Bill 23, Ontario Energy Board Consumer Protection and Governance Act, 2003

Baird, Hon. John R. Minister of Energy

Versions

Bill 23 2003

An Act to amend the
Ontario Energy Board Act, 1998
and the Municipal Franchises Act
in respect of consumer protection,
the governance of the
Ontario Energy Board
and other matters

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Municipal Franchises Act

1. Section 11 of the Municipal Franchises Act is repealed.

Ontario Energy Board
Act, 1998

2. Section 1 of the Ontario Energy Board Act, 1998, as amended by the Statutes of Ontario, 2002, chapter 23, section 4, is amended by adding the following paragraph:

7. To promote communication within the electricity industry and the education of consumers.

3. (1) Paragraph 2 of section 2 of the Act is repealed and the following substituted:

2. To protect the interests of consumers with respect to prices and the reliability and quality of gas service.

(2) Section 2 of the Act, as amended by the Statutes of Ontario, 2002, chapter 23, section 4, is amended by adding the following paragraph:

6. To promote communication within the gas industry and the education of consumers.

4. (1) The definition of "director" in section 3 of the Act is repealed.

(2) The definition of "gas transmitter" in section 3 of the Act is amended by striking out "hydrocarbon transmission line, as defined in Part VI, and" and substituting "hydrocarbon transmission line, and".

5. (1) Subsection 4 (1) of the Act is amended by striking out "and shall consist of as many members, not fewer than five, as the Lieutenant Governor in Council may from time to time determine" at the end.

(2) Subsection 4 (1) of the Act, as amended by subsection (1), is repealed and the following substituted:

Board continued

(1) The Ontario Energy Board is continued as a corporation without share capital under the name Ontario Energy Board in English and Commission de l'énergie de l'Ontario in French.

(3) Subsections 4 (2) to (5) of the Act are repealed.

(4) Section 4 of the Act, as amended by subsections (1), (2) and (3), is amended by adding the following subsections:

Powers

(2) The Board has the capacity and the rights, powers and privileges of a natural person for the purpose of exercising and performing its powers and duties under this or any other Act, except as otherwise provided in this Act.

Duties

(3) The Board shall perform the duties assigned to it under this or any other Act.

Crown agency

(4) The Board is an agent of Her Majesty in right of Ontario, and its powers may be exercised only as an agent of Her Majesty.

6. The Act is amended by adding the following section:

Composition

4.1 (1) The Board shall be composed of at least five members.

Appointment

(2) The members shall be appointed by the Lieutenant Governor in Council.

Term of initial appointment

(3) The first term of office of a person who is appointed to the Board shall not exceed two years.

Transition

(4) Subsection (3) does not apply to a person who is a member of the Board when subsection (3) comes into force.

Reappointments

(5) A member of the Board may be reappointed for one or more terms of office, each of which does not exceed five years.

Chair and vice-chairs

(6) The Lieutenant Governor in Council shall, by order, designate a member of the Board as chair and shall designate two members as vice-chairs.

Same

(7) The chair and each vice-chair holds office for the term specified by the Lieutenant Governor in Council which shall not exceed his or her term as a member of the Board.

Same

(8) Despite subsections (3) and (5), when a member of the Board is designated as chair, the designation may provide that his or her term of office as a member continues for a period that does not exceed five years from the date of the designation as chair, and subsection (5) applies to any subsequent reappointment as a member.

Duties of chair

(9) The chair is the chief executive officer of the Board and, unless otherwise authorized by the Minister, shall devote his or her full time to the work of the Board.

Chair may delegate

(10) The chair may in writing delegate any of his or her powers or duties to a vice-chair.

Conditions and restrictions

(11) A delegation under subsection (10) is subject to such conditions and restrictions as the chair may specify in writing.

Acting chair

(12) If no one is available to exercise or perform a power or duty of the chair, any vice-chair may exercise the power or duty.

7. The Act is amended by adding the following section:

Management committee

4.2 (1) The Board shall have a management committee composed of the chair and the vice-chairs.

Duties

(2) The management committee shall manage the activities of the Board, including the Board's budgeting and the allocation of the Board's resources, and shall perform such other duties as are assigned to the management committee under this Act.

Rules of practice and procedure

(3) The Board's authority to make rules governing practice and procedure under section 25.1 of the Statutory Powers Procedure Act shall be exercised by the management committee on behalf of the Board.

Quorum

(4) Subject to the by-laws made under section 4.10, two members of the management committee constitute a quorum.

Presiding officer

(5) The chair shall preside over management committee meetings.

Delegation

(6) The management committee shall not delegate any of its powers or duties under the following provisions:

1. Sections 4.8 to 4.10.

2. Subsection 6 (1).

3. Section 26.

4. Any other provision prescribed by the regulations.

Same

(7) Subject to subsection (6), the management committee may delegate its powers and duties, but only to a member of the management committee.

Conditions and restrictions

(8) A delegation under subsection (7) is subject to such conditions and restrictions as the management committee may specify in writing.

8. The Act is amended by adding the following section:

Panels

4.3 (1) The chair may assign one or more members of the Board to a panel to hear or determine any matter and, for that purpose, the panel has all the jurisdiction and powers of the Board.

Same

(2) A member of the Board shall not exercise or perform any power or duty of the Board except as a member of a panel to which he or she has been assigned.

Same

(3) Subsection (2) does not apply to the powers of the Board under sections 44 and 70.1.

9. The Act is amended by adding the following section:

Advisory committee

4.4 (1) The Minister shall establish an advisory committee to provide advice to the Board's management committee on such matters as the Minister or the management committee may specify and to perform such other duties as are assigned to the advisory committee under this Act.

Appointment

(2) The Minister shall appoint the members of the advisory committee.

10. The Act is amended by adding the following section:

Fiscal year

4.5 The fiscal year of the Board begins on April 1.

11. The Act is amended by adding the following sections:

Memorandum of understanding

4.6 (1) Every three years beginning with the Board's 2003-2004 fiscal year, the chair of the Board, on behalf of the Board and its management committee, and the Minister shall enter into a memorandum of understanding setting out,

(a) the respective roles and responsibilities of the Minister, the chair and the management committee;

(b) the accountability relationships between the chair, the management committee and the Minister;

(d) the responsibility of the chair and the management committee to provide the Minister with business plans, operational budgets and plans for proposed significant changes in the operations or activities of the Board;

(e) details of an obligation that requires the management committee to provide the Minister with statements of the Board's priorities and to publish those statements;

(f) details of an obligation that requires the management committee,

(i) to provide the Minister with regulatory calendars that set out anticipated dates for,

(A) dealing with proceedings that are expected to be heard or determined by the Board, and

(B) exercising the power to make rules under section 44 or issue codes under section 70.1, and

(ii) to publish the regulatory calendars described in subclause (i);

(g) details of an obligation that requires the management committee to establish performance standards for the Board;

(h) details of an obligation that requires the management committee to establish and maintain a pay for performance plan for full-time members of the Board that links payment of bonuses to the achievement of performance standards;

(i) details of an obligation respecting consumer protection support that requires the management committee, on behalf of the Board, to make and maintain rules governing practice and procedure under section 25.1 of the Statutory Powers Procedure Act that govern interim and final awards of costs to organizations representing consumers;

(j) details of an obligation that requires the management committee to consult with the advisory committee established under section 4.4 with respect to the obligations referred to in clauses (e) to (i); and

(k) any other matter that the parties consider necessary or appropriate.

Same

(2) The Board shall comply with the memorandum of understanding in exercising its powers and performing its duties under this Act, but the failure to do so does not affect the validity of any action taken by the Board or give rise to any rights or remedies by any person, other than rights or remedies provided by the memorandum of understanding.

Publication

(3) The management committee shall publish the memorandum of understanding on the Board's website on the Internet as soon as practicable after the memorandum is entered into.

Minister's request for information

4.7 (1) The Board's management committee shall promptly give the Minister such information about the Board's activities, operations and financial affairs as the Minister requests.

Examination

(2) The Minister may designate a person to examine any financial or accounting procedures, activities or practices of the Board and report the results of the examination to the Minister.

Duty to assist, etc.

(3) The members and employees of the Board shall give the person designated by the Minister all the assistance and co-operation necessary to enable him or her to complete the examination.

Financial statements

4.8 (1) The Board's management committee shall cause annual financial statements to be prepared for the Board in accordance with generally accepted accounting principles.

Same

(2) The financial statements must present the financial position, results of operations and changes in the financial position of the Board for its most recent fiscal year.

Auditors

(3) The management committee shall appoint one or more auditors licensed under the Public Accountancy Act to audit the financial statements of the Board for each fiscal year.

Provincial Auditor

(4) The Provincial Auditor may also audit the financial statements of the Board.

Annual report

4.9 (1) Within six months after the end of each fiscal year, the Board's management committee shall deliver to the Minister an annual report, including the Board's audited financial statements, on the affairs of the Board for that fiscal year.

Report to be laid before Assembly

(2) Within one month after receiving the annual report, the Minister shall lay the report before the Assembly by delivering the report to the Clerk.

By-laws

4.10 (1) The Board's management committee may make by-laws,

(a) governing the administration, management and conduct of the affairs of the Board;

(b) prescribing emergency circumstances in which the quorum of the management committee is one member;

(d) setting out the powers, functions and duties of the chair, the vice-chairs and the officers employed by the Board;

(e) governing the remuneration and benefits of the chair, the vice-chairs and the other members of the Board.

Notice to Minister

(2) The management committee shall deliver to the Minister a copy of every by-law passed by it.

Minister's review of remuneration and
benefits by-laws

(3) Within 60 days after delivery of a by-law made under clause (1) (e), the Minister may approve, reject or return it to the management committee for further consideration.

Effect of approval

(4) A by-law made under clause (1) (e) that is approved by the Minister becomes effective on the date of the approval or on such later date as the by-law may provide.

Effect of rejection

(5) A by-law made under clause (1) (e) that is rejected by the Minister does not become effective.

Effect of return for further consideration

(6) A by-law made under clause (1) (e) that is returned to the management committee for further consideration does not become effective until the committee returns it to the Minister and the Minister approves it.

Expiry of review period

(7) If, within the 60-day period referred to in subsection (3), the Minister does not approve, reject or return the by-law for further consideration, the by-law becomes effective on the 75th day after it is delivered to the Minister or on such later date as the by-law may provide.

Publication

(8) The management committee shall publish every by-law made under subsection (1) on the Board's website on the Internet as soon as practicable after the by-law becomes effective.

Regulations Act not to apply

(9) The Regulations Act does not apply to by-laws made by the management committee under subsection (1).

12. The Act is amended by adding the following sections:

Restrictions on Board powers

4.11 The Board shall not, without the approval of the Lieutenant Governor in Council,

(a) create a subsidiary;

(b) purchase or sell real property;

(c) borrow money, pledge, mortgage or hypothecate any of its property, or create or grant a security interest in any of its property;

(d) enter into a contract of a class prescribed by the regulations; or

(e) exercise other rights, powers or privileges under subsection 4 (2) that are prescribed by the regulations.

Purchases and loans by Province

4.12 (1) The Minister of Finance, on behalf of Ontario, may purchase securities of or make loans to the Board in such amounts, at such times and on such terms and conditions as the Lieutenant Governor in Council considers expedient.

Same

(2) The Minister of Finance may pay from the Consolidated Revenue Fund the money necessary for a purchase or loan made under subsection (1).

Authority re income

4.13 (1) Despite Part I of the Financial Administration Act, revenue from the exercise of a power conferred or the discharge of a duty imposed on the Board or the Board's management committee under this or any other Act, and the investments held by the Board, do not form part of the Consolidated Revenue Fund and, subject to this section, shall be applied to carrying out the powers conferred and duties imposed on the Board under this or any other Act.

Same

(2) The revenue referred to in subsection (1) includes the following:

1. Fees payable under section 12.1.

2. Assessments payable under section 26.

3. Costs payable to the Board under section 30.

4. Administrative penalties payable under section 112.5.

Collection of personal information

4.14 The Board may collect personal information within the meaning of section 38 of the Freedom of Information and Protection of Privacy Act for the purpose of carrying out its duties and exercising its powers under this or any other Act.

Non-application of certain Acts

4.15 The Corporations Act and the Corporations Information Act do not apply with respect to the Board.

Members and employees

4.16 (1) The Public Service Act does not apply to the members and employees of the Board.

Status of members

(2) The members of the Board are not its employees, and the chair and vice-chairs shall not hold any other office in the Board or be employed by it in any other capacity.

Conflict of interest, indemnification

(3) Sections 132 (conflict of interest) and 136 (indemnification) of the Business Corporations Act apply with necessary modifications with respect to the Board as if the Minister were its sole shareholder.

Agreement for services

(4) The Board and a ministry of the Crown may enter into agreements for the provision by employees of the Crown of any service required by the Board to carry out its duties and powers, and the Board shall pay the agreed amount for services provided to it.

13. Sections 5 to 8 of the Act are repealed and the following substituted:

Chief operating officer and secretary

5. The Board's management committee shall appoint a chief operating officer of the Board and a secretary of the Board from among the Board's employees.

Delegation of Board's powers and duties

6. (1) The Board's management committee may in writing delegate any power or duty of the Board to an employee of the Board.

Exceptions

(2) Subsection (1) does not apply to the following powers and duties:

1. Any power or duty of the Board's management committee.

2. The power to make rules under section 44.

3. The power to issue codes under section 70.1.

4. The power to make rules under section 25.1 of the Statutory Powers Procedure Act.

5. Hearing and determining an appeal under section 7 or a review under section 8.

6. The power to make an order against a person under section 112.3, 112.4 or 112.5, if the person gives notice requiring the Board to hold a hearing under section 112.2.

7. A power or duty prescribed by the regulations.

Conditions and restrictions

(3) A delegation under this section is subject to such conditions and restrictions as the management committee may specify in writing.

No hearing

(4) An employee of the Board may exercise powers and duties that are delegated under this section without holding a hearing.

Statutory Powers Procedure Act

(5) If an employee of the Board holds a hearing pursuant to this section, the Statutory Powers Procedure Act applies to the same extent as if members of the Board were holding the hearing.

Review by employee

(6) An employee of the Board who makes an order pursuant to this section may, within a reasonable time after the order is made and if he or she considers it advisable, review all or part of the order, and may confirm, vary or cancel the order.

Transfer to Board

(7) At any time before an employee of the Board makes an order in respect of a matter pursuant to this section, the management committee may direct that the matter be transferred to the Board for determination.

Effect of employees' orders, etc.

(8) Anything done by an employee of the Board pursuant to this section shall be deemed, for the purpose of this or any other Act, to have been done by the Board.

Application of ss. 33 and 34

(9) Despite subsection (8), sections 33 and 34 and subsection 38 (4) do not apply to an order made by an employee of the Board pursuant to this section.

Appeal from delegated function

7. (1) A person directly affected by an order made by an employee of the Board pursuant to section 6 may, within 15 days after receiving notice of the order, appeal the order to the Board.

Exception

(2) Subsection (1) does not apply to,

(a) a person who did not make submissions to the employee after being given notice of the opportunity to do so; or

(b) a person who did not give notice requiring the Board to hold a hearing under section 112.2, in the case of an order made by the employee under section 112.3, 112.4 or 112.5.

Parties

(3) The parties to the appeal are:

1. The appellant.

2. The applicant, if the order is made in a proceeding commenced by an application.

3. The employee who made the order.

4. Any other person added as a party by the Board.

Powers of Board

(4) The Board may confirm, vary or cancel the order.

Stay

(5) An appeal under this section does not stay the order of the employee, unless the Board orders otherwise.

Review of delegated function

8. (1) The Board's management committee may, on its own motion, within 15 days after the making of an order by an employee of the Board pursuant to section 6, direct the Board to review the order.

Parties

(2) The parties to the review are:

1. Every person directly affected by the order, including, if the order is made in a proceeding commenced by an application, the applicant.

2. The employee who made the order.

3. Any other person added as a party by the Board.

Exception

(3) Despite paragraph 1 of subsection (2), a person is not a party to the review if the person did not make submissions to the employee after being given notice of the opportunity to do so.

Application of subss. 7 (4) and (5)

(4) Subsections 7 (4) and (5) apply, with necessary modifications, to a review under this section.

14. Section 9 of the Act is repealed and the following substituted:

Power to administer oaths

9. The secretary of the Board and an inspector appointed under section 106 has, in carrying out his or her duties under this Act, the same powers as a commissioner for taking affidavits in Ontario.

15. Subsection 11 (2) of the Act is repealed and the following substituted:

Same

(2) A member of the Board is not liable for an act, an omission, an obligation or a liability of the Board or its employees.

Crown liability

(3) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsections (1) and (2) do not relieve the Crown of any liability to which it would otherwise be subject in respect of a tort committed by any person referred to in subsection (1) or (2).

16. Subsections 12 (1), (2) and (3) of the Act are repealed.

17. The Act is amended by adding the following section:

Fees

12.1 (1) The Board's management committee may set and charge fees for copies of Board orders, decisions, reasons, reports, recordings or other documents or things, including documents certified by a member of the Board or the secretary of the Board.

Application and other fees

(2) The management committee may set and charge licence fees, application fees and other fees relating to an application or appeal to the Board.

Classes

(3) The management committee may establish different fees for different classes of persons and for different types of proceedings and types of licences.

18. Section 13 of the Act is repealed and the following substituted:

Forms

13. The Board's management committee may,

(a) establish forms and require their use in connection with any matter relating to the Board; or

(b) approve forms or the content of the forms and require that any application, appeal or information submitted to the Board be in the approved form.

19. Sections 15 and 16 of the Act, and section 17 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2 and 2002, chapter 1, Schedule B, section 2, are repealed and the following substituted:

Orders and licences

15. (1) All orders made and licences issued by the Board shall be signed by the chair, a vice-chair or the secretary.

Same

(2) Despite subsection (1), an order made or licence issued by the Board pursuant to section 6 may be signed by the employee who made the order or issued the licence.

Judicial notice

(3) An order or licence that purports to be signed by a person referred to in subsection (1) or (2) shall be judicially noticed without further proof.

Non-application of Regulations Act

(4) The Regulations Act does not apply to the orders made or licences issued by the Board.

20. (1) Subsection 21 (4) of the Act, as amended by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 3, is amended by adding "or" at the end of clause (a), by striking out "or" at the end of clause (b) and by repealing clause (c).

(2) Subsection 21 (5) of the Act is repealed and the following substituted:

Consolidation of proceedings

(5) Despite subsection 9.1 (1) of the Statutory Powers Procedure Act, the Board may combine two or more proceedings or any part of them, or hear two or more proceedings at the same time, without the consent of the parties.

(3) Section 21 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2 and 2002, chapter 1, Schedule B, section 3, is amended by adding the following subsection:

Use of same evidence

(6.1) Despite subsection 9.1 (5) of the Statutory Powers Procedure Act, the Board may treat evidence that is admitted in a proceeding as if it were also admitted in another proceeding that is heard at the same time, without the consent of the parties to the second-named proceeding.

21. The Act is amended by adding the following section:

Final decision

22.1 (1) The Board shall issue an order that embodies its final decision in a proceeding within 60 days after making the final decision.

Validity of decision not affected

(2) Failure to comply with subsection (1) does not affect the validity of the Board's decision.

22. Subsection 23 (2) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 4, is repealed.

23. Section 24 of the Act is amended by striking out "or an assistant secretary".

24. Subsection 26 (1) of the Act is amended by striking out "the Board may assess" and substituting "the Board's management committee may assess".

25. (1) Subsections 30 (1), (2) and (3) of the Act are repealed and the following substituted:

Costs

(1) The Board may order a person to pay all or part of another person's costs in a proceeding.

Same

(2) The Board may make an interim or final order that provides,

(a) by whom and to whom any costs are to be paid;

(b) the amount of any costs to be paid or by whom any costs are to be assessed and allowed; and

Rules

(3) The rules governing practice and procedure that are made under section 25.1 of the Statutory Powers Procedure Act may prescribe a scale under which costs shall be assessed.

(2) Section 30 of the Act is amended by adding the following subsection:

Application

(6) This section applies despite section 17.1 of the Statutory Powers Procedure Act.

26. Subsection 31 (2) of the Act is repealed.

27. Subsection 32 (1) of the Act is amended by striking out "any question that, in the opinion of the Board, is a question of law" at the end and substituting "any question that is a question of law within the jurisdiction of the Board".

28. (1) Subsection 33 (1) of the Act is repealed and the following substituted:

Appeal to Divisional Court

(1) An appeal lies to the Divisional Court from,

(a) an order of the Board;

(b) the making of a rule under section 44; or

(2) Subsection 33 (2) of the Act is amended by striking out "the making of the rule or order" at the end and substituting "the making of the order or rule or the issuance of the code".

29. (1) Subsection 34 (1) of the Act is repealed and the following substituted:

Petition to L.G. in C.

(1) On the petition of any party or person interested, filed with the Clerk of the Executive Council within 28 days after the date the Board makes an order, makes a rule under section 44 or issues a code under section 70.1, the Lieutenant Governor in Council may,

(a) confirm the Board's order, rule or code; or

(b) require the Board to review all or any part of the Board's order, rule or code.

(2) Subsection 34 (2) of the Act is amended by striking out "rule or order" at the end and substituting "order, rule or code".

30. Section 36 of the Act is amended by adding the following subsections:

Deferral or variance accounts

(4.1) If a gas distributor has a deferral or variance account that relates to the commodity of gas, the Board shall, at least once every three months, make an order under this section that determines whether and how amounts recorded in the account shall be reflected in rates.

Same

(4.2) If a gas distributor has a deferral or variance account that does not relate to the commodity of gas, the Board shall, at least once every 12 months, or such shorter period as is prescribed by the regulations, make an order under this section that determines whether and how amounts recorded in the account shall be reflected in rates.

Same

(4.3) An order that determines whether and how amounts recorded in a deferral or variance account shall be reflected in rates shall be made in accordance with the regulations.

Same

(4.4) If an order that determines whether and how amounts recorded in a deferral or variance account shall be reflected in rates is made after the time required by subsection (4.1) or (4.2) and the delay is due in whole or in part to the conduct of a gas distributor, the Board may reduce the amount that is reflected in rates.

Same

(4.5) If an amount recorded in a deferral or variance account of a gas distributor is reflected in rates, the Board shall consider the appropriate number of billing periods over which the amount shall be divided in order to mitigate the impact on consumers.

31. Subsection 38 (4) of the Act is amended by striking out "section 32 of the Expropriations Act" and substituting "section 31 of the Expropriations Act".

32. Subsection 42 (1) of the Act, as amended by the Statutes of Ontario, 2002, chapter 17, Schedule F, Table, is amended by striking out "Subject to the Public Utilities Act and to the Technical Standards and Safety Act, 2000 and the regulations made under the latter Act" at the beginning and substituting "Subject to the Technical Standards and Safety Act, 2000 and the regulations made under that Act".

33. Section 43 of the Act is amended by adding the following subsections:

Same

(1.1) Subsection (1) does not apply with respect to a disposition of securities of a gas transmitter, gas distributor or storage company, or of a corporation that owns securities in a gas transmitter, gas distributor or storage company.

. . . . .

Same

(2.1) Subsection (2) does not apply to,

(a) an underwriter (within the meaning of the Securities Act) who holds the voting securities solely for the purpose of distributing them to the public;

(b) any person or entity who is acting in relation to the voting securities solely in the capacity of an intermediary in the payment of funds or the delivery of securities or both in connection with trades in securities and who provides centralized facilities for the clearing of trades in securities; or

34. (1) Section 44 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, is amended by adding the following subsection:

Quorum

(1.1) For the purposes of this section and section 45, two members of the Board constitute a quorum.

(2) Subsection 44 (2) of the Act is repealed and the following substituted:

Approval, etc., of Board

(2) A rule may require an approval, consent or determination of the Board, with or without a hearing, for any of the matters provided for in the rule.

35. (1) The English version of subsection 45 (1) of the Act is amended by striking out "as the Board may direct" at the end and substituting "as the Board may determine".

(2) The English version of subsection 45 (5) of the Act is amended by striking out "as the Board may direct" at the end and substituting "as the Board may determine".

36. Subsection 48 (3) of the Act is repealed and the following substituted:

Exclusion

(3) This section does not apply to,

(a) a gas distributor acting in accordance with an order of the Board; or

(b) a gas distributor to whom section 36 does not apply pursuant to an exemption set out in the regulations.

37. Sections 50, 51 and 52 of the Act are repealed and the following substituted:

Application for licence

50. (1) A person may apply to the Board for the issuance or renewal of a gas marketing licence.

Regulations

(2) The Lieutenant Governor in Council may make regulations prescribing requirements for a gas marketing licence which, if not met, will result in the refusal to issue or renew a licence.

Licence conditions

51. A licence under this Part may contain such conditions as are appropriate having regard to the objectives of the Board.

Amendment of licence

52. The Board may, on the application of any person, amend a licence if it considers the amendment to be,

(a) necessary to implement a directive issued under section 27 or 27.1; or

(b) in the public interest, having regard to the objectives of the Board.

38. Section 53 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, is repealed and the following substituted:

Cancellation on request

53. The Board may cancel a licence on the request in writing of the licence holder.

39. Sections 54 and 55 of the Act are repealed.

40. Clause (a) of the definition of "designated consumer" in section 56 of the Act, as re-enacted by the Statutes of Ontario, 2002, chapter 23, section 4, is amended by striking out "a municipality" at the beginning and substituting "is a municipality".

41. Section 58 of the Act is repealed.

42. (1) Subsection 59 (2) of the Act is amended by striking out "has failed to meet its obligations" in the portion before clause (a) and substituting "has failed or is likely to fail to meet its obligations".

(2) Subsection 59 (3) of the Act is repealed and the following substituted:

Conduct under cl. (2) (a)

(3) A person who is required under clause (2) (a) to take possession and control of the business of a distributor may, subject to the conditions of the interim licence, carry on, manage and conduct the operations of the business in the name of the distributor, including,

(a) preserving, maintaining and adding to the property of the business;

(b) receiving the income and revenue of the business;

(d) retaining or dismissing employees, consultants, counsel and other assistance for the business;

(e) directing the employees of the business; and

(f) conducting, settling and commencing litigation relating to the business.

Liability

(3.1) A person who is required under clause (2) (a) to take possession and control of the business of a distributor is not liable for anything that results from taking possession and control of the business or otherwise exercising or performing the person's powers and duties under this Act, the interim licence or any order of the Board, unless liability arises from the person's negligence or wilful misconduct.

43. (1) Subsection 60 (1) of the Act is amended by striking out "apply to the director" and substituting "apply to the Board".

(2) Subsection 60 (2) of the Act is repealed.

44. Sections 61 to 65 of the Act are repealed.

45. Section 66 of the Act is amended by striking out "the director or Board" and substituting "the Board".

46. Sections 67, 68 and 69 of the Act are repealed.

47. (1) Clause 70 (2) (d) of the Act is amended by striking out the portion before subclause (i) and substituting the following:

(d) governing the conduct of the licensee, including the conduct of,

. . . . .

(2) Subsections 70 (7) and (8) of the Act are repealed.

48. The Act is amended by adding the following sections:

Codes that may be incorporated as licence conditions

70.1 (1) The Board may issue codes that, with such modifications or exemptions as may be specified by the Board under section 70, may be incorporated by reference as conditions of a licence under that section.

Quorum

(2) For the purposes of this section and section 70.2, two members of the Board constitute a quorum.

Approval, etc., of Board

(3) A code issued under this section may provide that an approval, consent or determination of the Board is required, with or without a hearing, for any of the matters provided for in the code.

Incorporation of standards, etc.

(4) A code issued under this section may incorporate by reference, in whole or in part, any standard, procedure or guideline.

Scope

(5) A code may be general or particular in its application and may be limited as to time or place or both.

Regulations Act

(6) The Regulations Act does not apply to a code issued under this section.

Transition

(7) The following documents issued by the Board, as they read immediately before this section came into force, shall be deemed to be codes issued under this section and the Board may change or amend the codes in accordance with this section and sections 70.2 and 70.3:

1. The Affiliate Relationships Code for Electricity Transmitters and Distributors.

2. The Distribution System Code.

3. The Electricity Retailer Code of Conduct.

4. The Retail Settlement Code.

5. The Transmission System Code.

6. Such other documents as are prescribed by the regulations.

Proposed codes, notice and comment

70.2 (1) The Board shall ensure that notice of every code that it proposes to issue under section 70.1 is given in such manner and to such persons as the Board may determine.

Content of notice

(2) The notice must include,

(a) the proposed code or a summary of the proposed code;

(b) a concise statement of the purpose of the proposed code;

(d) the time limit for making written representations;

(e) if a summary is provided, information about how the entire text of the proposed code may be obtained; and

(f) a description of the anticipated costs and benefits of the proposed code.

Opportunity for comment

(3) On giving notice under subsection (1), the Board shall give a reasonable opportunity to interested persons to make written representations with respect to the proposed code within such reasonable period as the Board considers appropriate.

Exceptions to notice requirement

(4) Notice under subsection (1) is not required if what is proposed is an amendment that does not materially change an existing code.

Notice of changes

(5) If, after considering the submissions, the Board proposes material changes to the proposed code, the Board shall ensure notice of the proposed changes is given in such manner and to such persons as the Board may determine.

Content of notice

(6) The notice must include,

(a) the proposed code with the changes incorporated or a summary of the proposed changes;

(b) a concise statement of the purpose of the changes;

(d) the time limit for making written representations;

(e) if a summary is provided, information about how the entire text of the proposed code may be obtained; and

(f) a description of the anticipated costs and benefits of the proposed code.

Representations re: changes

(7) On giving notice of changes, the Board shall give a reasonable opportunity to interested persons to make written representations with respect to the changes within such reasonable period as the Board considers appropriate.

Issuing the code

(8) If notice under this section is required, the Board may issue the code only at the end of this process and after considering all representations made as a result of that process.

Public inspection

(9) The Board must make the proposed code and the written representations made under this section available for public inspection during normal business hours at the offices of the Board.

Amendment of code

(10) In this section, a code includes an amendment to a code and a revocation of a code.

Effective date and gazette publication

70.3 (1) A code issued under section 70.1 comes into force on the day specified in the code.

Publication

(2) The Board shall publish every code that comes into force in The Ontario Gazette as soon after the code is issued as practicable.

Effect of non-publication

(3) A code that is not published is not effective against a person who has not had actual notice of it.

Effect of publication

(4) Publication of a code in The Ontario Gazette,

(a) is, in the absence of evidence to the contrary, proof of its text and of its issuance; and

(b) shall be deemed to be notice of its contents to every person subject to it or affected by it.

Judicial notice

(5) If a code is published in The Ontario Gazette, judicial notice shall be taken of it, of its content and of its publication.

49. Section 75 of the Act is repealed.

50. Section 76 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, is repealed.

51. (1) Subsections 77 (1) to (4) of the Act are repealed.

(2) Subsection 77 (5) of the Act is amended by striking out "Despite subsection (1), the director may" at the beginning and substituting "The Board may".

52. (1) Subsection 78 (5) of the Act is repealed.

(2) Subsection 78 (5.1) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 8, is amended by striking out "Despite subsection (5)" at the beginning.

(3) Subsection 78 (5.2) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 8, is amended by striking out "Despite subsection (5)" at the beginning.

(4) Section 78 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2 and 2002, chapter 1, Schedule B, section 8, is amended by adding the following subsections:

Deferral or variance accounts

(6.1) If a distributor has a deferral or variance account that relates to the commodity of electricity, the Board shall, at least once every three months, make an order under this section that determines whether and how amounts recorded in the account shall be reflected in rates.

Same

(6.2) If a distributor has a deferral or variance account that does not relate to the commodity of electricity, the Board shall, at least once every 12 months, or such shorter period as is prescribed by the regulations, make an order under this section that determines whether and how amounts recorded in the account shall be reflected in rates.

Same

(6.3) An order that determines whether and how amounts recorded in a deferral or variance account shall be reflected in rates shall be made in accordance with the regulations.

Same

(6.4) If an order that determines whether and how amounts recorded in a deferral or variance account shall be reflected in rates is made after the time required by subsection (6.1) or (6.2) and the delay is due in whole or in part to the conduct of a distributor, the Board may reduce the amount that is reflected in rates.

Same

(6.5) If an amount recorded in a deferral or variance account of a distributor is reflected in rates, the Board shall consider the appropriate number of billing periods over which the amount shall be divided in order to mitigate the impact on consumers.

Same

(6.6) Subsections (6.1), (6.2) and (6.4) do not apply unless section 79.6 has been repealed under section 79.11.

53. Section 84 of the Act is amended by striking out "the director or Board" in the portion before clause (a) and substituting "the Board".

54. Section 85 of the Act is repealed.

55. (1) Subsection 86 (1) of the Act, as re-enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 9, is repealed and the following substituted:

Change in ownership or control of systems

(1) No transmitter or distributor, without first obtaining from the Board an order granting leave, shall,

(a) sell, lease or otherwise dispose of its transmission or distribution system as an entirety or substantially as an entirety;

(b) sell, lease or otherwise dispose of that part of its transmission or distribution system that is necessary in serving the public; or

(2) Section 86 of the Act, as amended by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 9 and 2002, chapter 23, section 4, is amended by adding the following subsections:

Void agreement

(6.1) An amalgamation agreement between the corporations that propose to amalgamate is void if the Board refuses to grant leave under this section, even if the amalgamation agreement has been adopted in accordance with subsection 176 (4) of the Business Corporations Act.

Void certificate

(6.2) A certificate of amalgamation endorsed by the director appointed under section 278 of the Business Corporations Act is void if it is endorsed before leave of the Board for the amalgamation is granted.

56. (1) Subclause 88 (1) (a.1) (v) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 10 and amended by 2002, chapter 23, section 4, is amended by striking out "the Minister of the Environment" and substituting "the Minister".

(2) Subsection 88 (1) of the Act, as amended by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 10 and 2002, chapter 23, section 4, is amended by adding the following clause:

(z.5) prescribing documents for the purpose of paragraph 6 of subsection 70.1 (7).

(3) Subsection 88 (2) of the Act is repealed.

57. (1) Subsection 88.4 (2) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, is amended by adding "or" at the end of clause (a) and by repealing clause (b).

(2) Subsection 88.4 (3) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, is amended by adding "or" at the end of clause (a) and by repealing clause (b).

58. Sections 88.5 to 88.8 of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, are repealed.

59. (1) Subsection 88.9 (3) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, is amended by striking out "the 31st day following" and substituting "the 61st day following".

(2) Subsection 88.9 (4) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, is repealed and the following substituted:

Consumer to take steps to reaffirm

(4) A consumer may reaffirm a contract only by taking such steps as are prescribed by regulation.

Restriction on reaffirmation

(4.1) Unless authorized by regulation, the consumer may not reaffirm the contract under subsection (4) before the 10th day after a written copy of the contract is delivered to the consumer in accordance with subsection (1).

(3) Subsection 88.9 (6) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, is amended by striking out "the 31st day following" and substituting "the 61st day following".

(4) Section 88.9 of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, is amended by adding the following subsections:

Application of subss. (3) to (6) and cl. (10) (b) and (c)

(16) Subsections (3) to (6) and clauses (10) (b) and (c) do not apply to the following contracts:

1. A contract negotiated and entered into as a result of a consumer contacting a gas marketer or retailer of electricity, unless the contact occurs within 30 days after the gas marketer or retailer of electricity contacts the consumer.

2. A contract entered into by a consumer's response to a direct mail solicitation from a gas marketer or retailer of electricity.

3. An internet agreement within the meaning of Part IV of the Consumer Protection Act, 2002.

Same

(17) For the purpose of paragraph 1 of subsection (16), a gas marketer or retailer of electricity shall be deemed not to have contacted a consumer if the only contact by the gas marketer or retailer of electricity is through the dissemination of an advertisement that is seen or heard by the consumer.

60. Clause 88.10 (1) (b) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, is repealed and the following substituted:

(b) in the case of the retailing of electricity by a retailer of electricity, contain such information as may be required by a code issued under section 70.1, presented in the manner, if any, required by the code, if a condition of a licence requires the retailer to comply with the code; and

61. Sections 88.13 and 88.14 of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 11, are repealed.

62. (1) The definitions of "hydrocarbon distribution line" and "hydrocarbon transmission line" in section 89 of the Act are repealed.

(2) Section 89 of the Act is amended by adding the following definition:

"hydrocarbon line" means a pipe line carrying any hydrocarbon, other than a pipe line within an oil refinery, oil or petroleum storage depot, chemical processing plant or pipe line terminal or station; ("ligne pour hydrocarbures")

(3) The definition of "work" in section 89 of the Act is amended by striking out "hydrocarbon transmission line, hydrocarbon distribution line" and substituting "hydrocarbon line".

63. (1) Subsection 90 (1) of the Act is repealed and the following substituted:

Leave to construct hydrocarbon line

(1) No person shall construct a hydrocarbon line without first obtaining from the Board an order granting leave to construct the hydrocarbon line if,

(a) the proposed hydrocarbon line is more than 20 kilometres in length;

(b) the proposed hydrocarbon line is projected to cost more than the amount prescribed by the regulations;

(i) uses pipe that has a nominal pipe size of 12 inches or more, and

(ii) has an operating pressure of 2,000 kilopascals or more; or

(d) criteria prescribed by the regulations are met.

(2) Subsection 90 (2) of the Act is amended by striking out "hydrocarbon transmission line" and substituting "hydrocarbon line".

64. Section 91 of the Act is repealed and the following substituted:

Application for leave to construct hydrocarbon line
or station

91. Any person may, before constructing a hydrocarbon line to which section 90 does not apply or a station, apply to the Board for an order granting leave to construct the hydrocarbon line or station.

65. Section 93 of the Act is repealed.

66. Section 96 of the Act is amended by adding the following subsection:

Applications under s. 92

(2) In an application under section 92, the Board shall only consider the interests of consumers with respect to prices and the reliability and quality of electricity service when, under subsection (1), it considers whether the construction, expansion or reinforcement of the electricity transmission line or electricity distribution line, or the making of the interconnection, is in the public interest.

67. Subsection 99 (4) of the Act is repealed.

68. Section 105 of the Act is repealed.

69. Section 106 of the Act, as amended by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 12, is repealed and the following substituted:

Inspectors

106. The Board's management committee may appoint persons to exercise and perform the powers and duties of an inspector under this Part.

70. Section 107 of the Act is repealed and the following substituted:

Power to require documents, etc.

107. (1) An inspector may, for the purposes of this Act and any other Act that gives powers or duties to the Board, require any of the following persons to provide documents, records or information:

1. A person required to have a licence under section 48 or 57.

2. A gas distributor, gas transmitter or gas storage company or an affiliate of a gas transmitter, gas distributor or gas storage company.

3. An affiliate of a person required to have a licence under clause 57 (a) or (b).

Application of subs. (1)

(2) Subsection (1) only applies to documents, records and information that relate to the following activities:

1. Activities for which a licence is required under section 48 or 57.

2. Gas distribution, gas transmission or gas storage, including the sale of gas by a gas distributor.

3. Transactions between a gas distributor, gas transmitter or gas storage company and its affiliates.

4. Transactions between a person required to have a licence under clause 57 (a) or (b) and its affiliates.

71. (1) Subsection 108 (1) of the Act, as amended by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 13, is repealed and the following substituted:

Inspections

(1) An inspector may, for the purposes of this Act and any other Act that gives powers or duties to the Board, without a warrant or court order, at any reasonable time and with any reasonable assistance, conduct inspections and, for that purpose, the inspector may,

(a) enter any place that the inspector reasonably believes is likely to contain documents or records related to any of the activities referred to in subsection 107 (2); or

(b) enter any place where anything is being done that requires an order of the Board granting leave under Part VI.

(2) Subsection 108 (2) of the Act is repealed and the following substituted:

Same

(2) During an inspection under subsection (1), an inspector may,

(a) examine, record or copy any document or record, in any form, by any method;

(b) require any document or record that is required to be kept under this Act to be provided, in any form, and require any other document or record related to the purposes of the inspection to be provided, in any form;

(c) remove from a place documents or records, in any form, that are provided under clause (b) for the purpose of making copies;

(d) examine anything that is being done that requires an order of the Board granting leave under Part VI;

(e) make reasonable inquiries of any person, orally or in writing.

(3) Subsection 108 (3) of the Act is amended by striking out "the energy returns officer and a person authorized to exercise the powers under subsection (1)" and substituting "the inspector".

(4) Subsections 108 (4) and (5) of the Act are repealed and the following substituted:

Duty to assist

(4) In exercising powers under this section, the inspector may require a person described in subsection 107 (1) or its officers, directors or employees to give all reasonable assistance to the inspector.

Copying

(5) The inspector may, on giving a receipt, remove any document or record described in subsection (2) for the purpose of making copies or extracts and shall promptly return the document or record and obtain a written acknowledgment of its return.

(5) Subsection 108 (6) of the Act is amended by striking out "the energy returns officer or a person exercising the powers under this section" and substituting "the inspector".

(6) Subsection 108 (9) of the Act is repealed and the following substituted:

Warrant

(9) A justice of the peace may issue a warrant authorizing a person named in the warrant to enter a place identified in the warrant and exercise the powers given under this section if the justice of the peace is satisfied by information on oath that,

(a) there is reasonable ground to believe that,

(i) there are documents or records located in the place that are relevant to the carrying out of an inspection, or

(ii) anything is being done in the place that requires an order of the Board granting leave under Part VI; and

(b) entry to the place has been or will be denied.

72. Section 109 of the Act is amended by striking out "The energy returns officer" at the beginning and substituting "An inspector".

73. (1) Subsection 110 (1) of the Act is amended by striking out "The energy returns officer, any deputy officer, any person authorized by the chair of the Board in writing under section 108 and any inspector" at the beginning and substituting "An inspector".

(2) Subsection 110 (2) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, is repealed and the following substituted:

No privilege

(2) No document, record or copy thereof obtained by an inspector under section 107 or 108, and no information obtained by an inspector under section 107, shall be excluded as evidence on the ground of privilege in any Board proceeding.

(3) Subsection 110 (3) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, and subsection 110 (4) of the Act are repealed and the following substituted:

Notice

(3) No document, record or copy thereof obtained by an inspector under section 107 or 108, and no information obtained by an inspector under section 107, shall be introduced in evidence in a Board proceeding unless,

(a) the Board gives the owner of the document or record or the person who provided the information notice that the inspector intends to introduce the evidence; and

(b) the Board gives the owner of the document or record or the person who provided the information an opportunity to make representations with respect to the intended introduction of that evidence.

74. Section 111 of the Act is repealed and the following substituted:

Confidentiality

111. (1) All documents and records obtained by an inspector under section 107 or 108, and information obtained by an inspector under section 107, are confidential and shall not be disclosed to any person other than a member of the Board or an employee of the Board except,

(a) as may be required in connection with the administration of this Act or any other Act that gives powers or duties to the Board or in any proceeding under this or any other Act that gives powers or duties to the Board;

(b) to counsel for the Board or an employee of the Board; or

Same

(2) If any document, record or information obtained by an inspector under section 107 or 108 is admitted in evidence in a proceeding under this Act or any other Act that gives powers or duties to the Board, the Board may rule on whether the document, record or information is to be kept confidential.

75. Section 112 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, is repealed and the following substituted:

Evidence

112. No document, record or information obtained by an inspector under this Part is admissible in evidence in any proceeding except a proceeding in respect of an order of the Board or a proceeding in respect of an offence under section 126.

76. The Act is amended by adding the following Part:

PART VII.1
COMPLIANCE

Definition: "enforceable provision"

112.1 In this Part,

"enforceable provision" means,

(a) a provision of this Act or the regulations,

(b) section 26, 27, 28, 29 or 31 of the Electricity Act, 1998, or any other provision of that Act that is prescribed by the regulations,

(d) a provision of the rules made by the Board under section 44,

(e) a provision of an order of the Board, or

(f) a provision of an assurance of voluntary compliance that is given to the Board under section 112.7 or that was entered into under section 88.8 before that section was repealed.

Procedure for orders under ss. 112.3 to 112.5

112.2 (1) An order under section 112.3, 112.4 or 112.5 may only be made on the Board's own motion.

Notice

(2) The Board shall give written notice to a person that it intends to make an order under section 112.3, 112.4 or 112.5.

Contents of notice

(3) Notice under subsection (2) shall set out the reasons for the proposed order and shall advise the person that, within 15 days after receiving the notice, the person may give notice requiring the Board to hold a hearing.

Hearing

(4) A person to whom notice is given under subsection (2) may, within 15 days after receiving the notice, give notice to the Board requiring the Board to hold a hearing.

If hearing not required

(5) If no notice requiring a hearing is given within the time permitted by subsection (4), the Board may make an order.

Interim orders under s. 112.3

(6) An interim order of the Board may be made under section 112.3, with or without a hearing, and may take effect before the time for giving notice under subsection (4) has expired.

Action required to comply, etc.

112.3 (1) If the Board is satisfied that a person has contravened or is likely to contravene an enforceable provision, the Board may make an order requiring the person to comply with the enforceable provision and to take such action as the Board may specify to,

(a) remedy a contravention that has occurred; or

(b) prevent a contravention or further contravention of the enforceable provision.

Application

(2) This section applies to contraventions that occur before or after this section comes into force.

Suspension or revocation of licences

112.4 (1) If the Board is satisfied that a person who holds a licence under Part IV or V has contravened an enforceable provision, the Board may make an order suspending or revoking the licence.

Application

(2) This section applies to contraventions that occur before or after this section comes into force.

Administrative penalties

112.5 (1) If the Board is satisfied that a person has contravened an enforceable provision, the Board may, subject to the regulations under subsection (5), make an order requiring a person to pay an administrative penalty in the amount set out in the order for each day or part of a day on which the contravention occurred or continues.

Limitation

(2) The Board shall not make an order under subsection (1) in respect of a contravention later than two years after the later of,

(a) the day the contravention occurred; and

(b) the day on which the evidence of the contravention first came to the attention of the Board.

Amount of penalty, limited

(3) An administrative penalty in respect of a contravention shall not exceed $20,000 for each day or part of a day on which the contravention occurs or continues.

No offence to be charged if penalty is paid

(4) If a person who is required by an order under subsection (1) to pay an administrative penalty in respect of a contravention pays the amount of the penalty in accordance with the order, the person shall not be charged with an offence in respect of the contravention.

Regulations

(5) The Lieutenant Governor in Council may make regulations,

(a) specifying types of contraventions in respect of which an order may not be made under this section and circumstances when the Board shall not make an order under this section;

(b) governing the determination of the amounts of administrative penalties, including the criteria to be considered and including providing for different amounts depending on when an administrative penalty is paid;

(c) respecting any other matter necessary for the administration of the system of administrative penalties provided for by this section.

General or particular

(6) A regulation under subsection (5) may be general or particular in its application.

Application

(7) Subject to subsection (8), this section applies to contraventions that occur before or after this section comes into force.

Same

(8) This section does not apply to a contravention that occurred before this section came into force unless, at the time it occurred, section 125.2 was in force and a notice could have been issued in respect of the contravention under that section.

Restraining orders

112.6 The Board may apply to the Superior Court of Justice for an order directing a person not to contravene an enforceable provision, and the court may make that order or such other order as the court considers just.

Voluntary compliance

112.7 (1) A person may give the Board a written assurance of voluntary compliance,

(a) to refrain from contravening an enforceable provision specified in the assurance;

(b) to take such action as is specified in the assurance to remedy a contravention of an enforceable provision; or

Force and effect

(2) An assurance of voluntary compliance has the same force and effect as an order of the Board.

Public record

(3) The Board shall maintain a public record of assurances of voluntary compliance given under this section.

77. Section 121 of the Act is repealed and the following substituted:

Rules

121. The Board's management committee may make rules,

(a) governing the practices of employees to whom powers and duties are delegated under section 6;

(b) governing the making of rules under section 44 and the issuance of codes under section 70.1.

78. Section 122 of the Act is repealed and the following substituted:

Provincial offences officers

122. For the purposes of the Provincial Offences Act, the Board's management committee may designate in writing any person or class of persons as a provincial offences officer, but the designation only applies in respect of offences under this Act.

79. Section 123 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, is repealed.

80. Section 124 of the Act is repealed.

81. Section 125 of the Act is repealed and the following substituted:

Obstruction

125. No person shall obstruct an inspector appointed under section 106 or a provincial offences officer designated under section 122 or knowingly withhold or conceal from that person or destroy any relevant document, record or information required to be provided by that person.

82. Section 125.1 of the Act, as enacted by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2 and amended by 2001, chapter 9, Schedule F, section 2 and 2002, chapter 1, Schedule B, section 14, is repealed and the following substituted:

Method of giving notice

125.1 Subsections 18 (2) to (5) and clause 24 (1) (a) of the Statutory Powers Procedure Act apply, with necessary modifications, to all notices given by the Board, whether or not a hearing is held.

83. Section 125.2 of the Act, as enacted by the Statutes of Ontario, 2001, chapter 9, Schedule F, section 2 and amended by 2002, chapter 1, Schedule B, section 15, is repealed.

84. (1) Clauses 126 (1) (c.1) and (c.2) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 16, are repealed and the following substituted:

(c.1) fails to comply with an assurance of voluntary compliance given under section 112.7;

(c.2) fails to comply with an assurance of voluntary compliance entered into under section 88.8 before that section was repealed; or

(2) Clause 126 (1) (d) of the Act is amended by striking out "a rule made under Part III" and substituting "a rule made under section 44".

(3) Subsection 126 (3) of the Act is amended by,

(a) striking out "$25,000" and substituting "$50,000"; and

(b) striking out "$75,000" and substituting "$150,000".

(4) Subsection 126 (4) of the Act is amended by,

(a) striking out "$100,000" and substituting "$250,000"; and

(b) striking out "$250,000" and substituting "$1,000,000".

(5) Section 126 of the Act, as amended by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 16 and 2002, chapter 23, section 4, is amended by adding the following subsection:

Increasing fine by amount of monetary benefit

(4.1) Despite the maximum fines set out in subsections (3) and (4), the court that convicts a person of an offence under subsection (1) or (2) may increase the fine imposed on the person by an amount equal to the monetary benefit that was acquired by, or that accrued to, the person as a result of the commission of the offence.

85. (1) Clause 126.1 (1) (b) of the Act, as enacted by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, is amended by striking out "or the director" at the end.

(2) Subsection 126.1 (1) of the Act, as enacted by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, is amended by striking out the portion after clause (d) and substituting the following:

purporting to be certified by the secretary of the Board, is, without proof of the office or signature of the secretary, admissible in evidence in any prosecution or other proceeding as proof, in the absence of evidence to the contrary, of the facts stated.

(3) Subsection 126.1 (2) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 17, is repealed and the following substituted:

Certificate of assurance of voluntary compliance

(2) A copy of an assurance of voluntary compliance purporting to be certified by the secretary of the Board is, without proof of the office or signature of the secretary, admissible in evidence in any prosecution or other proceeding as proof, in the absence of evidence to the contrary, of the facts stated.

86. (1) Clause 127 (1) (d) of the Act is repealed.

(2) Clause 127 (1) (h) of the Act is repealed and the following substituted:

(h) delegating all or part of the powers or duties of the Board with respect to the issuance or renewal of licences under Part IV or V to a self-regulatory organization on such conditions as the Lieutenant Governor in Council considers appropriate;

(3) Clause 127 (1) (j.3) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 18, is repealed.

(4) Clause 127 (1) (j.5) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 1, Schedule B, section 18, is repealed.

(5) Subsection 127 (1) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, 2001, chapter 9, Schedule F, section 2 and 2002, chapter 1, Schedule B, section 18, is amended by adding the following clauses:

(j.8.1) prescribing circumstances in which a consumer may reaffirm a contract under subsection 88.9 (4) before the 10th day after a written copy of the contract is delivered to the consumer in accordance with subsection 88.9 (1);

. . . . .

(j.11) prescribing rights, powers or privileges under subsection 4 (2) for the purpose of clause 4.11 (e);

(j.12) prescribing provisions for the purpose of paragraph 4 of subsection 4.2 (6);

(j.13) prescribing classes of contracts for the purpose of clause 4.11 (d);

(j.14) prescribing powers or duties for the purpose of paragraph 7 of subsection 6 (2);

(j.15) prescribing an amount of money for the purpose of clause 90 (1) (b);

(j.16) prescribing criteria for the purpose of clause 90 (1) (d);

(j.17) prescribing provisions of the Electricity Act, 1998 for the purpose of clause (b) of the definition of "enforceable provision" in section 112.1;

(j.18) prescribing deferral or variance accounts as deferral or variance accounts that relate to the commodity of gas for the purpose of subsections 36 (4.1) and (4.2) or to the commodity of electricity for the purpose of subsections 78 (6.1) and (6.2), or prescribing rules for determining if a deferral or variance account relates to the commodity of gas for the purpose of subsections 36 (4.1) and (4.2) or to the commodity of electricity for the purpose of subsections 78 (6.1) and (6.2);

(j.19) prescribing periods of time for the purpose of subsections 36 (4.2) and 78 (6.2);

(j.20) governing the making of orders that determine whether and how amounts recorded in deferral or variance accounts shall be reflected in rates for the purpose of sections 36 and 78;

(j.21) governing the awarding of costs under section 30 when section 22.1 is not complied with;

(6) Section 127 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule D, section 2, 2001, chapter 9, Schedule F, section 2 and 2002, chapter 1, Schedule B, section 18, is amended by adding the following subsection:

Delegation to self-regulatory organization

(4) If a regulation is made under clause (1) (h) delegating powers or duties of the Board to a self-regulatory organization, subsections 6 (4) to (9) and sections 7 and 8 apply, with necessary modifications.

87. The Act is amended by adding the following section:

Reports on Board effectiveness

128.1 (1) Not later than the fifth anniversary of the day this section comes into force, and not later than every fifth anniversary thereafter, the Minister shall cause a report to be prepared and submitted to the Minister on the Board's effectiveness in meeting the objectives set out in sections 1 and 2.

Tabling

(2) The Minister shall submit the report to the Lieutenant Governor in Council and shall then table the report in the Assembly.

88. Section 129 of the Act is repealed.

89. Section 130 of the Act is amended by striking out "Part III" at the end and substituting "that section".

90. Section 132 of the Act is repealed and the following substituted:

Transition, director of licensing

132. (1) A licence issued by the Board's director of licensing before this section comes into force shall be deemed to be a licence issued by the Board.

Same

(2) An order made by the Board's director of licensing before this section comes into force shall be deemed to be an order made by the Board.

Same

(3) Any matter pending before the Board's director of licensing when this section comes into force is continued before the Board, subject to the directions of the Board's management committee.

Commencement and Short Title

Commencement

91. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

92. The short title of this Act is the Ontario Energy Board Consumer Protection and Governance Act, 2003.

EXPLANATORY NOTE

This Explanatory Note was written as a reader's aid to Bill 23 and does not form part of the law. Bill 23 has been enacted as Chapter 3 of the Statutes of Ontario, 2003.

The Bill amends the Municipal Franchises Act and the Ontario Energy Board Act, 1998.

Municipal Franchises Act

Section 11 of the Municipal Franchises Act is repealed because section 33 of the Ontario Energy Board Act, 1998 provides for appeals to the Divisional Court from decisions of the Ontario Energy Board.

Ontario Energy Board Act, 1998

Amendments to sections 1 and 2 of the Ontario Energy Board Act, 1998 amend the objectives of the Ontario Energy Board to include promoting communications within the gas and electricity industries, educating consumers and protecting the interests of consumers with respect to prices, reliability and quality of gas service.

Section 4 of the Act is amended to continue the Board as an agency of the Crown, but as a corporation with the powers of a natural person for the purposes of carrying out its statutory duties.

A new section 4.2 of the Act provides for the establishment of a management committee, composed of the chair of the Board and two vice-chairs. The committee is responsible for managing the activities of the Board, including budgeting, allocation of resources and the making of by-laws governing the operation of the Board.

A new section 4.4 of the Act provides for the establishment of an advisory committee to provide advice to the Board's management committee and to perform such other duties as are assigned under the Act. The Minister will appoint members to the advisory committee.

A new section 4.6 of the Act provides that, every three years, the Minister and the chair of the Board must enter into a memorandum of understanding that sets out the roles, responsibilities and accountability relationships between the chair, the management committee and the Minister. The memorandum must also set out details of obligations on the management committee to provide statements of priorities and regulatory calendars, to establish performance standards for the Board and to establish a pay for performance plan for full-time Board members that links bonus pay to the achievement of performance standards. The memorandum of understanding must also contain details regarding the establishment of rules governing entitlement to interim and final awards of costs for organizations representing consumers.

New sections 4.8 and 4.9 of the Act obligate the Board to prepare annual financial statements that may be audited by the Provincial Auditor and to prepare an annual report that the Minister must lay before the Legislative Assembly.

A new section 4.10 of the Act sets out the by-law making powers of the Board's management committee and provides that by-laws governing the remuneration and benefits of the members of the Board must be delivered to the Minister, who has the power to accept, reject or return the by-laws for further consideration, before they become effective.

A new section 4.13 of the Act provides that revenues from the exercise of the Board's powers or duties do not form part of the Consolidated Revenue Fund but shall be applied to the carrying out of the powers conferred and duties imposed on the Board. The Board's revenue includes fees, assessments, administrative penalties and costs payable to the Board.

A new section 6 of the Act authorizes the Board's management committee to delegate powers and duties of the Board to an employee of the Board. The employee may exercise delegated powers with or without holding a hearing, but orders made by employees are subject to appeal to the Board by persons directly affected by the orders.

A new section 22.1 of the Act requires the Board to issue an order that embodies its final decision in a proceeding within 60 days of making the final decision. If this provision is not complied with, the validity of the decision is not affected. However, any award of costs in the proceeding could be subject to regulations made by the Lieutenant Governor in Council.

Amendments to section 30 of the Act clarify the Board's powers to award interim and final awards of costs.

Amendments to subsections 33 (1) and 34 (1) of the Act add the issuance of a code under section 70.1 of the Act to the list of powers exercised by the Board that may be appealed to the Divisional Court or that may be the subject of a petition to the Lieutenant Governor in Council.

New subsections 36 (4.1) to (4.5) of the Act require the Board, on a regular basis, to order whether and how amounts recorded in deferral or variance accounts of gas distributors shall be reflected in rates. The Board must consider the appropriate number of billing periods over which these amounts shall be divided in order to mitigate the impact on consumers.

Amendments to sections 50 and 51 of the Act provide for applications for the issuance, renewal or amendment of a gas marketer licence to be made to the Board, reflecting other amendments to the Act that remove references to the director of licensing. Sections 54 and 55 of the Act are repealed.

Amendments to subsection 59 (2) of the Act authorize the Board to appoint an interim licensee when the Board determines that a licensed distributor is likely to fail to meet its obligations under the Act. Amendments to subsection 59 (3) of the Act clarify and expand the powers of the interim licensee to carry out the distributor's business. A new subsection 59 (3.1) absolves the interim licensee from liability for exercising powers or duties granted under the Act, the interim licence or an order of the Board unless the liability arises from the negligence or wilful misconduct of the interim licensee.

Section 60 of the Act is amended to provide for applications for the issuance or renewal of a licence to undertake an activity listed in section 57 of the Act to be made to the Board. Sections 61 to 65 and 67 to 69 of the Act are also repealed as part of the amendments that remove references to the director of licensing.

A new section 70.1 of the Act allows the Board to issue codes that may be incorporated, with or without modification, as conditions of a licence. Under subsection 70.1 (7), certain documents already issued by the Board are deemed to be codes. The new section 70.1, and sections 70.2 and 70.3, are based on sections 44, 45 and 46 of the Act.

New subsections 78 (6.1) to (6.6) of the Act require the Board, on a regular basis, to order whether and how amounts recorded in deferral or variance accounts of electricity distributors shall be reflected in rates. The Board must consider the appropriate number of billing periods over which these amounts shall be divided in order to mitigate the impact on consumers.

Amendments to section 88.9 of the Act extend the time period during which a consumer can reaffirm a contract with a gas marketer or retailer of electricity, so that reaffirmation can occur anytime between the 10^th day and 61^st day after a written copy of the contract is delivered to the consumer. The ability to reaffirm before the 10^th day may be permitted by regulation. A new subsection 88.9 (16) of the Act provides that certain contracts are not subject to the reaffirmation requirement.

Section 90 of the Act is amended to provide that Board approval is required for a hydrocarbon line only if the line meets criteria specified in that section.

A new subsection 96 (2) of the Act provides that, when the Board is determining whether an application for leave to construct, expand or reinforce an electricity transmission or distribution line or to make an interconnection under section 92 is in the public interest, the Board shall consider only the interests of consumers with respect to prices and the reliability and quality of electricity service.

Sections 106 to 112 of the Act are amended to remove references to the energy returns officer. The new section 106 of the Act empowers the Board's management committee to appoint inspectors. Section 107 gives inspectors the power to require documents, records or information from certain gas and electricity market participants. Section 108 gives inspectors the power to enter a place in which he or she reasonably believes documents or records may be located that are related to certain gas or electricity market activities, including activities for which a licence is required under section 48 or 57 of the Act. An inspector may also enter a place in which anything is being done that requires an order of the Board under Part VI of the Act.

The Act is amended to add a new Part VII.1 to deal with compliance with the Act and with other obligations. The new Part consolidates and replaces various compliance powers of the Board and the director of licensing that were formerly set out in other Parts of the Act. The new section 112.1 lists the "enforceable provisions" with respect to which the Board may take enforcement action. The new section 112.2 sets out the procedure applicable to Board compliance orders. The Board is required to give notice of its intention to make an order against a person under section 112.3, 112.4 or 112.5. The person may then, within 15 days of receiving the notice, give notice to the Board requiring it to hold a hearing.

The new section 112.3 of the Act authorizes the Board to order a person to comply with an enforceable provision and to take action to remedy a contravention or to prevent a contravention or further contravention. The new section 112.4 authorizes the Board to suspend or revoke a licence if a person has contravened an enforceable provision. The new section 112.5 allows the Board to issue an administrative penalty if a person has contravened an enforceable provision. The maximum amount of an administrative penalty is raised from $10,000 per day on which a contravention occurs or continues to $20,000 per day.

The new section 112.6 authorizes the Board to apply to the Superior Court of Justice for a restraining order directing a person not to contravene an enforceable provision. The new section 112.7 provides for a person to give the Board a written assurance of voluntary compliance with an enforceable provision and the written assurance has the same force and effect as an order of the Board.

Subsections 126 (3) and (4) of the Act are amended to increase the fines the courts may impose on a person convicted of an offence under the Act.

A new section 128.1 of the Act requires that, every five years, the Minister must cause a report to be prepared on the Board's effectiveness in meeting its objectives under sections 1 and 2 of the Act.

[37] Bill 23 Original (PDF)

Bill 23 2003

An Act to amend
the Ontario Energy Board Act, 1998
and the Municipal Franchises Act
in respect of consumer protection,
the governance of the
Ontario Energy Board
and other matters