Editorials

Editorial

Authors:  and * | October 2025 – Volume 13, Issue 3, 2025

As we enter the Summer of 2025, the hurried pace of change continues, driven by geopolitical events and Canadians’ high expectations for the newly elected Carney government. The Prime Minister hosted a First Ministers’ Meeting on June 2 in Saskatoon,[1] the focus of which was “to build a stronger, more competitive, and more resilient Canadian economy,” including the removal of trade barriers, advance major projects of national interest, and tabling legislation to make Canada stronger at home and abroad.[2]

The need for this unified response to Canada’s changed relationship with the United States and the imperative for new trade and security relationships was on full display at the 51st G7 Summit, held on June 15–17 in Kananaskis, Alberta. Despite an objective of “building stronger economies by making communities safer and the world more secure, promoting energy security and accelerating the digital transition, as well as fostering partnerships of the future,”[3] questions relating to “the G7’s utility and future in a world where Trump is President of the United States”[4] remained unanswered and the results that were achieved “pale in comparison to what did not happen.”[5]

The tabling (June 6, 2025) and Royal Assent (June 26, 2025) of Bill C-5 “An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act,”[6] is the first and arguably most significant step taken by the new government to meet the nation’s pressing energy and infrastructure challenges and its aspirational goals. Part 1 of Bill C-5 enacts the Free Trade and Labour Mobility in Canada Act, which “establishes a statutory framework to remove federal barriers to the interprovincial trade of goods and services and to improve labour mobility within Canada.”[7] Part 2 enacts the Building Canada Act, the discussion of which features prominently in this edition of Energy Regulation Quarterly (“ERQ”).

This edition of ERQ begins with a short update to the article written by Daliana Coban, Daniel Gralnick and Ian Thomson, all of Torys, LLP published in the previous issue of ERQ. The Addendum to “Connecting data centres in Ontario: Key considerations and challenges” highlights the key policy and legislative changes energy sector participants should be aware of that relate to data centre connectivity in Ontario.

The articles in this edition of ERQ generally reflect two themes. The first theme is the evolving nature of economic regulation — four of the seven articles in this edition discuss and illustrate how the objectives that frame regulatory discretion are changing, even within a traditional rate setting context.

The first of these articles is penned by Ahmad Faruqui, a long-time contributor to energy discussions in the United States, Canada and this journal. Faruqui writes on the ever-challenging topic of “Real time pricing of electricity for households: An international survey.” In his article, Faruqui explores the various designs of real time pricing in the United States, Canada, and Europe, discusses consumer uptake of these plans and the associated challenges.

Kenneth Costello, a former regulator with the Illinois Commerce Commission and researcher at the U.S. National Regulatory Research Institute, builds on his past work in the article “Today’s ratemaking challenges for utility regulators.” Costello discusses how traditional ratemaking has evolved from a focus on the determination of prudent and reasonable costs, cost allocation and rate design, and just and reasonable rates to a new paradigm, where regulators must deal with more objectives brought about by new public policies, technological change, and economic developments. All of which make the setting of just and reasonable rates a harder task for regulators. Costello highlights key challenges and takeaway observations.

John Vellone, Partner and National Leader, Energy, Resources and Renewables and Zoë Thoms, Counsel, of Borden Ladner Gervais LLP discuss the most recent intervention in the mandate and focus of the Ontario Energy Board (“OEB”) to introduce new priorities concerned with housing affordability and growth in their article “Connecting growth: Housing policy, energy infrastructure and the evolving role of the OEB.” Vellone and Thoms review the policy context for Ontario’s “housing push”, how the OEB’s Phase I decision of Enbridge Gas Inc.’s 2024 rate application became a regulatory turning point, the legislative response, and the resulting regulatory reform and alignment with the policies of the government of Ontario. They conclude with thoughtful commentary of how government direction can redefine the boundaries of regulatory discretion.

The final article dealing with the changing frame of regulatory discretion, is a case comment by Byron Reynolds and Hazel Saffery, both Partners of Dentons Canada LLP. In the article “Alberta Utilities Commission (“AUC”) Approves first industrial waste-to-energy facility with carbon capture in Canada”, Reynolds and Saffery briefly describe the nature of the facilities subject to AUC approval, the specific approvals sought and decided by the AUC, and explore the significance of the approval of this facility, specifically as it relates to resolving or contributing to the resolution of other societal problems, including management of municipal solid waste, carbon markets, and improving the viability of carbon capture and storage.

The second theme is the regulatory review process for new projects and whether the now proclaimed Bill C-5 can and will result in a more expedited and streamlined review process for major projects of national interest, versus its predecessors — the Impact Assessment Act, 2019[8] and the 2012 Canadian Environmental Assessment Act, and if so, at what cost. The remaining articles in this edition broadly deal with Part 2, Building Canada Act of Bill C-5, including its potential impact on Canada’s obligations to First Nations.

In an article comprised of two distinct sections, Rowland Harrison, KC, formerly co-managing editor of ERQ, first recasts his keynote address from the 2025 ERQ Energy Law Forum. In “Are things different this time? Reflections on a career in energy regulation,” Harrison takes his pen over a 50-year career in energy and regulation to examine a number of the seminal regulatory decisions and related energy actions by government to give the reader a historical perspective. The second section is a reply to Mr. Harrison’s remarks, provided by Tim Sargent, Director of Domestic Policy of the Macdonald-Laurier Institute. Sargent leans on 28 years of experience in the federal government to explore the arguments and observations put forth by Harrison. Sargent observes that a convincing case can be made that many of the underlying challenges associated with project approvals have not changed in the last two decades and suggests the challenges faced by the Carney government exceed those faced by the Harper government, due to the evolving environment since 2015. Sargent concludes with a pointed discussion of Bill C-5 and makes a number of suggestions how to improve it.

The article “Building Canada Act: Move fast and make things, or move fast and break things?” by David V. Wright, Associate Professor, Faculty of Law and Martin Olszynski, Associate Professor and Chair of Energy Resources, and Sustainability, Faculty of Law, both of the University of Calgary, is a comprehensive review of the Building Canada Act. Wright and Olszynski review the structure and approach of the Act, discuss the amendments made to Bill C-5 as it rapidly progressed through the legislative process, and argue the Act is not an impact assessment. Wright and Olszynski raise a number of questions about how the expedited process set out in the Act would actually work and at what cost.

This issue concludes with an article by Dwight Newman and Jenna Renwick, Professor of Law and JD student at the University of Saskatchewan College of Law entitled “The uses and abuses of UNDRIP.” In their article, they discuss the jurisprudential status of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The article canvasses the relevant legislation that has incorporated or referenced the UNDRIP as well as the cases that have invoked the UNDRIP in their judgments. The authors discuss these recent judgments and the methodological flaws in the courts’ reasonings, which will create legal uncertainty for those in the energy and mining fields. As such, they conclude, that more clarity from appellate courts, including the Supreme Court, is needed on the status of the UNDRIP and how it fits in with Canadian law.

We hope this issue captures the essence of the moment — rapid and unprecedented geopolitical change and support for the reconsideration and reframing of Canada’s administrative law processes.

 

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