The Energy Water Reporting Benchmarking Initiative

The Energy Water Reporting Benchmarking (EWRB) Initiative was implemented to assist building owners in improving efficiency, decreasing energy consumption, and saving money by implementing reporting and benchmarking goals and/or strategies. The information obtained through this initiative will allow condominium corporations to evaluate results, identify best practices, and measure their improvements over time, (hopefully) making their operations more energy efficient and environmentally friendly.

The disclosure of building performance and energy consumption information can: (i) motivate building owners to compete with one another and strive to improve performance each year; (ii) allow property and financial markets to compare performance; and (iii) show the benefits of investing in energy efficiency.

As part of this initiative, to assist and encourage building owners in becoming more aware of their energy and water consumption, the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A (“Act”), was amended January 1, 2019 to include Part II.3, which sets out the procedures for conservation and energy efficiency and gives the Lieutenant Governor in Council the authority to require a person (or persons) to report their energy consumption and other performance metrics to the Ministry, by way of regulation. These provisions may seem familiar that’s because they were first introduced in the Green Energy Act, 2009, S.O. 2009, c. 12, Sched. A, which has since been repealed!

This brings us to the new Ontario Regulation 506/18: Reporting of Energy Consumption and Water Use (“Regulation”).

The Regulation applies to commercial, multi-unit and some industrial buildings and sets out information regarding: who must report, which buildings are required to report, how and when to report, whether the report must be verified, where the information will be published, and other essential pieces of information.

The Regulation obliges every person or persons, other than a public agency, who is/are the owner of a prescribed property to report their energy consumption, amongst other things, to the Ministry of Energy, Northern Development and Mines (“Ministry”). For the purposes of the Regulation, an “owner” includes a corporation created or continued under the Condominium Act, 1998, S.O. 1998, c. 19.

This obligation extends to corporations with multiple buildings forming one business entity, in which case reporting of consumption is combined (although reporting will depend on whether the buildings are metered together or separately).

The specific reporting requirements are subject to change from time to time and are posted online: https://www.ontario.ca/page/guide-energy-and-water-reporting

General Reporting Process

The Regulation requires residential buildings with more than 10 units (i.e. a “prescribed property”) and at least 50,000 square feet to report annually on consumption of electricity, gas and water.

The timelines for implementation (and when the first reports are due) are as follows:

• July 1, 2019 if the building is at least 100,000 square feet.
• July 1, 2020 if the building is at least 50,000 square feet.

The Ministry provides helpful guidance in understanding the reporting requirements that were implemented when the new Regulation came into force January 1, 2019.

(1) How to report

If a building has multiple owners, the owners are jointly responsible for meeting the requirements of the Regulation. Condominium corporations must report and submit data on behalf of the building; however, it remains unclear if this requirement extends to data of each individual unit within the building.

If necessary or desired, the Act allows for a third party (i.e. property manager, consultant, etcetera) to report on the corporation’s behalf, so long as the owner provides all pertinent information necessary for gathering data and reporting. Data is reported online using a web-based energy rating tool/software known as the “Energy Star Portfolio Manager”, which is outlined in section 7 of the Regulation.

The Corporation must take the following steps before filing their first report:

1. send the Ministry the building owners’ name(s), address, telephone number and email, or contact details;
2. get an Ontario EWRB ID;
3. get the assessment roll number and property code for the building; and
4. decide who will file the report (i.e. the owner(s) or a third-party).

The property codes used by the Ministry are those defined by the Municipal Property Assessment Corporation (“MPAC”). If a building type is listed on the website, then it must comply with the obligations set out in the Act and Regulation.

The list of buildings can be found here: https://www.ontario.ca/page/guide-energy-and-water-reporting#section-7

(2) What to report

From January to December each year, information must be collected regarding a building’s: (i) energy (natural gas and/or electricity) and water use (together “usage data”); and (ii) physical details including the “gross floor area”. Usage data can be requested from the utility provider.

If the building is larger than 100,000 square feet, the owner must have the building’s energy usage data verified by an accredited or certified professional in the first reporting year. After the first report, data will need to be verified every five years thereafter to ensure that the information being reported is accurate and reliable.

Pursuant to section 4 of the Regulation, the gross floor area of a single building or structure is “the total number of square feet measured between the principal exterior surfaces of the enclosed fixed walls of the building or structure, including all areas inside the building or structure’s supporting areas such as any common areas, but excluding any exterior, unroofed or open air spaces such as an outdoor parking area”. It follows that the gross floor area would include indoor common areas, as well as the individual units, as per the wording “between the principal exterior surfaces of the enclosed fixed walls of the building or structure”. If units were to be excluded, the legislation should/would have specifically stated so, as it did for “exterior, unroofed or open air spaces”. However, this appears to be a grey area in the legislation.

(3) Where information is reported

When the corporation has passed its first year of reporting, information regarding the building’s energy and water consumption will be published in the Ministry’s data catalogue. Information that will be made public includes property identification (i.e. property name, address, year built, etcetera), property ID number, energy performance metrics, and total greenhouse gas emission intensity. The Ministry will not publicly disclose total energy and water use, total greenhouse gas emissions and gross floor area on a building-by-building basis.

The data catalogue can be found here: https://www.ontario.ca/search/data-catalogue

General Concerns and Inquiries regarding the Regulation

Our main concern with this new legislation is with the definition of “gross floor area”. Condominium corporations have a duty to manage the assets and affairs of the corporation and its unit owners. Logically then, it would make sense for the corporation to report data for all units, instead of just the common areas. Unfortunately, this legislation is new, non-condominium specific, and the courts have yet to opine on what is included in the gross floor area calculations. The Regulation does not stipulate whether the square footage to be reported includes the individual units and exclusive-use common elements such as balconies, or just the common areas; however, it is worth noting that the units have not been specifically excluded from the definition as other areas have. There is also no guidance as to what effect, if any, the use of sub-metering versus bulk metering will have on reporting requirements of individual unit owners and the corporation.

An additional concern is for the condominium’s property management company and/or representative who will likely manage the process because it will be quite onerous. As such, it may be beneficial to enlist the help of an accredited energy professional, such as Enercare, to compile the data and submit the reports.

Overall, this legislation serves an important purpose and we hope that it will assist condominium corporations in reducing overall energy consumption, saving money and helping the environment!

For more information, check out the links posted throughout this article or follow the links to the legislation below:

The Act: https://www.ontario.ca/laws/statute/98e15#BK52

The Regulation: https://www.ontario.ca/laws/regulation/180506

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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