As Ontario moves toward meeting its Climate Change Action Plan objectives, the
conversion of fuel sources in the transportation sector is a key
initiative. Within this sector, Ontario has just promised the
creation of a province-wide network of electric vehicle (EV)
charging stations. In a proactive move, the Ontario
Energy Board (OEB) has issued a staff bulletin opinionating
that EV charging is not currently subject to its jurisdiction as it
is neither electricity distribution nor electricity retailing, as
While Staff's views are expressly not binding on the
decision makers at the Board in any proceeding before them, they
are formulated and released in consultation with Board members and
generally can be assumed to reflect the "institutional"
views of the regulator (and thus the views of the Board members,
subject to an evidentiary record demanding an alternative
approach). That is, while they are not guarantees, these Bulletins
are strongly indicative of how the Board would approach an
adjudication on the topic. (These are akin to interpretation
bulletins put out by taxing authorities or securities
In the bulletin just released OEB Staff has concluded that:
Ownership and operation of EV charging stations, and the
selling of EV charging services, are not licensable activities
under Ontario electricity regulatory legislation, and thus are not
subject to any OEB administered compliance obligations (which
compliance obligations would include prescribed pricing
EV charging facilities are not "distribution
facilities", as they don't provide electricity
distribution for load types other than EVs. (As distinct from
conventional electricity distribution activities which provide
electricity services that can be used by the consumer for a variety
of end uses.)
Providers of EV charging services do not sell electricity as a
commodity. Rather they provide a complete "vehicle
refueling" service. (Staff further notes that many different
entities can, and do, offer this service, under a wide variety of
possible business models, thus providing consumers with adequate
choice for EV charging services. Where there is competition, there
is a less compelling case for regulation.)
The Bulletin also opines that licensed electricity distributors
can own and operate EV charging facilities through their regulated
distribution entities in Ontario, provided that the services
offered by the distributor support "the management of load in
keeping with the Government's goals for electricity
conservation". This proviso applies a specific exemption in
Ontario law to a general restriction on permitted business
activities for electricity distributors . In general, electricity
distributors are restricted to owning and operating distribution
facilities; however, services offered for the purposes of load
management, they are permitted.
We now have one of the major energy regulators in the country
providing a clear (institutional, though not jurisprudential) view
on ownership and operation of EV facilities. The reasoning
underpinning the Staff opinion, as summarized above, seems sound
and will be instructive to other energy regulators in Canada
considering these issues. (though careful consideration is
warranted of how EV charging services might be impacted by the
particular legislative structure for electricity regulation in each
In Ontario, it will be important to monitor the impact on the EV
charging services market of the potential expansion into that
market of electricity distributors. pursuant to the "load
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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