WORLD TRADE  
ORGANIZATION  WT/DS412/1 
G/L/926 
G/TRIMS/D/27 G/SCM/D84/1 
16 September 2010 
 
 
(10-4675) 
 Original:   English 
 
  
CANADA - CERTAIN MEASURES AFFECTING THE RENEWABLE  
ENERGY GENERATION SECTOR 
 
Request for Consultations by Japan
 
   The following communication, dated 13 Septem ber 2010, from the delegation of Japan to the 
delegation of Canada and to the Chairman of the Di spute Settlement Body, is circulated in accordance 
with Article 4.4 of the DSU. 
 
_______________ 
 
 
Upon instructions from my authorities, I hereby wish to convey the request of the 
Government of Japan for consultations with the Go vernment of Canada pursuant to Article 4 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  ("DSU"), 
Article XXII:1 of the General Agreement on Tariffs and Trade 1994  ("GATT 1994"), Article 8 of the 
Agreement on Trade-Related Investment Measures  (the " TRIMs Agreement "), and Articles 4.1 and 30 
of the Agreement on Subsidies and Countervailing Measures  (the " SCM Agreement "), regarding 
Canada's measures relating to domes tic content requirements in the f eed-in tariff program (the "FIT 
Program").
1 
The measures that are the subject of this request are those taken by the Government of 
Canada or its provinces relating to the FIT Program  established by the Canadian province of Ontario 
in 2009 providing for guaranteed, long-term pricing fo r the output of the renewable energy generation 
facility that contain a defined percentage of dom estic content. These measures include, but are not 
limited to, the following: 
(1) the Electricity Act, 1998 , as amended,2 including in particular Part II.1 (Ontario 
Power Authority3) and Part II.2 (Management of El ectricity Supply, Capacity and 
Demand) thereof, including in particular Section 25.35 (Feed-in tariff program); 
(2) an Act to enact the Green Energy Act, 2009 and to build a green economy, to repeal 
the Energy Conservation Leadership Act, 2006 and the Energy Efficiency Act and to 
                                                      
1"FIT Program" referred to in this request includes both projects over 10 kilowatts and projects of 10 
kilowatts or less(microFIT). See http://fit.powerauthority.on.ca/ ; 
http://fit.powerauthority.on.ca/Page. asp?PageID=1115&SiteNodeID=1052 ;and 
http://microfit.powerauthority.on.ca/ . 
2 The latest amendment was by: 2010, c.8, s.37. 
3 The Ontario Power Authority ("OPA") is a not-for-profit corporation without share capital, and the 
governance and the structure by-law may be made only with the approval in writing of the Minister of Energy 
and Infrastructure (the "Minister").  See, e.g. , Electricity Act, 1998 , Sections 25.1(1) and 25.16(3). WT/DS412/1, G/L/926,  
G/TRIMS/D/27, G/SCM/D84/1 Page 2 
 
 
  amend other statues (the "Green Energy and Green Economy Act, 2009"), including 
in particular Schedule B amending the Electricity Act, 1998; 
(3) an Act to amend the Electricity Act, 1998 and the Ontario Energy Board Act, 1998 
and to make consequential amendments to ot her Acts (the "Electricity Restructuring 
Act, 2004"), including in particular Schedul e A, Section 28, enacting Part II.1 of the 
Electricity Act, 1998;  
(4) FIT direction dated September 24, 2009, from George Smitherman, Deputy Premier 
and Minister of Energy and Infrastructure, to Colin Anderson, Chief Executive Officer, Ontario Power Authority, directing OPA to develop a FIT Program and 
include a requirement that the applicant submit a plan for meeting the domestic ( i.e., 
Ontario) content goals in the FIT rules; 
(5) the FIT Rules, Version 1.3.1 issued on 2 July 2010 and amended on 13 August 2010 
by the OPA, and the microFIT Rules, Version 1.5 issued on 25 August 2010; 
(6) the FIT Contract, Version 1.3.1 (2 July 2010), including General Terms and 
Conditions, Exhibits, and Standa rd Definitions, issued by the OPA, and the microFIT 
Contract, Version 1.5 (25 August 2010), incl uding Appendices, issued by the OPA, as 
well as individual FIT and microFIT Contracts executed by the OPA with renewable energy suppliers in Ontario; 
(7) the FIT Application Form (1 December 2009), and online microFIT Application, 
issued by the OPA; 
(8) the FIT Price Schedule (13 August 2010), and the microFIT Price Schedule 
(13 August 2010), issued by the OPA; 
(9) the FIT Program Interpretations of the Domestic Content Requirements (December 
14, 2009), issued by the OPA; and 
(10) any amendments or extens ions of the foregoing, a ny replacement measures, any 
renewal measures, any implementing measures, and any related measures.  
The Government of Japan believes these me asures discriminate against equipment for 
renewable energy generation facilities produced outsi de Ontario, and also constitute a prohibited 
subsidy.  Specifically, Japan is concerned that the measures in question, as authorized, established, 
and implemented, are inconsistent  with Canada's obligations under,  but not limited to, the following 
provisions: 
(1) Articles III:4 and III:5 of the GATT 1994; 
(2) Article 2.1 of the TRIMs Agreement;  and 
(3) Articles 3.1(b) and 3.2 of the SCM Agreement. 
The measures listed above appear to be inc onsistent with Articles III:4 and III:5 of the 
GATT 1994 because: the measures appear to be laws , regulations or requirements affecting the 
internal sale, offering for sale, purchase, transpor tation, distribution, or use of equipment for 
renewable energy generation facilities that accord less favorable treatment to imported equipment 
than that accorded to like products originating in Ontario; the measures could be internal quantitative  WT/DS412/1, G/L/926,  
 G/TRIMS/D/27, G/SCM/D84/1  Page 3 
 
 
  regulations relating to the mixture, processing or use of a specified amount or proportion of 
equipment for renewable energy generation facilitie s which require that equipment for renewable 
energy generation facilities must be supplied fro m Ontario sources; and the measures appear to 
require the mixture, processing or use of equi pment for renewable energy generation facilities 
supplied from Ontario in specified amounts or proporti ons, being applied so as to afford protection to 
Ontario production of such equipment, contrary to  the principles of Article III:1 of the GATT 1994. 
In addition, the measures listed above appear to be inconsistent with Article 2.1 of the TRIMs 
Agreement  because the measures appear to be trade-relate d investment measures that are inconsistent 
with the provisions of Article III of the GATT 1994. 
Finally, it appears that a subsidy is gran ted under the measures listed above within the 
meaning of Article 1.1 of the SCM Agreement  because there would be a financial contribution or a 
form of income or price support, and a benefit is  thereby conferred. And the subsidy would be a 
prohibited subsidy under Articles 3.1(b) and 3.2 of the SCM Agreement  because it appears to be 
provided "contingent … upon the use of domestic ove r imported goods", namely contingent upon the 
use of equipment for renewable energy generation facilities produced in Ontario over such equipment 
imported from countries such as Japan.  As the subsid y falls under the provisions of Article 3 of the 
SCM Agreement , it would therefore be deemed to be specific under Article 2.3 of the SCM 
Agreement . 
Article 4.2 of the SCM Agreement  requires that requests for cons ultations under Article 4.1 of 
the SCM Agreement  include a statement of available evidence with regard to the existence and nature 
of the subsidy in question.  The available ev idence is listed in the Annex to this request. 
The Government of Japan considers that the measures in questions also nullify or impair, 
within the meaning of Article XXIII:1 of the GA TT 1994, benefits accruing to Japan directly or 
indirectly under the cited Agreements. 
The Government of Japan reserves the right to request the Government of Canada to produce 
further information and documents regarding the measu res in question. The Gove rnment of Japan also 
reserves the right to raise further facts and claims  under other provisions of the covered agreements 
and address additional measures  duri ng the course of consultations.   
The Government of Japan looks forward to r eceiving a reply from the Government of Canada 
to this request  and to fix a mutually convenient date to hold consultations.  
 
_______________ WT/DS412/1, G/L/926,  
G/TRIMS/D/27, G/SCM/D84/1 Page 4 
 
 
  ANNEX 
 
Statement of Available Evidence with Regard
  
to the Existence and Nature of the Subsidies in Question  
 
 Japan's request for consultations dated 13 Se ptember 2010 identifies the prohibited subsidies 
that are the subject of this request for consultations. 
The evidence set out below is evidence availabl e to Japan at this time regarding the existence 
and nature of those subsidies.  Japan reserves the right  to supplement or alter this list in the future, as 
required. 
The evidence presently available to  Japan includes the following: 
• The Electricity Act, 1998 , S.O. 1998, c. 15 (Can. Ont.), as amended, http://www.e-
laws.gov.on.ca/html/statutes/english/elaws_statutes_98e15_e.htm  
• The Green Energy and Green Economy Act, 2009 , S.O. 2009, c. 12 (Can. Ont.), 
http://www.ontla.on.ca/bills/bills-files/39_Parliament/Session1/b150ra.pdf  
• The Electricity Restructuring Act, 2004 , S.O. 2004, c. 23 (Can. Ont.), 
http://www.ospe.on.ca/pdf/gr_legislation_Bill_ 100_Electricity_Restructuring_Act_2004.pdf  
• FIT direction from George Smitherman, Deput y Premier and Minister of Energy and 
Infrastructure, Province of Ontario, to Co lin Anderson, Chief Executive Officer, Ontario 
Power Authority (September 24, 2009), http://www.powerauthority.on.ca/Storage/106/ 15420_FIT_Directive_Sept_24_09.pdf
 
• OPA, FIT Program Website, and contents therein, 
http://fit.powerauthority.on.ca/Pa ge.asp?PageID=1115&SiteNodeID=1052  
• OPA, microFIT Program Website, and contents therein, http://microfit.powerauthority.on.ca/  
• OPA, Feed-In Tariff Program: Program Overview (2 July 2010), 
http://fit.powerauthority.on.ca/Storage.asp?StorageID=10507  
• OPA, Micro Feed-In Tariff Program: Program Overview (25 August 2010), 
http://microfit.powerauthority.on.ca/pdf/microFIT-Program-Overview.pdf  
• OPA, Feed-In Tariff Program: FIT Rules, Ver. 1.3.1 (13 August 2010), 
http://fit.powerauthority.on.ca/Storage/102/ 11119_FIT_Rules_Versi on_1.3.1_August_13.pdf  
• OPA, Feed-In Tariff Program: microFIT Rules, Ver. 1.5 (25 August 2010), 
http://microfit.powerauthority.on.ca/pdf/microFIT-Rules.pdf  
• OPA, FIT Contract, Ver. 1.3.1 (2 July 2010), 
http://fit.powerauthority.on.ca/Storage.asp?StorageID=10775  
• OPA, microFIT Contract, Ver. 1.5 (25 August 2010), 
http://microfit.powerauthority.on.ca/pdf/microFIT-Contract.pdf   WT/DS412/1, G/L/926,  
 G/TRIMS/D/27, G/SCM/D84/1  Page 5 
 
 
  • OPA, FIT Contract Form of Domestic Content Plan, OPACM- FORM-DOMESTIC 
CONTENT PLANT (2010-04) (11 August 2010), http://fit.powerauthority.on.ca/Storage/ 102/11118_FIT_Domestic_Content_Plan.pdf
 
• OPA, microFIT Domestic Content Grid, http://microfit.powerauthority.on.ca/pdf/microFIT-
Domestic-Content.pdf  
• OPA,  FIT Appendix I – Standard Definitions,  Ver. 1.3.1 (July 2, 2010), 
http://fit.powerauthority.on.ca/Storage.asp?StorageID=10638  
• OPA, FIT Application Form (1 December 2009), 
http://fit.powerauthority.on.ca/Storage.asp?StorageID=10662  
• OPA, online microFIT Application, http://microfit.powerauthority.on.ca/microFIT-Program-
Rules/Submitting-an-application/index.php  
• OPA,  FIT Price Schedule  (13 August 2010),  
http://fit.powerauthority.on.ca/Storage.asp?StorageID=10620  
• OPA, microFIT Price Schedule (August 13, 2010), 
http://microfit.powerauthority.on.ca/pdf/microFIT-Program-price-schedule.pdf  
• OPA, Interpretations of the Domestic Content Requirements (14 December 2009), 
http://fit.powerauthority.on.ca/Storage/99/10 869_Questions_and_Answ ers_on_Domestic_Co
ntent_Grid_Cells_Dec_14_09.pdf  
• OPA, Draft Domestic Content Interp retations (last updated 19 July 2010), 
http://fit.powerauthority.on.ca/Page.asp?PageID=924&ContentID=10618  (past requests for 
feedback on draft interpretations); http://fit.powerauthority.on.ca/Page.asp?P ageID=924&ContentID= 10662&SiteNodeID=1054
 
(proposed changes to FIT Contract, Exhibit D, posted June 29, 2010); 
http://fit.powerauthority.on.ca/Storage/ 100/10908_Domestic_Cont ent_Exhibit_D_-
_Draft_March_11_10.pdf  (proposed changes to FIT Contract, Exhibit D, posted 
11 March 2010) 
• OPA, FIT Program Domestic Content FAQ (2010), 
http://fit.powerauthority.on.ca/Page.asp?PageID=834&ContentID=10544  
• OPA, FIT Program Pricing and Payment FAQ (2010), 
http://fit.powerauthority.on.ca/Page.asp?PageID=834&ContentID=10511  
• OPA, FIT Program Resources – Domestic Content (2010), 
http://fit.powerauthority.on.ca/Page.asp?PageID=122&ContentID=10598  
• OPA, FIT Program Contract Management – Settlement (2010), 
http://fit.powerauthority.on.ca/Page.asp?PageID=122&ContentID=10393  
• OPA, FIT Program Participation and El igibility – Domestic Content (2010), 
http://fit.powerauthority.on.ca/Page.asp?PageID=122&ContentID=10605  WT/DS412/1, G/L/926,  
G/TRIMS/D/27, G/SCM/D84/1 Page 6 
 
 
  • Press Release, OPA, Ontario's Feed-In Ta riff Program Backgrounde r (10 March 2010), 
http://fit.powerauthority.on.ca/Storage/100/ 10899_FIT_-_CAE_Eve nt_-_Backgrounder_-
_FINAL.pdf  
• Press Release, OPA, Ontario's Landmark Green Energy Plan Delivers (10 March 2010), 
http://fit.powerauthority.on.ca/Storage/100/ 10898_FIT_-_CAE_Event_News_Release_-
_FINAL.pdf  
• Ontario, Legislative Assembly, Official Report of Debates (Hansard) , No. L112 (23 February 
2009) (exchange between Hon. George Smitherman and MPP Paul Miller on "Green Power 
Generation"), http://www.ontla.on.ca/web/house-proc eedings/house_detail.do?Date=2009-02-
23&Parl=39&Sess=1&locale=en#P201_38409  
• Independent Electricity System Operator, The Power System, 
http://www.ieso.ca/imoweb/siteShared/power_system.asp  
• OPA, 2010-2012 Business Plan (September 2009), 
http://www.powerauthority.on.ca/Storage/108/15587_A-2-1_2010-
2012_OPA_Business_Plan_Final_Oct__1.pdf  
 
__________