On August 13, 2009, the Ontario Energy Board issued a Decision and Order (the “Decision”) authorizing Exempt Distributors such as landlords to install smart sub-metering systems for individual units and to conduct other discretionary metering activities. Currently, residential and commercial complexes are typically metered and billed through a bulk meter which results in the lack of differentiation between users. By providing the smart sub-metering systems, the allocation of electricity usage by individual tenants will be on a unit-by-unit basis. Although the Decision grants the landlords the authority, in order for landlords to use such smart sub-metering systems for billing purposes, the express written consent of the tenants must first be obtained. This Decision provides landlords with instructions on the specific conditions necessary for using such systems to bull tenants.

For commercial complexes, the tenant’s consent must be obtained in writing and the meters can only be installed by licensed smart sub-metering providers. For residential complexes, the meters may only be installed by licensed smart sub-metering providers. However, in this instance, not only must the tenant’s written consent be obtained but it must also be an informed and voluntary consent. Further, an energy audit must be conducted by an independent third party; the results of the audit must be made available to the tenant when consent is sought. Additional details such as a corresponding rent reduction must also be provided to the tenant.

The Decision clarifies that smart sub-metering of residential and commercial complexes is not authorized if the smart sub-metering system was installed prior to the Decision and on or after November 5, 2005. However, it does recognize existing written consent in the case of commercial complexes that were given at the time the lease was signed.

For more information on this Decision, please refer to: http://www.oeb.gov.on.ca/OEB/_Documents/EB-2009-0111/dec_order_SmartSubMeters_20090813.pdf