I remain unconvinced that he has the jurisdictional authority to do this, and I am also concerned that a distracted federal government won't challenge it, thus further emboldening provinces to take unilateral actions outside of their authority.
Replies
With all of this flip-flopping on trumps end, what if this was enacted before his tariffs actually took place? Would this be breaking the agreement first, hence opening the door to have legal repercussions?
mar 10, 2025, 7:41 pm • 1 0 • view
Ontario absolutely has the right to regulate it's electrical production. Now does it have a right to enact official "export tariffs" no, you're right, they don't. But there's nothing saying certain customers can't get differentiated pricing. For instance, hydro One and Ottawa have different rates
mar 10, 2025, 4:36 pm • 6 0 • view
Are they calling it a tariff or a surcharge - maybe that would make a difference in who has authority?
mar 10, 2025, 7:53 pm • 1 0 • view
That's the point Dale is alluding to. No, Ford can't pass "tariffs." But the province regulates electrical pricing/production. So the province absolutely can charge more for exports of electricity for literally any reason. Ford can't however put a "tariff" on things the province doesn't regulate
mar 10, 2025, 8:30 pm • 2 0 • view
That's how I see it. I'm sure that Ford knows how to use the system.
mar 10, 2025, 8:36 pm • 0 0 • view
I wouldn't give Ford that much credit. Just because he might be right here doesn't mean he knows what he's doing in general. :-)
mar 10, 2025, 8:36 pm • 3 0 • view
But he has lots of advisers.
mar 10, 2025, 8:39 pm • 1 0 • view
This is not production. It's cross-border trade.
mar 10, 2025, 7:26 pm • 1 0 • view
I mean it boils down to, if I run a hot dog stand can I charge Americans twice as much to buy my hot dogs as Canadians? If so, then yes, Ford can absolutely jack up rates of electricity destined to any market (domestic or foreign) since the province regulates electrical production and pricing.
mar 10, 2025, 8:28 pm • 1 0 • view
2/ For instance, Ford can't force me to upcharge Americans at my hot dog stand since Ford doesn't regulate pricing at hot dog stands. So no he can't call it a "tariff" but he can absolutely charge differentiated rates for different customers.
mar 10, 2025, 8:28 pm • 1 0 • view
Not sure feds are distracted as much as turning a blind eye.
mar 10, 2025, 8:50 pm • 0 0 • view
Excellent analysis!
mar 10, 2025, 6:09 pm • 0 0 • view
“Unilateral actions outside authority” - why do you believe the Feds aren’t onside with this?
mar 10, 2025, 4:40 pm • 1 0 • view
I would think that the provinces have been given some authority by the Feds to put these tariffs in place. PM & Premiers were meeting regarding this issue.
mar 10, 2025, 4:42 pm • 2 0 • view
So you think Ford and Trudeau haven’t done any homework on this ? You’re smarter? Or your homework lead to different conclusions. ???
mar 11, 2025, 2:44 am • 0 0 • view
I'm unconvinced that it's possible to turn off the power to the States. It's not like there's a switch.
mar 10, 2025, 9:52 pm • 0 0 • view
The measure is being done as an amendment to the IESO market rules. Hence, in legal terms, it isn't a tax or a tariff, but a surcharge that must be paid by US consumers of Ontario electricity. This is very likely constitutional.
mar 10, 2025, 5:08 pm • 10 0 • view
The only question would be whether the Electricity Act, 1998 authorizes the making of the regulation that in turn made it possible for the IESO to amend its market rules on an urgent basis and/or otherwise permits the IESO to amend its market rules in this manner.
mar 10, 2025, 5:10 pm • 3 0 • view
Any failure, though, of the enabling statute would just necessitate an amendment to the Electricity Act, 1998. A successful challenge (and I am not saying a challenge would succeed) would hence delay, not prevent, the surcharge.
mar 10, 2025, 5:13 pm • 3 0 • view
I just don't see how this doesn't run afoul of Section 92 trade powers, or the fact that cross-border electricity trade is regulated by the CER.
mar 10, 2025, 7:25 pm • 2 0 • view
As the operator of the Ontario electricity grid, IESO sets fees for access to that grid, including interconnections. So, at a basic level, this is just a change in the fee structure by increasing the fees charged when access is for sale to the USA.
mar 10, 2025, 7:31 pm • 4 0 • view
I believe you, but I am still dubious.
mar 10, 2025, 7:32 pm • 2 0 • view
A useful phrase for much of Canadian politics and regulatory matters! 🤣
mar 10, 2025, 7:47 pm • 1 0 • view
TBF, a clever lawyer may find a way to make a constitutional case out of this. So, while I (somewhat biased) think my reasoning is sound, it should nevertheless be caveated. That being said, the hope is that the trade war will be over before any legal challenge can be heard, much less decided.
mar 10, 2025, 7:43 pm • 0 0 • view
It's more of his threat to turn off electricity that has me wondering.
mar 10, 2025, 7:39 pm • 0 0 • view
The decision whether or not to contract to sell electricity would be within provincial jurisdiction. Ontario is not (constitutionally) required to use the intertie just because the intertie exists.
mar 10, 2025, 7:45 pm • 1 0 • view
So, this is somewhat akin to a decision to price a product differently depending on the customer, which falls under the property and civil rights power of provinces. US customers are, of course, free to *not* buy the electricity if they find the price too high.
mar 10, 2025, 7:35 pm • 2 0 • view
So, I expect the issues to consider are whether this is offside our trade commitments (noting that proposed US tariffs are most certainly offside) and whether the existing statutory authority allows for this pricing. I don't expect constitutional concerns to be a factor.
mar 10, 2025, 7:38 pm • 4 0 • view
I think I agree with all of this. But for fun hypotheticals, I think it's possible to *imagine* a valid federal law regulating cross-border trade & commerce that conflicted with a decision by a province to impose differential treatment on trade/pricing, and where federal paramountcy would win out.
mar 10, 2025, 7:50 pm • 6 0 • view
Fair point. Currently, there is essentially an absence of federal law relating to this. There likely is scope for federal legislation to be made on this point, which could then lead to paramountcy making the provincial measure inoperative to the extent of the conflict.
mar 10, 2025, 7:55 pm • 1 0 • view
Constitutional law aside, what evidence do we have that this decision by Ontario was done in consultation with Ottawa or other provincial governments? If this is done in coordination, fine. This also creates a precedent that may embolden calls to put a tax/surcharge on oil and gas. ...
mar 10, 2025, 8:48 pm • 1 0 • view