme Court, see United Mexican States v. Metalclad Corp., 2001 BCSC 664.

17 Damages were based on the claimant's actual investment in the property because the facility had not been operational long enough, and thus had not established a sufficient record of profitability, such that damages for lost profits could be proven.  The tribunal suggested that a "fair market value" award of damages for a going concern with a history of profitable operations would usually be based on an estimate of future profits, subject to a discounted cash flow analysis.  See  also Biloune, et al. v. Ghana Investment Centre, et al., 95 I.L.R.183, 207-10 (1993).

18 See, for example, Article 9.1 of the Canada-Panama Free Trade Agreement, Article G-10 of the Canada-Chile Free Trade Agreement, and Article 8.11 of the Canada-Korea Free Trade Agreement (not yet in force), all of which provide compensation for expropriatory measures taken by the federal or any provincial government.

19 See, for example, the Alliance for Renewable Energy's view of the threat in: "June 12 Provincial Election will determine the Future of Ontario FIT Programs",  June 3, 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions