The appellant, a heavy electricity user, challenged the constitutionality of the Global Adjustment component of Ontario's electricity pricing formula, which funds the Feed-in Tariff (FIT) program.
The appellant argued that the FIT program component was a colourable attempt to disguise a tax as a regulatory charge, designed to provide economic stimulus and subsidies to preferred communities (aboriginal peoples, co-operatives, and municipalities) rather than to regulate electricity generation.
The motion judge struck the applications, finding the Global Adjustment was a valid regulatory charge within a closed system.
The Court of Appeal allowed the appeal, finding the appellant's colourability challenge was sufficiently plausible that the applications should not have been dismissed on a pleadings motion and should proceed to a full hearing on the merits.
