On the Energy Consumer Protection Act

Ontario’s Energy Consumer Protection Act, 2010 (ECPA) came into effect on January 1, 2011. Here is a piece of legislation whose very title expresses a basic feature of our provincial government’s mandate: the protection of Ontario’s energy consumers. The Ontario Energy Board (OEB), in particular, is mandated to think deeply about energy supplier conduct. They are called upon to frame regulations that, in every instance, have the public interest in mind. And they are to insure—by the plausible threat of truly punitive sanctions—that energy suppliers comply with these rules. The OEB is specially mandated, in other words, to realize the basic purpose for with the ECPA was enacted.

A body of legislation that—by its very title—expresses our government’s intention to protect its citizens represents the latter as being, in some inherent sense, persons whose interests are threatened. What hazards do energy consumers face then? Why do Ontarian energy consumers require the special protection that the ECPA affords? The establishment of the ECPA’s focused regime of protection shows that the majority of our legislators assent to the following generalization: Ontario’s energy sector is characterized by a culture of unfairness, systematic malpractice, and indifference to the law.

Does the ECPA achieve the purpose for which it was designed? Does it actually protect Ontario’s energy consumers? One reason that this question bears asking is that the ECPA itself was intended to compensate for deficiencies in a number of earlier statutes. Prior to December 2009, when the ECPA was first put forward (as Bill 235), measures aimed at protecting the interests of energy consumers were encapsulated in sections of the Ontario Energy Board Act, 1998, the Electricity Act, 1998, the Consumer Protection Act, 2002, and the Residential Tenancies Act, 2006.

The ECPA was necessary because (best intentions aside) these earlier statutes did not adequately protect energy consumers. But the ECPA’s effectiveness is just as questionable as the interests of Ontario’s energy consumers continue to be threatened by misleading, and unfair practices of energy suppliers. This might be due to substantive weaknesses in the law itself. However it might be due, in fact, to the OEB’s failure, in general, to strictly and consistently enforce the law. If this is true, then the ECPA actually remains untested.

A review of the law’s effectiveness is clearly in order. This is why, on December 18, 2013, Ontario’s Minister of Energy asked the OEB to assess the “effectiveness” of the the ECPA’s second part (the section that bears on electricity retailing and gas marketing in Ontario). On April 8, 2014, the OEB announced that they would comply with the Minister’s request by conducting a public “consultation.” They promised to review consumers’ experience with energy suppliers; the latter’s products and services; suppliers’ conduct; the OEB’s experience as regulators of the retail energy sector; and the overall state of Ontario’s competitive retail gas and electricity markets. On July 21, 2014 OEB secretary Kirsten Walli issued an official invitation to all “interested parties” to take part in this consultation and announced that it would take place in the Fall (of 2014).

If this consultation’s fundamental question concerns the effectiveness of the second part of the ECPA, it seems unlikely that an informative and useful answer will be articulated by the very parties against whose misconduct the ECPA is supposed to offer protection. And yet, of the twenty-three (23) “interested parties” slated to participate, seventeen (17) are energy suppliers. Obviously, the latter have every right to take part. It is worth asking, however, what their likely contribution is going to be, given that the ECPA is a special measure meant to offer consumers protection from them. What do these suppliers have to offer here, given that the ECPA was framed by legislators who clearly assent to the generalization that they, these very energy suppliers, regularly imperil their customers’ interests? Under what conditions would energy suppliers, given their interests (which conflict, all too often, with their customers’), regard the ECPA as “effective” and when as “ineffective”?

Whether there are oversights and weaknesses in the legislation itself, or whether the OEB has failed consistently and strictly to enforce energy sector compliance with the law, if the voices of energy retailers’ are allowed to dominate the OEB’s “consultation” nothing will change. The same will be true if the OEB does not explore the possible inadequacy of their own compliance and enforcement activities. Ontario’s energy consumers will continue to be poorly protected in the face of energy supplier (mis)conduct. They will continue to be victimized by the energy sector’s culture of evasiveness, corner-cutting, and outright non-compliance. The issues that the ECPA was meant to clarify will remain as murky as ever: the nature and force of supplier contracts; their cancellation; invoicing; retail sales practice; the accountability of officers of energy supply companies; and the nature of the OEB’s own role.

In fact, consumers will continue to be subject to the kinds of problems that Utility Advocates regularly detects and remedies. They will be subject to misleading sales pitches, inaccurate metering, overbillings, surreptitious breaches of contracts, the unjust burden of the consequences of suppliers’ own errors (especially underbillings), unpaid rebates, and illegal rates of interest. To the extent that energy consumers remain unprotected, Utility Advocates will continue to offer services that are indispensible to their clients.