Canada: Energy @ Gowlings – November 2006

Last Updated: November 24 2006

Edited by Paul Harricks


  • Bernadette Corpuz Returns to Gowlings
  • The Power Will Be There But Will It Get to Market?
  • OPA, IESO and CANWEA Release Ontario Wind Integration Study
  • Ontario Transfer Tax Changes
  • Income Trusts
  • Federal Government Unveils Clean Air Act to Address Climate Change and Air Pollution
  • Ontario's Attitudes Towards Nuclear Energy
  • Energy Security Through an Integrated North American Oil and Gas Market
  • OPA Announces 414 MW of Co-Generation
  • Clean Energy Standard Offer Program
  • Global Map of Energy and Climate

Bernadette Corpuz Returns to Gowlings

Gowlings is pleased to announce that Bernadette Corpuz has rejoined the firm. Bernadette will be a member of the National Energy and Infrastructure Group.

Before rejoining Gowlings, Bernadette was General Counsel at Enersource Corporation. Ms. Corpuz directed all legal affairs of Enersource and its affiliates including commercial, corporate, contractual, legislative and regulatory, litigation and legal advice to the corporation, board of directors, senior executives and managers.

Before she joined Enersource, Bernadette had been a member of Gowlings National Energy and Infrastructure Group where her practice focused on energy trading contracts, power purchase agreements, natural gas purchase contracts, retail electricity purchase agreements, mergers and acquisitions, regulatory matters and general commercial law in the energy and infrastructure sectors.

The Power Will be There But Will It Get to Market?

The main preoccupation in the electricity sector in many jurisdictions has been the power supply mix. Attention has tended to focus on the type of generation supply: for example, nuclear, hydro or fossil fuels and the percentage that each supply type should have in the supply mix. Frequently the availability and strength of the infrastructure required to get the electricity to market has taken a back seat. In many jurisdictions, the key infrastructure – transmission lines – is aging and is not adequate to transmit the required future electricity supply to market, and in some cases does not even meet current requirements. Governments and regulatory bodies must turn their attention to ensuring that the electricity infrastructure is sufficient, some would argue more than sufficient, to ensure that future generation will be able to reach the market.

As generation and load patterns change so must the transmission grid. As changes occur in the location of major generation sites, either conventional or renewable, the transmission system must adapt and change because the change in the pattern of electricity flow can lead to a reduced ability to move electricity through the system. In addition, congestion may be created where it does not currently exist.

In Ontario, the transmission network was planned and designed when the province was a net exporter of electricity. That pattern is changing and the province is now a net importer. This transformation is changing the flow pattern and triggering the need for investment in the transmission network. The Ontario Power Authority (OPA) notes that, "timely investment in the transmission system will become an important enabler for some of the fundamental goals of Ontario's energy policy in the future."

It is now being recognized that an increased reliance on renewable generation will inevitably require significant new investment in transmission. The reason is simple: areas with good wind and water generation potential are generally in more remote locations where transmission facilities are often inadequate or even non-existent.

The Ontario transmission system was developed based on a large reliance on coal-fired generation. As the province phases out coal-fired generation, it is facing the reality that the replacement generation, in most circumstances renewable power, will not be located close to the existing coal-fired plants. Instead, the renewable generation will be located in areas of the province where transmission is either inadequate to move the electricity produced to market or where the transmission lines currently do not exist.

Recognizing that investment in transmission networks is required is only part of the equation. To ensure that transmission is in place when needed requires an efficient, non-duplicative regulatory process. In some jurisdictions, the length of time that is taken in the regulatory process for new transmission projects can be double the length of time to actually construct the transmission line. Ontario's Independent Electricity System Operator notes that, "there are a number of needed transmission projects that cannot be completed in time if we have to follow the current approvals process to the letter." Hydro One, the company responsible for Ontario's transmission network, further notes that, under the current regulatory regime, it will take until January 2018 before major transmission projects can be in service. However, under a streamlined regulatory regime the in-service date could be as early as January 2011.

The OPA is recognizing this challenge with the development of its Integrated Power System Plan. Through this Plan, the OPA is proposing that transmission capability be built to anticipate future demand and supply requirements, not in reaction to unanticipated demand or new generation.

Alberta has already adopted the forward-looking transmission-planning model. The Alberta Independent System Operator (AISO) is responsible for forecasting the needs of market participants and developing plans for the transmission system, including expansions and enhancements. When the AISO determines that an upgrade to the transmission system is required, it must submit to the utilities board a needs identification document.

Across Canada, the ability to move power to market efficiently is not just an integral part of a robust electricity sector but also a key factor for a strong economy. It is important, therefore, for decision makers to address key infrastructure requirements effectively in response to evolving market developments.

OPA, IESO And CANWEA Release Ontario Wind Integration Study

This recently released study by General Electric International, Inc. of Schenectady, New York was commissioned to aid in the development of the 20-year strategic Integrated Power System Plan for Ontario. The study examines the impact of moderate to significant penetration levels of wind generation on the operation of the Ontario Bulk Power System using five scenarios based on potential future wind project development in Ontario. It considers the impact of the increased variability that is inherent in wind on overall system performance and in doing so identifies areas of concern based on the statistical behaviour of load and wind.

The five scenarios are used to analyse the incremental impact of wind on generation scheduling and ramping, load following, regulation and operating reserve requirements in relation to maintaining existing performance levels of Ontario's power system.

The study, running 102 pages, is replete with charts, graphs, detailed explanations of data assumptions and methods of calculation.

The report:

  • Discusses the capacity value of the Ontario wind resource and finds that overall annual capacity is approximately 20% in all wind penetration scenarios considered, which means, for example, that 10,000 MW of installed nameplate wind capacity equates to approximately 2,000 MW of firm generation capacity;
  • Finds that the incremental regulation needed to maintain current operational performance is small for all postulated scenarios;
  • Concludes that; due to increased variability in the five-minute time frame (which is discussed in more detail in the study), load following requirements for more than 5,000 MW of wind may exceed existing generator capacity;
  • Finds that increased reserve requirements will be required for accommodating extreme drops in wind generation for the high wind penetration scenarios (especially during periods of low load);
  • Finds that, in certain scenarios, wind may push the minimum load point below what it might otherwise be so that additional ramping capacity and/or alternate generators may be required;
  • Finds that sudden occurrences of province-wide interruptions of wind generation are unlikely due to the widespread location of existing and planned plants;
  • Laments the dearth of adequate historical wind data from existing facilities and makes suggestions for Independent Electricity System Operator action in this regard; and
  • Recommends that advanced control features to assist with grid performance be mandated for all new plants.

The full report can be viewed at the following site:

Ontario Transfer Tax Changes

After much speculation, the Ontario Government announced on October 17, 2006 two items relating to the so-called "transfer tax" under the Ontario Electricity Act, 1998 (Electricity Act). In general terms, the transfer tax is a tax levied on municipal electricity utilities (MEUs) on the transfer of property used in the generation, transmission, distribution or retailing of electricity, and extends to the transfer of shares of a corporation that derive their value from such property. The transfer tax is levied at a rate of 33% and is widely seen as a significant disincentive to consolidation within the MEU sector.

Temporary Transfer Tax Exemption

The first item was the announcement of a temporary exemption from the transfer tax on dispositions of electricity property by one publicly-owned electricity utility to another. The exemption will apply to such a transfer if a binding agreement in respect of the transfer is entered into and filed for approval with the Ontario Energy Board before October 17, 2008. One of the public statements announcing the temporary exemption specifically stated that the exemption is "designed to encourage consolidations among municipal electricity utilities".

There have been two similar temporary exemptions since the transfer tax was first introduced. During the periods of these previous exemptions we saw a number of sales and amalgamations of MEUs in Ontario. The Ontario Government is apparently hoping that this temporary exemption will result in similar consolidation and rationalization in this sector.

Transfer Tax Cascading

The second change announced on October 17, 2006 is a follow-up to an announcement made in the 2006 Ontario Budget. In the Budget the Government undertook to address certain technical and policy deficiencies in the current structure of the transfer tax. One such deficiency related to the potential "cascading" of the tax. An example of such cascading would be when an MEU disposes of electricity property and is required to pay transfer tax, uses the after-tax proceeds from that disposition to invest in new electricity property, and then disposes of that new electricity property triggering liability for transfer tax again.

In general terms, the proposed new rule would provide for a refund of transfer tax paid by an MEU if the MEU reinvests the pre-tax proceeds from the disposition in new assets used in electricity activities. The reinvestment would have to be made before the end of the second taxation year after the taxation year in which the disposition occurred. A refund will not be available as a result of the purchase of shares of an MEU or of an interest in a partnership engaged in an electricity business nor in respect of tax paid on transfers of such shares or interests. Transfer tax paid in the past can qualify as tax paid on a transfer of electricity property if it occurred after November 6, 1998 and before October 17, 2006. On the other hand, a "refundable balance" will not be transferable from one MEU to another, including upon an amalgamation or winding-up of an MEU.


Neither of these items was completely unexpected or surprising. The changes in respect of the cascading of the transfer tax are welcome, but they clearly do not address all of the technical issues outstanding in respect of the tax.

The temporary exception from the tax is the bolder step on the part of the government, but it also does not address all of the issues relating to the impact of the transfer tax on consolidation within the MEU sector. In particular, it does not extend to private sector acquisitions of MEUs even by private sector participants who are already active in the Ontario distribution sector. The obvious result that is existing MEUs and, of course, Hydro One will have a significant advantage in bidding for MEUs that may be available for acquisition.

Income Trusts

On October 31, 2006, the federal government announced a wholesale overhaul of Canada's income and royalty trust market. The government publicly traded partnerships for good measure since if that avenue were not closed off, many corporations and trusts could restructure themselves as partnerships and continue the tax saving game.

For more information on this important policy issue, please refer to special issue of Canadian Tax @ Gowlings at the following link. Htmfiles/Bulletin_20061101.en.html

Federal Government Unveils Clean Air Act To Address Climate Change And Air Pollution

On October 19, 2006, the federal government tabled Bill C-30, Canada's Clean Air Act, which would amend the Canadian Environmental Protection Act, 1999 and other statutes in order to address emissions of greenhouse gases (GHGs) and other air pollutants such as sulphur dioxide, nitric oxide and mercury. In conjunction with the announcement of the Bill, the government issued a Notice of Intent to Develop and Implement Regulations and Other Measures to Reduce Air Emissions. Highlights of the new strategy include:

  • Reduce GHG emissions by 45% to 65% from 2003 levels by 2050;
  • Develop regulations to reduce air emissions from key industrial sectors including fossil-fuel fired electricity generation, upstream oil and gas, downstream petroleum, base metal smelters, iron and steel, cement, forest products, and chemicals production;
  • Harmonize motor vehicle emissions standards with those of the US Environmental Protection Agency;
  • Develop national air quality objectives for respirable particulate matter and ozone;
  • Develop regulations to reduce emissions of volatile organic compounds (VOCs) from various consumer and commercial products (e.g. paints and cleaning products);
  • Work with provinces to create harmonized emissions reporting system; and
  • Develop regulations on indoor air quality

It must be emphasized that the Bill merely establishes a framework for regulating GHGs and other air pollutants. The implications for industry and individuals will not be known until the contemplated regulations are released over the course of the next few years. For example, it remains to be seen whether there will be an emissions trading regime, and if so, whether it will be linked to international emissions markets.

One controversial aspect of the new strategy is the notion of "intensity-based" targets for GHG emissions. Under the scheme industry would be given an emissions target per unit of output rather than an absolute cap on emissions. A plant would have to ensure that its emissions do not exceed a certain level for each widget produced. The rationale is that this approach does not stifle economic growth: the plant would not have to cut back on widget production to meet its target. The controversy stems from the possibility that overall emissions will continue to rise, even if the efficiency targets are met. It should be noted that this approach is only proposed for GHG emissions – fixed caps would be set for emissions of other air pollutants such as those that cause smog and acid rain. Moreover, the government has only committed to intensity-based targets for GHGs for the short- and medium-term (until 2025) – there is no promise that fixed caps on GHG emissions will not be imposed beyond that time.

It is evident that the Bill would not bring Canada into compliance with its obligations under the Kyoto Protocol (i.e. a 6% reduction of GHG emissions below 1990 levels by the 2008-2012 compliance period). The government made no mention of Kyoto in its announcement of the Bill. The new strategy, with no target for overall GHG emissions reductions until 2050, encompasses a much longer time horizon than that contemplated under Kyoto. That said, a long-term 45-65% drop is not trivial, especially when one considers that Canada's GHG emissions have actually risen by about 25% since 1990. Until the regulations are unveiled we will not know just how the government intends to achieve that target.

In the meantime, the government will face a real challenge in steering the Bill through Parliament, where it has so far been given a cool reception by the opposition parties.

The text of the Bill is available at: Language=E&Parl=39&Ses=1&Mode=1&Pub=Bill&Doc=C-30_1&File=9

and the Notice of Intent is available at:

Ontario's Attitudes Towards Nuclear Energy

In a recent survey completed by the Canadian Nuclear Association, six in ten Ontario residents continue to support nuclear energy and half believe that there should be an increase of nuclear dependence in the future. In addition, the survey indicated that at least three-quarters of Ontarians fear that there is insufficient energy in the province to meet future demand, a level that marks the highest level of concern to date.

Survey Methodology

The survey tracked support levels from February 2005 to July 2006 and was conducted via random telephone calling, with an average sample size of about 1000. The results are considered accurate to within +/- 3.1% of what they would have been should the entire adult population of Ontario be polled.

Energy Issues in Ontario

Forty-seven percent of the surveyed Ontarians found medical and healthcare to be a top priority issue while only 8% mentioned energy issues as a top priority. In July 2006, 77% of all surveyed strongly disagreed that conservation efforts by consumers would offset this growing demand for energy, resulting in insufficient electricity in Ontario to meet future needs.

Sixty-two percent of survey participants support nuclear energy compared to 95% of those who support solar power. The support levels for other forms of energy are as follows: 95% for wind power, 90% for hydroelectric power, 77% for natural gas and 30% for coal. The intensity of support for nuclear has only changed slightly from the April 2002 to July 2006 period, with an overall average of about 65% support.

Seventy-two percent of surveyed Ontarians support refurbishing of power-generating plants, a number which has increased from May 2004, where the support level was 67%. Fifty-seven percent of the respondents were in support of new build versus a support level of 50% in May 2004.

Key Demographics

In general, a higher percentage of men than women, older rather than younger and higher income-earners rather than lower-income earners, were supportive of nuclear energy. The region with the highest level of support is South western Ontario.

The demographics for survey respondents in support of refurbishing and new build were relatively similar to that of those in support of nuclear energy with only very slight variances.

More information can be found at the Canadian Nuclear Association's website:

Energy Security Through an Integrated North American Oil and Gas Market

The Fraser Institute has published a paper entitled "Achieving Energy Security through Integrated Canadian-American Markets." The paper lists a number of recommendations that are intended to enhance the integrated market-based relationship in oil and gas between the two countries.

The paper notes that the Canadian-U.S. oil and gas sector has become deeply integrated over the last 20 years due in large part to competitive market forces which have displaced "various attempts at government intervention on both sides of the border. The market has evolved not because the regulatory regimes that have developed are geared to optimizing free-market exchanges." The paper further notes that, "the border is usually invisible as trade in oil, gas (and also electricity) flows in a patchwork of densely interconnected regions."

The following tables provide a snapshot of the current energy situation with respect to oil and gas for Canada and the U.S.

Canada's Energy Picture 2005



Net US Exports to Canada


Crude Oil (Billions of barrels)


Crude Oil (Million barrels per day)


Natural Gas (Trillion Cubic Feet)


Natural Gas (Billion cubic feet per day)


Domestic Production


Net Mexican Exports to Canada


Crude Oil (Million barrels per day)


Crude Oil (Million barrels per day)


Natural Gas (Billion cubic feet per day)


Natural Gas (Billion cubic feet per day)


Domestic Consumption


Net non-NAFTA Exports to Canada


Crude Oil (Million barrels per day)


Crude Oil (Million barrels per day)


Natural Gas (Billion cubic feet per day)


Natural Gas (Billion cubic feet per day)


Source: Data from the Organisation for Economic Co-Operation and Development, as published by the Energy Information Administration, US Department of Energy

United State's Energy Picture 2005



Net Canadian Exports to US


Crude Oil (Billions of barrels)


Crude Oil (Million barrels per day)


Natural Gas (Trillion Cubic Feet)


Natural Gas (Billion cubic feet per day)


Domestic Production


Net Mexican Exports to Canada


Crude Oil (Million barrels per day)


Crude Oil (Million barrels per day)


Natural Gas (Billion cubic feet per day)


Natural Gas (Billion cubic feet per day)


Domestic Consumption


Net non-NAFTA Exports to Canada


Crude Oil (Million barrels per day)


Crude Oil (Million barrels per day)


Natural Gas (Billion cubic feet per day)


Natural Gas (Billion cubic feet per day)


Source: Energy Information Administration, Us Department of Energy

The paper notes that energy nationalism is not dead in Canada. The rising importance of the oil sands, along with oil prices that are significantly higher than in the past, may "lure governments to nationalize energy exploration or production."

The definition, according to the paper, of energy security is "diversity of supply within an integrated regional market." The authors further state that: "Many Canadians simply assume that there is a large abundance of oil and natural gas in their country and that only America has an energy-supply crisis. In fact, Canada has relatively little conventional oil and most of its fields are in decline."

Market integration between Canada and the U.S. has occured because of the following factors:

  • Political stability and legal transparency;
  • Private industry operating in a competitive market;
  • Regional supply and demand areas with a high degree of north south integration;
  • Regulatory compatibility; and
  • A single financial/investment area and congruent capital markets.

Although asset allocation and investment should be left to the market, government plays an important role in creating the optimal environment for investment. To ensure that this climate is fostered, federal and provincial governments need to focus on the following areas:

  • Signalling a long-term commitment to market based solutions and removing policy uncertainties arising from environmental restrictions and First Nations land claims;
  • Streamlining and consolidating regulations and regulatory procedures within the framework of an integrated Canada-U.S. market; modernizing regulations and developing best practices in the exploration and production of unconventional oil and gas; and
  • Providing market based incentives for investment to overcome impediments to developing greater capacity and new technologies.

The following are some recommendations contained within the paper:

  • Government incentives rather than environmental freezes to help speed up technological advances in energy efficiency and emissions reduction for the process of producing and upgrading oil-sands bitumen;
  • Targeted tax incentives for developing a heavy oil pipeline infrastructure to encourage industry to move beyond the current piecemeal approach;
  • Investment by the Alberta government (in cooperation with the Federal government where appropriate) in public infrastructure for communities currently stretched to the limit by the rapid growth in the oil-sands industry to maintain investor confidence;
  • A joint British Columbia – Federal task force to fast track the opening of British Columbia's offshore natural gas production;
  • Canadian-American cooperation on developing harmonized and streamlined best practices and regulations in approving new liquefied natural gas (LNG) facilities and in regulating LNG imports;
  • A clear time frame for the settlement of disputes between the Canadian government and the Deh Cho First Nation that are delaying the building of the proposed MacKenzie Valley Pipeline; and
  • Government review of regulation, application processes and incentives in order to make nuclear reactors for steam and electricity generation a more attractive option in oil-sands production and to lessen demand for natural gas as well as provide a cleaner source of energy.

The full publication can be viewed by visiting the following site:

OPA Announces 414 MW Of Co-Generation

The Ontario Power Authority (OPA) has signed contracts with seven generators for a combined capacity of 414 MW. The total capital investment is $800 million with commercial operation dates ranging from February 2008 to May 2010.

"The projects are diverse in type and location, providing electricity and efficient thermal energy to Ontario industry and communities," said Paul Bradley, OPA Vice President of Electricity Resources. "They represent the high efficiency we should be striving for in Ontario's future power projects."

The following table summarizes the seven projects.




Capacity (MW)


Great Northern Tri-Gen Facility




Countryside London Cogeneration



District energy for industrial and commercial facilities

Warden Energy Centre CHP Community



District energy for industrial, commercial and residential buildings

Durham College CHO District Energy Project



District energy for college buildings

Algoma Energy By-Product Cogeneration

Sault Ste. Marie


Steel Mill

Thorold Cogeneration Project



Paper Mill

East Windsor Cogeneration Centre



Engine Plant

Clean Energy Standard Offer Program

The Ontario Power Authority (OPA) has initiated the Clean Energy Standard Offer Program (CESOP). This initiative will support small clean-energy generating alternatives including combined heat and power and power only. The intent of the CESOP is to encourage participation by a variety of technologies whether the primary fuel source is natural gas, waste heat or waste energy.

In reducing barriers for small generators, the CESOP will adhere to the following principles:

  • The efficient and effective use of energy;
  • Sustainable and environmental compliance;
  • The reliability of the electricity system;
  • A good value proposition; and
  • Program simplicity.

Global Map of Energy and Climate

Alcan, Centrica and Maplecroft recently teamed up to create a global map intended to raise awareness of energy and climate issues internationally. The map was produced with help from the World Business Council for Sustainable Development and the Climate Change Initiative of the World Economic Forum.

The map illustrates how energy has become a critical focal point for business and society today by exploring the interrelated challenges of energy use, greenhouse gas emissions and climate change. Additionally, suggestions are made on how society, and business in particular, can move towards a future with sustainable energy uses.

Special features of the global map include:

  • Case studies on various measures taken by businesses to address the challenge of balancing energy and climate issues;
  • In-depth analysis of energy and climate issues such as specific country data, various frameworks currently in place to tackle climate change issues and a greenhouse gas emissions index which ranks countries against each other;
  • Greenhouse gas emissions map and data, where countries are shaded according to various emission levels and trends and detailed information in 184 countries; and
  • Business engagement techniques provided for various issues such as carbon resources, renewable energy use, etc., and demonstrating the need for business action on energy and climate issues.

The interactive map can be found at

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.

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You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.