# Adversarial review — charging-site host agreement, SOR/2022-140 s.101

Text verified against laws-lois.justice.gc.ca (EN + FR consolidated, current to 2026-06-21).
Two hats: ECCC verifier under s.131 looking to disallow; Host's litigator looking for the exit.

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## 0. Read this before the clause table

### 0.1 The single largest failure mode is not classification. It is s.21/s.22.

Only a **registered creator** creates credits: s.19(1)(d)(iv) — "the registered creator, **or a person with whom they have entered into an agreement under section 21**, reduces the number of tonnes of CO2e emissions by displacing … a quantity of electricity as an energy source for an electric vehicle, in accordance with sections 101 and 102."

So there are exactly two lawful shapes, and this draft does not say which one it is:

- **Shape 1** — Distributor is *both* the s.1(1) charging-site host *and* the registered creator. The Host is a licensor and a stranger to the CFR. No s.21 agreement exists or is needed.
- **Shape 2** — the Host (or anyone else) is the s.1(1) charging-site host; the Distributor is the registered creator and must have a **s.21 agreement** with that person.

Clause D asserts Shape 1. Clause D is an assertion about a legal test the parties do not control (see §D). **If the assertion is wrong, the arrangement is Shape 2 with no s.21 agreement** — and then:

- s.21(2): the agreement "**is not valid** unless it is signed by the authorized agents of each of the parties" and contains the prescribed content;
- s.22(1): it must be **submitted to the Minister**, and no provisional credits may be created under it until the day after submission (s.22(2): back to day 1 of the period if submitted in the first 60 days);
- credits created without a valid, submitted agreement are excess compliance credits — suspension under s.158(1), cancellation under s.160(1)(c), and if the account is short, s.158(3)/s.160(2)–(3) reach **equivalent credits in any other account** and give 90 days to make good. That is portfolio-wide contagion from one misclassified site.

**Recommendation #1, ahead of everything else: draft this instrument so it satisfies s.21(2) on its face, whichever party turns out to be the host, and submit it under s.22 inside the 60-day window.** It costs a signature block and a schedule. It removes the bet entirely. Concretely, add:

- s.21(2)(a): for **each** party — name, civic address, postal address, telephone, email; the name, title and full coordinates of the **authorized agent**; and of a **contact person** unless that is the authorized agent;
- s.21(2)(b): the **compliance period(s)** to which the agreement relates (note: this is a per-compliance-period instrument — a perpetual "term" clause does not satisfy it; use an annual schedule or an annual confirmation);
- s.21(2)(g): for each station the host owns or leases — (i) the **province**, and (ii) **the name of the charging-network operator, if any, who operates the communication platform that collects data from the charging station** (see §0.3);
- execution by **authorized agents** of both parties, expressly in that capacity;
- a covenant by the Distributor to submit under s.22 and to give the s.26(3) notice (Schedule 3 s.1 and applicable ss.4–12 info) on entering the agreement.

**Trap in s.21(1):** the registered creator may enter into a s.21 agreement only "**before they have created any provisional compliance credits**" for the compliance period concerned. A distributor already creating credits cannot bolt new host sites on mid-period without a live argument about the scope of that words. Sequence site onboarding to the compliance-period boundary and the s.22(2) 60-day window.

### 0.2 Why ECCC will look hard at this structure

s.103 imposes a **revenue-reinvestment lock** on s.102 credits — all transfer revenue must be spent on EV charging infrastructure or EV-purchase incentives within two years, on pain of cancellation (s.103(4)–(7)) — and s.125 imposes an annual revenue report. **s.101 credits carry neither.** The commercial motive for landing in s.101 is transparent. Assume the verifier knows it, and assume classification is where they will spend their sample.

### 0.3 The charging-network operator firewall (best structural point in the file)

"**charging-network operator** means a person who operates a communication platform that collects data on the electricity supplied by a charging station **and who is the owner of that data**." Both limbs.

s.102(1)(b) can only bite if some person is a CNO for this station and lists it. Therefore: **contract the session-data ownership so no third party satisfies both limbs.** If the network vendor operates the platform but the Distributor (or the host) owns the data, the vendor is not a CNO and there is no 102(1)(b) listing surface at all.

Two checks before relying on it:

1. s.21(2)(g)(ii) forces you to name "the charging-network operator, **if any**". Declaring "none" while a vendor plainly runs the back-office puts the **vendor contract's data-ownership terms directly in scope on verification**. The paper must be real — an assignment of data ownership, not a licence-back, and it must predate the compliance period.
2. If the Distributor both operates the platform and owns the data, **the Distributor is the CNO** and its own website/app becomes the s.102(1)(b) listing surface. Then clause B has to bind the Distributor's own product roadmap, not just the Host.

### 0.4 Answer to Q1 — does a private contract control the classification?

**No, and the recitals are worse than useless.** "Intended primarily for use by the public" is an objective characterisation of the *station*, drawn from configuration, access control, signage, listing and observed usage. Two parties agreeing on a label bind each other by estoppel and bind ECCC not at all. Worse: a recital that reads as an attempt to characterise rather than to record facts invites the verifier to treat the whole file as advocacy, and under s.151 the verification body must separately assess **material qualitative misstatements** — misclassification is the paradigm qualitative misstatement.

And there is a criminal tail. Declaring a classification you know to be wrong in a s.120 report is **CEPA s.272(1)(l)** ("knowingly … files a document that contains false or misleading information"); corporate minimum fine on indictment for a first offence is **$500,000** (s.272(3)(a)(i)). Doing it carelessly is **s.272.1(1)(h)** (negligently). No contractual recital touches either.

**What the verifier wants instead of a recital — build this as a schedule, not a paragraph:**

| Evidence | Source | Cadence |
|---|---|---|
| Access-control roster (permitted credentials) with effective add/remove dates and the authority for each entry | Host HR/property system | Quarterly export, retained |
| Session log: station serial, start/end timestamp, kWh, authenticating credential (pseudonymised), authorisation result | Network back-office | Continuous |
| **Exception log**: every session by a non-permitted credential or an unauthenticated/free-vend session, with kWh | Network back-office | Continuous |
| Vehicle-class attribution per credential (light-duty vs other) | Host fleet/parking records | Annual, plus on change |
| Dated site photographs: absence of public signage; gates, barriers, bollards, controlled entrance | Site walk | Annual and at each s.152 visit |
| Site plan showing the station relative to public rights of way and visitor parking | Host | Once, updated on change |
| Back-office configuration export showing the station is set private/restricted and **not published to any roaming hub or eMSP** (OCPI/OCPP settings) | Network vendor | Quarterly |
| Negative listing search: dated screenshots for PlugShare, ChargeHub, Google Maps, Apple Maps, the network's own map | Distributor | Quarterly |
| Written access policy (employee handbook clause, condo rule, fleet SOP) **predating** the compliance period | Host | Once, on change |
| Head lease / landlord consent / condo board resolution / mortgagee consent evidencing the install right | Host | Condition precedent |
| Management representation letter to the verification body | Host officer | Annual |

Contemporaneous records that predate the dispute beat every recital. A recital drafted by the party that profits from the classification is the weakest evidence in the bundle.

### 0.5 Answer to Q2 — is the "and" in s.102(1)(b) conjunctive, and is that a loophole worth using?

**Textually, yes.** EN: "intended primarily for use by the public **and** whose location is indicated on the website or mobile application of the charging-network operator." FR: "destinée principalement à être utilisée par le public **et** dont l'emplacement est indiqué sur le site Web ou l'application mobile de l'exploitant d'un réseau de recharge." Conjunctive in both languages, no divergence. And s.101(1) is drafted as a pure residual — "a charging station **other than any charging station referred to in subsection 102(1)**" — so a station that fails either limb of 102(1)(b) is literally not referred to in 102(1).

**But do not build the deal on it.** Three reasons:

1. It produces an absurd result (a genuinely public station escapes the s.103 revenue lock by the operator simply not publishing it), and *Interpretation Act* s.12 invites a purposive reading against you. A verifier is not obliged to hand you an outcome the scheme plainly did not intend.
2. The limb is about the **CNO's** website or app. If your firewall in §0.3 works, no one is a CNO and the limb is unsatisfiable — which is a *stronger* position than winning an argument about "and", but it also means the conjunctive point is doing no work for you.
3. Even if you win on 102(1)(b), you still have to survive the **positive** case that the station is not public — and the s.151 qualitative test and the CEPA s.272(1)(l) exposure both attach to the declaration, not to the loophole.

**Bottom line for counsel: treat the conjunctive reading as a fallback argument in a dispute, never as the compliance design.** The compliance design is factual non-publicness (clause C) plus the CNO firewall.

**Corollary that changes clause B's whole function:** a PlugShare or ChargeHub entry is *not* the CNO's website, so it does not satisfy s.102(1)(b) at all. What it does is destroy the factual case that the station is not intended primarily for public use, and flag the site for sampling. **Clause B is an evidence-preservation covenant, not a compliance covenant.** Drafted as an absolute covenant against the acts of strangers, it is unenforceable in substance and puts the Host in permanent breach risk (see §B).

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## 1. Clause-by-clause

### A. Classification — **REDRAFT**

**What breaks it.**

1. **It invents a category the host route does not have.** The tripartite taxonomy ("occupants of a private dwelling-place / the public / **another use**") appears at **s.21(2)(f)(ii)** — the content requirement for an agreement with a **charging-network operator under s.102(1)**. It is not the host-route field. The host route is defined **negatively**: Schedule 3 item 11 — "a charging station **other than a charging station described in sections 9 and 10 of this Schedule**"; s.101(1) — "other than any charging station referred to in subsection 102(1)". Declaring the station is "for another use" is drafting to the wrong provision, and if a vendor-CNO is also declaring the station under s.21(2)(f)(ii), the two declarations can conflict on the face of the Minister's file.
2. **It is a legal conclusion dressed as a covenant.** Nothing to breach, nothing to prove, no evidence generated.
3. It gives the Host no obligation at all — the Host warrants nothing about the facts that produce the classification.

**Replacement wording.**

> **A. Classification and supporting facts.**
> **A.1 (Host warranty of fact.)** The Host represents and warrants, as at the Effective Date and as a continuing representation on each day of each Compliance Period, that in respect of each Station: (a) access is restricted to Permitted Users by the Access Controls described in Schedule [C]; (b) no signage, wayfinding, advertising or directory entry within the Premises or on any adjacent right of way identifies the Station as available to persons other than Permitted Users; (c) the Host has not, and has not authorised any person to, offer or hold out the Station as available for use by the public; and (d) the facts set out in the Classification Fact Sheet at Schedule [D] are true and complete.
> **A.2 (Characterisation.)** The Parties record that, on the facts warranted in A.1, each Station is a charging station **other than a charging station referred to in subsection 102(1) of the Regulations**, and accordingly is a station in respect of which compliance credits may be created under subsection 101(1). The Parties acknowledge that this characterisation is **not determinative as against the Minister, a verification body or any third party**, that the classification of each Station is determined by the facts and by the Regulations and not by this Agreement, and that nothing in this Agreement is intended to or does bind Her Majesty in right of Canada.
> **A.3 (No inconsistent declaration.)** Neither Party shall make, nor permit any person under its control to make, any declaration to the Minister, to a verification body, or under section 21(2)(f)(ii) or Schedule 11 of the Regulations, that is inconsistent with A.2.

A.2's disclaimer is not weakness. It is what stops a verifier reading the recital as an attempt to contract around the statute, and it is what stops the Host later arguing the Distributor represented that ECCC was bound.

**Also add** (see §0.4): a **Classification Fact Sheet** schedule — the factual particulars the warranty attaches to, refreshed annually. That is the document the verifier actually samples.

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### B. No Public Listing — **REDRAFT** (function is misdescribed; scope is both too narrow and too wide)

**What breaks it.**

1. **Too narrow where it matters.** "Neither party" does not reach the **network vendor**, which is the only entity that can push the station to a roaming hub or an eMSP app — and, if it owns the session data, is the very "charging-network operator" whose website or app s.102(1)(b) names. The clause misses the only listing surface that engages the statute.
2. **Too wide where it does not.** PlugShare, ChargeHub and Google/Apple Maps entries are crowdsourced. The Host cannot prevent an employee, a resident, a visitor or a mapping bot from creating one. As drafted the Host gives an absolute covenant against the acts of strangers and is in breach the moment one appears — which, combined with clause I, is uninsurable and unsignable.
3. **It misunderstands its own function.** Those third-party listings do not satisfy s.102(1)(b) (not the CNO's site). They damage the *factual* case under clause A and attract sampling. So the right obligation is **monitor, detect, take down, and log** — not "do not list".
4. No mention of **roaming/interoperability configuration**, which is the real risk: an OCPI push to a hub publishes the site to dozens of apps at once, silently, often as a default in a firmware or platform upgrade.

**Replacement wording.**

> **B. Listing, publication and roaming.**
> **B.1 (Distributor — the statutory limb.)** The Distributor shall not, and shall procure that each Network Vendor and any charging-network operator in respect of a Station shall not: (a) indicate the location of the Station on any website or mobile application of a charging-network operator; or (b) publish, expose or make the Station available to any roaming hub, e-mobility service provider, interoperability platform or third-party application, whether by OCPI, OCPP, API, data feed or otherwise. The Distributor shall configure and maintain each Station in its back-office as private/restricted and shall provide the Host with a quarterly configuration export evidencing that setting.
> **B.2 (Both Parties — no self-publication.)** Neither Party shall publish or cause to be published the location or availability of any Station on any public website, mobile application, map, directory or advertisement.
> **B.3 (Third-party listings — monitor and remove.)** Each Party shall, upon becoming aware of any listing of a Station on any public map, application or directory (including PlugShare, ChargeHub, Google Maps and Apple Maps), notify the other within [2] Business Days and use commercially reasonable efforts to procure its removal within [15] Business Days, and shall record the date of detection, the steps taken and the date of removal in the Compliance Register. **A third-party listing created without the act, authorisation or encouragement of a Party is not a breach of this Agreement by that Party, provided that Party complies with this B.3.**
> **B.4 (Evidence.)** The Distributor shall conduct and retain dated searches of the platforms named in B.3 not less than quarterly and at each verification.

**Note for counsel.** If the Distributor is itself the CNO (it owns the session data), B.1 binds the Distributor's own consumer app. Confirm that against the product roadmap before signing, and add a change-control gate.

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### C. Permitted Users and Access Control — **REDRAFT** (right idea, defeated by ordinary facts)

**Answer to Q3 — what real-world facts defeat it.** All four of the scenarios are live, and each defeats the clause in a different way:

| Scenario | How it breaks |
|---|---|
| **Workplace lot open on weekends** | The access control is temporal, not credential-based. On Saturday the station is de facto public. "Intended primarily for use by the public" is assessed over the station's actual pattern of use — a station that is publicly usable 2 days in 7 is hard to warrant as non-public, and the weekend sessions are unauthenticated so they cannot even be quantified for the s.153 materiality test. |
| **Condo visitor space** | The user set is by definition indeterminate and self-selecting. "Visitor" is not a closed class. Worse, if the space is signed for visitors, clause A.1(b) is breached on day one. This is the single worst fact pattern in the list. |
| **Fleet depot occasionally serving contractors** | Contractors are third parties. Whether that makes the station public turns on scale and holding-out, but the real damage is that contractor sessions are usually free-vend or on a shared credential, so they land in the unattributable bucket — and under **s.101(2)(c)**, a station "accessible to more than one class of electric vehicles" where "it is not possible to differentiate" forces the **lesser** EER on the whole station. Direct yield loss, not just classification risk. |
| **Unlocked lot with an unlocked charger** | Fatal. If any member of the public can drive in and plug in, "gated access" is a fiction, the RFID/allowlist is decorative (many units free-vend when the back-end is offline), and the Distributor has no evidence at all that sessions were by Permitted Users. |

Two mechanical points the clause misses entirely:

- **Free-vend on offline.** Most EVSE defaults to either free-vend or lockout when the back-end connection drops. If it free-vends, the access control is off precisely during the periods the Distributor cannot log. Specify lockout, and specify the treatment of kWh dispensed while offline.
- **Physical vs credential access.** The clause conflates them. Only credential control is provable from data; physical control is provable only from dated photographs and the site plan.

**Replacement wording.**

> **C. Permitted Users and access control.**
> **C.1 (Closed class.)** "Permitted Users" means, and is limited to, the classes listed in Schedule [C], each of which must be a determinate class identifiable from the Host's own records by reference to a named system of record. **Visitors, guests, contractors, customers and members of the public are not Permitted Users**, and no class defined by reference to presence at the Premises rather than by relationship to the Host may be a Permitted User class.
> **C.2 (Credential control.)** Each Station shall require successful authentication against the Permitted User allowlist before a charging session may commence. The Distributor shall configure each Station so that, **on loss of back-office connectivity, the Station denies authorisation rather than free-vends**, and shall not enable any free-vend, plug-and-charge-open, ad hoc, credit card or QR-code payment mode.
> **C.3 (Physical control.)** The Host shall maintain the physical access controls described in Schedule [C] and shall not remove, disable or relax them without the Distributor's prior written consent.
> **C.4 (No holding out.)** The Host shall not install or permit signage, wayfinding, directory entries, advertising or listing describing the Station as available to any person other than Permitted Users, and shall install and maintain the restricted-use signage specified in Schedule [C].
> **C.5 (Temporal access.)** The Host shall not open the Premises, or any part of the Premises from which a Station is accessible, to persons other than Permitted Users **at any time**, including outside business hours, on weekends, or for events. Where the Premises are so opened, the Host shall procure that the Stations are physically inaccessible for that period and shall record the period in the Compliance Register.
> **C.6 (Exception log.)** The Distributor shall maintain, and the Host shall provide the information necessary for, an Exception Log recording every session that was not authenticated against the Permitted User allowlist, with station serial, timestamps, kWh and the reason. The Parties shall exclude the kWh recorded in the Exception Log from the quantity Q reported under section 101(2) of the Regulations.
> **C.7 (Vehicle class.)** The Host shall attribute each Permitted User credential to a vehicle class (light-duty / other, per the *Specifications for Fuel LCA Model CI Calculations*) and shall notify the Distributor of any change within [10] Business Days. The Host acknowledges that failure to permit differentiation engages section 101(2)(c) of the Regulations and reduces the credits created.

C.6 is the clause that turns an incursion from a classification catastrophe into a quantified, immaterial rounding error. Without a countable exception log there is no materiality argument at all.

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### D. Title and Installation Right — **REDRAFT** (this is the clause most likely to lose the credits)

**Answer to Q4.**

**(a) Does the acknowledgement bind ECCC? No.** "charging-site host" is a statutory status test in s.1(1). An inter-partes acknowledgement is estoppel between the parties and is worth nothing against the Minister or a verification body. Worse, it can hurt: a verifier reading "the parties acknowledge the Distributor is the s.1(1) charging-site host" reads a party that knew the point was arguable and papered over it.

**(b) Does the Distributor satisfy both limbs?** The definition (FR: "**Propriétaire ou locataire d'une borne de recharge légalement autorisé à la faire installer**") requires **one person** to satisfy both:

- *Limb 1 — owns or leases the charging station.* Yes, on the stated facts, **subject to fixtures law**. This is not trivial: EVSE hard-wired to a building, bolted to a slab or mounted on a wall can become a fixture and pass to the freehold at common law, which would destroy limb 1 outright. Title retention clauses are effective between the parties but not necessarily against the landowner, a mortgagee, or a purchaser. **Fix:** an express fixtures/chattel agreement, a PPSA registration, a landlord/mortgagee waiver of any claim to the equipment, and construction detail that supports removability.
- *Limb 2 — "has the legal right to have the charging station installed."* **This is where it fails, and clause D as drafted does not test it.** The Host can grant only the right it has. If the Host is a **tenant**, the head lease very commonly prohibits alterations, additions, structural work, penetrations, or the grant of sub-rights, and reserves parking areas to the landlord. A tenant purporting to grant an install right it does not hold gives the Distributor nothing, the Distributor is **not** a charging-site host, and **every credit from that site is an excess compliance credit**. Same analysis for a condominium corporation dealing with common elements (declaration, by-laws, s.98-type agreement requirements and owner approval thresholds in most provinces), and for any encumbered freehold where the mortgage restricts alterations.

**Replacement wording.**

> **D. Ownership, installation right and status.**
> **D.1 (Title.)** Title to and property in each Station and its associated equipment remains at all times with the Distributor. Each Station is and shall remain the personal property (chattel) of the Distributor notwithstanding any degree of annexation to the Premises, shall not become a fixture, and the Host waives and shall procure the waiver by each Landlord, Mortgagee and Encumbrancer of any right, title, interest, lien or claim in or to any Station. The Host consents to the Distributor's registration of a financing statement under the applicable personal property security legislation and shall execute such acknowledgements as the Distributor reasonably requires.
> **D.2 (Grant of installation right.)** The Host grants the Distributor the irrevocable right, for the Term and for the Tail Period, to install, own, operate, inspect, maintain, repair, replace and remove each Station at the locations shown in Schedule [B], together with rights of access, use of the electrical supply infrastructure, and rights to run and maintain conduit and cabling.
> **D.3 (Authority — representation.)** The Host represents and warrants that: (a) it is the [registered owner / tenant under the Head Lease dated ___ / condominium corporation] of the Premises; (b) it has full right, power and authority to grant D.2 and has obtained every consent, approval, authorisation, board or owner resolution, permit and waiver necessary to do so, including each consent listed in Schedule [E]; (c) the grant in D.2 does not and will not breach the Head Lease, any mortgage or other encumbrance, any condominium declaration, by-law or rule, or any restrictive covenant; and (d) it will maintain the effectiveness of each such consent throughout the Term and the Tail Period.
> **D.4 (Condition precedent.)** The Distributor's obligation to install is conditional on delivery of executed originals of each consent listed in Schedule [E], including a **landlord consent and non-disturbance agreement** in the form of Schedule [F] where the Host is a tenant, and a **mortgagee non-disturbance and waiver** where the Premises are encumbered.
> **D.5 (Status — no acknowledgement.)** The Parties record their **understanding**, based on D.1 to D.3, that the Distributor is a "charging-site host" within the meaning of subsection 1(1) of the Regulations, being a person who owns a charging station and who has the legal right to have it installed. The Parties acknowledge that this understanding is not binding on the Minister or any verification body. **If it is determined by the Minister, a verification body or a court that the Host and not the Distributor is the charging-site host in respect of any Station, the Distributor shall immediately cease creating compliance credits in respect of that Station, and the Parties shall co-operate to reconcile, correct or cancel any credits already created.**

> **D.6 (No deemed s.21 agreement.)** The Parties acknowledge that no provision of this Agreement
> operates, or is intended to operate, as an agreement under section 21 of the Regulations.

**Correction, 2026-08-26 — the fallback conversion has been deleted, and this is important.** An earlier
draft of D.5 deemed a s.21 agreement into existence on an adverse host-status finding. **That cure is not
available.** s.21(1) permits a registered creator to enter such an agreement only *"before they have
created any provisional compliance credits"* — ever, not merely for that period — and s.22(1) bars
creation under the agreement until the day after it is actually submitted to the Minister. A deeming
clause cannot manufacture either. Section 21 ends at (2)(h) and contains no amendment mechanism, and
s.21(2)(g) requires each station to be named, so the s.21 population is fixed at signature and never
reopens.

**What replaces it.** A s.21 agreement is only worth anything if it is signed and submitted for that
named Station *before the Distributor's first-ever provisional credit*. If that was not done, an adverse
host-status finding is a **stop-claim and termination event**, not a convertible one — hence D.5 above.
The real protection is therefore front-loaded into D.1 to D.4: title, the irrevocable installation right,
the authority representation, and the consents as conditions precedent.

**Also flag for counsel:** the definition is in the present tense ("owns or leases … **and who has** the legal right"), so the status is arguably continuing, not tested only at installation. A licence terminable at will, or a licence that ends with a head lease the Host does not control, is a live risk to status mid-compliance-period. Hence "irrevocable … for the Term and the Tail Period" in D.2, and see the missing termination clause at §2.7.

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### E. Not a Private Dwelling-Place — **REDRAFT** (keep the conservatism; fix the mechanics)

**Answer to Q5.**

The English of s.102(1)(a) — "a charging station that is **owned** and intended primarily for use **by the occupants of a private dwelling-place**" — shares the agent across both participles, and the French confirms rather than contradicts it: "une borne de recharge **dont sont propriétaires les occupants d'un logement privé** et qui est destinée principalement à être utilisée par eux." There is **no bilingual divergence** here, so no shared-meaning argument to run.

That produces a tempting reading: a **Distributor-owned** residential charger fails the ownership limb of s.102(1)(a), so it is not "referred to in subsection 102(1)", so s.101 is open even for a residential unit. **Do not build on it**, because the ownership limb appears in s.102(1)(a) and **nowhere else**. Every other place the Regulations handle residential charging is intended-use only:

- **s.79(1)** — the elective CI route is available for a station "that is **not intended primarily for use by the occupants of a private dwelling-place**";
- **Schedule 3 item 9** — registration, station "intended primarily for use by the occupants of a private dwelling-place";
- **Schedule 11 item 6(c)** — reporting, same.

So even if you win the 102(1)(a) point, the Schedule machinery still forces a residential characterisation, s.79 is closed to you, and the file reads as arbitrage. **Park this as a counsel opinion item; keep clause E conservative.**

**The real risk line for condo/MURB.** "Private dwelling-place" is undefined, so it takes its ordinary meaning: a place where a person dwells privately. The unit is plainly a private dwelling-place. The question is whether a **resident-only station in the common elements** is "intended primarily for use by the occupants of a private dwelling-place" — and the honest answer is **yes, it very probably is**. The phrase says "for use by the occupants", not "located within". A charger in a condo parking garage restricted to residents is a station intended primarily for use by the occupants of private dwelling-places. Clause E's assertion that a station in common/commercial areas is therefore not residential **does not follow from the text** and is the weakest proposition in the draft.

**Practical risk ladder for MURB, safest first:**

1. **Commercial/retail podium or a separately-demised commercial parking area**, users are employees or commercial tenants, no resident access — defensible.
2. **Visitor parking in a residential building** — worst of both worlds: arguably public *and* residential. Avoid entirely.
3. **Resident-only common-element station** — high risk of a residential reading. Only proceed with a written opinion; do not paper over it with a recital.
4. **In-suite or assigned-parking-stall station used by one household** — do not attempt s.101.

**Replacement wording.**

> **E. Dwelling-place classification.**
> **E.1 (Warranty of fact.)** The Host represents and warrants that in respect of each Station: (a) the Station is not located within, and is not accessible from within, any private dwelling-place; (b) the Station is not located in or upon any parking stall, storage area or other area that is the exclusive property of, demised to, or assigned for the exclusive use of, the occupant of any private dwelling-place; (c) no occupant of a private dwelling-place owns or has any proprietary interest in the Station; and (d) Permitted Users do not include any person **in their capacity as an occupant of a private dwelling-place**.
> **E.2 (Residential premises — restriction.)** Where the Premises comprise or include residential units, the Distributor shall install Stations only in the areas identified as Eligible Areas in Schedule [B]. The Host shall not permit any Station to be used by an occupant of a residential unit at the Premises in that capacity, and shall not represent any Station as a resident amenity, in marketing material, disclosure statements, or condominium documents.
> **E.3 (Acknowledgement of undefined term.)** The Parties acknowledge that "private dwelling-place" is not defined in the Regulations and that the characterisation of a Station may be determined otherwise than as contemplated by E.1. [Cross-refer the risk allocation in the redrafted clause I and the regulatory-change clause at §2.10.]

**Delete** from E the proposition "in a residential building it sits in common/commercial areas" as a sufficient answer. It is not.

---

### F. Change of Use — **REDRAFT** (one trigger where two are needed; and the Host may lack capacity to give it)

**Answer to Q7 partly, and the materiality mechanic.**

The Regulations create **two independent tests**, and clause F's single 5-business-day notice serves neither well:

- **Quantitative** — s.150(b) sets a 5% materiality threshold in any case other than carbon intensity, and s.153(2) makes a misstatement **negligible** if it is worth less than 5% *of* that threshold. So a handful of incursion sessions is quantitatively survivable — **but only if you can count them**. That is clause C.6's exception log, not a notice clause.
- **Qualitative** — s.151 requires the verification body to assess **material qualitative misstatements** separately. Station misclassification is qualitative. There is no de minimis: either the station is correctly classified or the report misstates it.

So: exception log for the quantitative test (continuous, automatic), plus a **hard immediate notice** for anything touching classification. Two triggers, not one catch-all.

**Litigator's attack on F, and it is a good one: capacity.** A condominium corporation's board owes statutory duties to owners and to the corporation; in most provinces it cannot fetter its future discretion over the use of common elements by private covenant, and a covenant not to change the use of common elements is likely voidable or unenforceable as against the corporation and certainly as against a future board. A landlord similarly cannot covenant not to re-tenant or not to change a lawful use of its own property. **As drafted, F is least enforceable against exactly the counterparties who most need to be bound.** The workable substitute is not a prohibition but a **notice-plus-suspension-plus-termination** mechanic: the Host may change the use, but must tell you, and the consequence is that credits stop and the arrangement can be unwound without damages.

**Replacement wording.**

> **F. Change of use and notification.**
> **F.1 (Immediate notice — classification events.)** The Host shall notify the Distributor **within [24] hours** of becoming aware of any of the following in respect of any Station or the area from which it is accessible: (a) any grant, removal or relaxation of physical or credential access control; (b) any opening of the area to persons other than Permitted Users, whether temporary, seasonal, event-related or after hours; (c) any installation of signage or listing describing the Station as available beyond Permitted Users; (d) any change in the identity or class of Permitted Users, including the addition of visitors, contractors, customers or residents; (e) any change in the use of the Premises or any part of them, including a change of tenant, a conversion to residential use, or the demise of any part to a residential occupant; (f) any listing of a Station on any public map or application; and (g) any notice, order, inquiry or communication from the Minister, an enforcement officer, a verification body, a utility or a provincial programme administrator concerning a Station.
> **F.2 (Consent.)** The Host shall not knowingly make or permit any change described in F.1(a) to (d) without the Distributor's prior written consent, such consent not to be unreasonably withheld where the change does not affect the classification of the Station.
> **F.3 (Suspension, not damages.)** On notice under F.1 the Distributor may, by notice, suspend credit creation in respect of the affected Station. If the change is not reversed within [30] days, either Party may terminate this Agreement in respect of that Station on [30] days' notice, and **neither Party shall be liable to the other in damages in respect of a change the Host was legally obliged or, in the case of a condominium corporation or landlord, was required by its statutory or fiduciary duties to make** — provided the Host complied with F.1 and F.4.
> **F.4 (Capacity.)** The Host represents that it has capacity to give F.1 and F.2, and where the Host is a condominium corporation, that the board has passed a resolution in the form of Schedule [E] and that F.2 is consistent with the declaration, by-laws and rules.
> **F.5 (Annual certificate.)** The Host shall deliver, not later than [February 15] in each year, a certificate signed by an officer confirming the matters warranted in A.1, C.1, D.3 and E.1 in respect of the preceding compliance period, or specifying each exception.

F.5 is the document a verification body will actually ask for. Build it now.

---

### G. Data, Records and Verification — **REDRAFT** (asks for the wrong data from the wrong party)

**Answer to Q6 — is "kWh and time" sufficient? No, and it is largely redundant.**

kWh and timestamps are what the Distributor already has natively: s.1(1) defines a "charging station" as a device "**capable of communicating with a server … to report the quantity of electricity supplied and the time at which it is supplied**." If the Distributor needs the Host to supply kWh, the device is not a charging station and there are no credits at all (see §2.1).

**What Schedule 11 item 5 actually requires for the host route**, per station and per province:

- (a)(i) the **carbon intensity** of the electricity, under s.75(7), or approved under s.85(1), or the actual CI in a s.123 CI-pathway report;
- (a)(ii) the **serial number** and the **name or identifier** of each station in the province;
- (b)(i) **GPS coordinates to the fifth decimal place** and, if any, the **civic address**;
- (b)(ii)–(iii) the **energy efficiency ratio** for light-duty EVs and for **other classes** of EV;
- (b)(iv) **the quantities of electricity supplied to each of those two groups** — i.e. kWh **split by vehicle class**;
- (c) equivalents for marine-accessible stations;
- (d) the number of provisional credits created.

**What only the Host can supply, and what clause G must therefore extract:**

1. **Vehicle-class attribution** (Sch 11 item 5(b)(iv); s.101(2) Ree). Without it, **s.101(2)(c) forces the lesser EER on the whole station** — a straight credit haircut, not a compliance risk. This is the single most valuable data item in the agreement and clause G does not mention it.
2. **The access-control roster with effective dates and its provenance** — the evidentiary spine of clauses A and C.
3. **Site facts for classification** — signage, gating, hours, observed usage, the site plan.
4. **Civic address and GPS confirmation**, and notice of any municipal address change (Sch 11 item 5(b)(i)).
5. **Electricity source-and-quantity data** if a s.79 election is contemplated — s.79(1) requires input data on the **source and quantity** of the electricity for **24 consecutive months** within the preceding 30 months. If the Premises have behind-the-meter solar, storage, a district system, or a green-power PPA, the default provincial CI under s.75(7) may materially understate the credit — but only the Host holds the generation and consumption data. Clause G does not ask for it.
6. **Marine accessibility** — a yes/no fact about the site (s.101(2)(b), Sch 11 item 5(c)). Trivial to warrant, fatal to miss.
7. **Site access for the verification body** — see below.

**Site access is understated.** Under **s.152(2)(e)** a "site" **includes a charging station**, and **s.152(1)(a)** requires, for an application or report relating to no more than five sites, "a visit by the verification body **to each site at least once every five years**". So verification-body site access is a hard regulatory requirement, not a courtesy. It must be:

- granted to the **verification body** (a third party) and to an **enforcement officer under CEPA**, not merely to the Distributor;
- available on reasonable notice **including after termination**, for the full retention tail;
- extended to **s.152(2)(f)** — "the location of a centralized computer data management system that relates to an application or report" — if any part of the metering or access data originates in the Host's building management system.

**Retention is understated.** s.166(1) requires retention for **10 years after the day the information is recorded or updated, or the report is submitted**. Since a s.120 report for compliance period Y is filed by 30 April Y+1, the tail on that report runs to roughly Y+11, and s.165 requires information to be recorded within 30 days of becoming available. s.166(4) requires records to be kept **at the person's principal place of business in Canada or another place in Canada notified to the Minister** — which matters if the Host's data sits on a US-hosted building management platform. s.168 lets the Minister demand a copy at any point in the tail. "10-year retention" in the draft is short and unanchored.

**Replacement wording (skeleton — this clause should be a schedule).**

> **G. Data, records, verification and access.**
> **G.1 (Distributor-sourced data.)** The Distributor shall procure from each Station and each Network Vendor the session-level data specified in Part 1 of Schedule [H] (station serial and identifier, GPS to five decimals, civic address, session start and end, kWh, authenticating credential, authorisation outcome, connectivity status).
> **G.2 (Host-sourced data.)** The Host shall provide, in the format and at the intervals in Part 2 of Schedule [H]: (a) the Permitted User allowlist with effective dates and the system of record for each entry; (b) the **vehicle class** (light-duty / other, per the *Specifications for Fuel LCA Model CI Calculations*) attributable to each credential, and notice of change within [10] Business Days; (c) confirmation of the civic address and GPS coordinates and notice of any change; (d) whether any Station is accessible to electric marine vessels; (e) the Classification Fact Sheet and the annual certificate under F.5; (f) on request, and where the Distributor elects to determine carbon intensity under section 79 of the Regulations, input data on the **source and quantity** of electricity supplied to the Stations for the 24 consecutive months required by that section, together with metering data for any behind-the-meter generation or storage.
> **G.3 (Verification access.)** The Host shall permit the Distributor, any **verification body** engaged under section 131 of the Regulations, any independent reviewer, and any enforcement officer or analyst under the *Canadian Environmental Protection Act, 1999*, to enter the Premises on [5] Business Days' notice (or without notice in the case of an enforcement officer) to inspect each Station, its metering, the access control system and any centralized computer data management system relating to a Station, and to interview the Host's personnel. The Host acknowledges that under section 152 of the Regulations each Station is a "site" that must be visited by the verification body **at least once every five years**.
> **G.4 (Records and retention.)** Each Party shall record the information it is required to record within **30 days** after it becomes available (section 165) and shall retain it, and any supporting document, for **10 years** after the later of the day it is recorded or updated and the day the report to which it relates is submitted (section 166(1)). The Host shall keep those records **in Canada** at a place notified to the Distributor, and shall provide a copy to the Distributor or the Minister on request (section 168).
> **G.5 (Management representation.)** The Host shall provide to the verification body, on request, a management representation letter in the form required by that body.
> **G.6 (Survival.)** G.3, G.4 and G.5 survive termination or expiry for the period in G.4 and shall be given effect by any successor in title (see §2.6).

**Add a privacy clause** — see §2.11. Session data keyed to an employee's or resident's RFID credential is **personal information**. This agreement currently arranges its disclosure to the Distributor with no lawful basis stated.

---

### H. Credit Ownership — **REDRAFT** (too narrow; and it is the clause the Host's litigator aims at)

**What breaks it.**

1. "Host must not enrol elsewhere" misses the actual double-counting risk, which is **not the Host**. It is (a) the **network vendor** claiming the same kWh under s.102 as a CNO; (b) the **utility** or a **provincial programme** claiming the same kWh; (c) a **parent or affiliate** of either party. The covenant must bind the Host not to *permit any person* to claim, and must be matched by a Distributor covenant that no Network Vendor claims the same kWh.
2. No **warranty of no prior enrolment**, which is the diligence item — a station previously enrolled in a utility or provincial programme may be contractually committed for years.
3. It says nothing about **what the Host gets**, which is the Host litigator's opening (see below).

**Replacement wording.**

> **H. Credits, exclusivity and no double counting.**
> **H.1** All compliance credits created under Part 3 of the Regulations in respect of electricity supplied by the Stations, and all proceeds of their transfer, belong to the Distributor, subject to H.4.
> **H.2 (No prior enrolment.)** The Host represents that no Station and no electricity supplied by a Station is, or has been, enrolled in, claimed under, or committed to any compliance-credit, offset, renewable-energy-certificate, utility incentive or provincial low-carbon-fuel programme, and lists any exceptions in Schedule [I].
> **H.3 (No double counting.)** The Host shall not, and shall not permit any of its affiliates, tenants, occupants, utility or agents to, claim, create, sell or transfer any credit, offset, certificate or attribute in respect of electricity supplied by a Station. The Distributor shall procure that no Network Vendor or charging-network operator creates compliance credits under section 102 of the Regulations in respect of that electricity, and shall indemnify the Host against any claim arising from a breach of this sentence.
> **H.4 (Consideration.)** [Insert the commercial bargain — see §2.4. Do not leave this clause reading as a bare transfer of value for nothing.]

**Host litigator's attack, and it is the strongest one in the file.** As drafted, the Host pays for the electricity, hosts the equipment, bears an uncapped indemnity, accepts an 11-year records tail, and receives — on the face of the draft — nothing. Consequences:

- **Consideration / total failure of consideration.** If the recitals do not state a real, non-nominal consideration, the whole instrument is vulnerable, and every classification recital in clauses A, D and E is read **contra proferentem** against the Distributor that drafted them.
- **Unconscionability.** Inequality of bargaining position plus an improvident bargain is the *Uber v. Heller* framework. A small commercial host, an uncapped indemnity, an unbargained decade of surviving obligations, and no share of a revenue stream the Host's own electricity generates, is a serviceable pleading.
- **Fix:** state the consideration expressly and make it non-nominal — a revenue share on transfers, a fixed per-kWh or per-station fee, free or discounted equipment and O&M, an electricity reimbursement (see §2.4), or some combination — plus an adequacy acknowledgement and a legal-advice acknowledgement.

---

### I. Indemnity — **REDRAFT** (as drafted: not collectable, not proportionate, and no commercial host signs it)

**Answer to Q8: no on all three.**

*Not proportionate.*

- **Uncapped**, against a loss stream (credit value across an 11-year tail) that can exceed the Host's entire benefit from the arrangement by orders of magnitude.
- **Triggered by acts of strangers.** Clause B as drafted makes the Host liable when a passing driver adds the site to PlugShare.
- **Measured in a price the Distributor influences.** Credit value is set by transfers in a market in which the Distributor itself trades; there is no stated valuation date, source or methodology.
- **No carve-out for the Distributor's own conduct.** If the Distributor misclassified the site, mis-declared it under s.21(2)(f)(ii), failed to submit under s.22, or let its own vendor list the station, the Host still indemnifies on a literal reading.
- **No mitigation duty, no notice-and-cure, no conduct-of-claim.** The Distributor could accept an ECCC position without contest and pass the bill on.
- **Contagion.** Under s.158(3) and s.160(2)–(3) the Minister can suspend and cancel **equivalent credits in any of the Distributor's accounts**. A literal "credits lost, cancelled or replaced" indemnity therefore reaches losses on credits that have nothing to do with this site. No host will accept that.

*Not collectable.*

- **Quantification.** The loss is pure economic loss in a volatile instrument. Without a fixed valuation mechanic a court has no measure, and a fixed sum risks being struck as a **penalty** rather than a genuine pre-estimate.
- **Causation.** Where the Distributor's own filing choices, the vendor's configuration and the Host's act all contribute, apportionment is a mess and the Distributor bears the burden.
- **Covenant strength.** An SPV landlord, a nominee, or a condominium corporation with a modest reserve fund cannot pay. If the indemnity matters, it needs a parent guarantee, security, or insurance — and if it is not worth asking for those, it is not worth an uncapped indemnity.

**Replacement wording.**

> **I. Risk allocation.**
> **I.1 (Indemnity.)** Subject to I.2 to I.6, the Host shall indemnify the Distributor against the Credit Loss Amount arising directly from a breach by the Host of clauses A.1, C.1, C.3, C.4, C.5, D.3, E.1, F.1, F.2 or H.2.
> **I.2 (Credit Loss Amount.)** "Credit Loss Amount" means the number of compliance credits that (a) were not created, (b) were cancelled under section 160 of the Regulations, or (c) were required to be replaced under section 158(3) or 160(3), **in each case in respect of the affected Station only**, multiplied by the volume-weighted average price at which the Distributor transferred compliance credits of the same class in arm's-length transactions during the [90] days preceding the date of the Minister's notice, or, if none, the price published by the Minister for that period. **Credits in respect of any other station, project or facility are excluded**, notwithstanding sections 158(3) and 160(3) of the Regulations.
> **I.3 (Cap.)** The Host's aggregate liability under I.1 shall not exceed the greater of (a) [$___] and (b) [100/200]% of the aggregate consideration received by the Host under H.4 in the [24] months preceding the claim. This cap does not apply to fraud or to a breach of D.3 [authority to grant the install right].
> **I.4 (Exclusions.)** The Host is not liable under I.1 to the extent the loss arises from: (a) a third-party listing not caused, authorised or encouraged by the Host, where the Host complied with B.3; (b) any act or omission of the Distributor, a Network Vendor or a charging-network operator, including any failure to submit an agreement under section 22, any declaration under section 21(2)(f)(ii) or Schedule 11, any configuration of a Station, or any election of carbon intensity; (c) a change in the Regulations, in the Minister's published guidance, or in the interpretation of the Regulations; (d) any change the Host was legally obliged, or required by its statutory or fiduciary duties, to make, where the Host complied with F.1; (e) Force Majeure; (f) any matter disclosed in the Classification Fact Sheet or in Schedules [E] or [I]; or (g) any loss the Distributor could have avoided by reasonable mitigation, including by contesting the Minister's position.
> **I.5 (Conduct.)** The Distributor shall notify the Host within [10] Business Days of any notice under section 158(4) or any verification finding that may give rise to a claim, shall allow the Host [30] days to cure or reverse the breach, shall consult the Host before responding, shall not admit, settle or compromise without the Host's consent (not to be unreasonably withheld), and shall use reasonable endeavours to mitigate, including by pursuing correction under section 156.
> **I.6 (Sole remedy; consequential loss.)** I.1 is the Distributor's sole and exclusive remedy in respect of the matters it covers. Neither Party is liable for indirect or consequential loss, loss of profit, loss of opportunity or loss of goodwill.
> **I.7 (Mutual.)** The Distributor shall indemnify the Host against any liability, fine or penalty the Host incurs under the Regulations or the *Canadian Environmental Protection Act, 1999* arising from any report, declaration or filing made by the Distributor, save to the extent caused by information the Host provided in breach of G.2, on the same cap and conduct terms.

I.7 matters because the exposure is genuinely two-way: if the Host knowingly supplies false access or vehicle-class data that lands in a s.120 report, the Host is exposed under **CEPA s.272(1)(k)** (knowingly providing false or misleading information — corporate minimum $500,000 on indictment for a first offence, s.272(3)(a)(i)) or **s.272.1(1)(g)** (negligently). A one-way indemnity misdescribes the risk and will be resisted for that reason alone.

---

### J. Provincial Stacking — **DELETE and rebuild inside H**

"Will not act inconsistently with provincial programme enrolment" is unintelligible as an obligation: it does not say which programme, whose enrolment, or what inconsistency means. There is nothing here a court could enforce and nothing a verifier could test.

The substance belongs in **H.2 and H.3** (no prior enrolment; no double counting by any person). What is left over — the possibility that a provincial low-carbon-fuel or utility programme *permits* stacking with the CFR for the same kWh, or forbids it — is a **due-diligence item per province and per programme**, not a boilerplate covenant. Retain, in its place, a short covenant:

> **J. Other programmes.** Neither Party shall enrol any Station or any electricity supplied by a Station in any other programme without the other's prior written consent. The Distributor is responsible for determining whether participation in any other programme is compatible with the creation of compliance credits under the Regulations, and shall bear the consequences of that determination.

---

## 2. Missing clauses — a charging-site host agreement needs all of these

### 2.1 The device must actually be a "charging station" — **highest priority omission**

s.1(1): a "charging station" is a device "used in Canada to charge the battery on board an electric vehicle by supplying electricity … **and that is capable of communicating with a server**, whether through the Internet or using a cellular signal or connected vehicle communications, **to report the quantity of electricity supplied and the time at which it is supplied**." A device that cannot do that is not a charging station, is not within s.101, and creates nothing. Needs:

- a Distributor representation that each Station meets the s.1(1) definition;
- a covenant to maintain server connectivity, and allocation of responsibility for the connectivity path (whose SIM, whose Wi-Fi, whose backhaul — commonly the Host's network, which makes it a Host obligation with a Host cost);
- a stated **treatment of kWh dispensed while offline** — excluded from Q, logged in the Exception Log, and reconciled from station memory on reconnection if the firmware supports it;
- an uptime/connectivity SLA with a remedy that is *suspension of credit creation*, not damages;
- a covenant against firmware or platform changes that alter classification-relevant configuration without change control.

### 2.2 Metering accuracy and legal metrology — **omitted entirely**

Two independent requirements:

- **s.161(1)(a)**: a person required to record any quantity must determine it "by using one or more measurement devices that meet the requirements of the ***Weights and Measures Act*** and the regulations made under that Act."
- **s.101(2), variable Q**: the quantity is "as measured by charging stations … **subject to any measurement accuracy or load test tolerances for charging stations that are indicated in the document entitled *Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices*, published by the United States National Institute of Standards and Technology**" (NIST Handbook 44).

Needs: a Distributor warranty of compliant, correctly-classed metering; calibration and periodic verification obligations with a stated cadence and cost allocation; retention of calibration certificates within the s.166 tail; a dispute mechanic if metering is found out of tolerance (retrospective adjustment and s.156 re-submission within 60 days of learning of the error); and confirmation of the position under the ***Electricity and Gas Inspection Act*** / Measurement Canada framework where kWh is sold or billed rather than merely recorded.

### 2.3 Electricity supply — who supplies, who pays, and whose meter

The draft says nothing about the electrons. This is both the largest cost item and a determinant of credit yield.

- **Who supplies.** Confirm the Host is the customer of record and that on-supply to the Distributor or to users does not make anyone a reseller or distributor requiring authorisation under the applicable provincial energy legislation. In several provinces the resale of electricity is regulated.
- **Who pays.** Fix it expressly: Host pays and is reimbursed at a stated rate; or a sub-meter with a monthly true-up; or the Distributor takes assignment of a dedicated service. Silence here is what makes clause H look like value for nothing.
- **Demand charges.** DC fast charging on a commercial account can move the Host into a higher demand tier for the whole building. Allocate it, or the Host will discover it in month two and stop cooperating.
- **Carbon intensity.** By default CIe is the provincial figure under **s.75(7)** (Schedule 6 s.9 or the *Specifications*). If the Host has behind-the-meter renewables, storage, or a green PPA, the **s.79** election may raise the credit yield materially — but s.79(1) needs 24 consecutive months of input data on the source and quantity, an approval under s.85(1), and the application itself must be verified under **s.130(1)(a)**. Decide now whether you are pursuing it; if so, the Host's data obligations and its right to a share of the uplift both need drafting.
- **Capacity, load management, and upgrades.** Who pays for service upgrades, who owns them, and what happens on removal.

### 2.4 Consideration and revenue share — **omitted, and it is the deal**

State the bargain: revenue share on transfers, per-kWh fee, per-station fee, equipment and O&M at no cost, electricity reimbursement, or a combination. Include: the payment mechanic and timing (credits are deposited under s.24(1) only after the s.120 report, i.e. well after the compliance period ends, so the Host is being paid up to 16 months in arrears — say so and price it); a **reporting obligation to the Host** showing credits created, transferred and at what price; audit rights over the calculation; and an adequacy-of-consideration acknowledgement.

### 2.5 Distributor's own regulatory covenants — **omitted**

The Host is signing up to an 11-year evidentiary burden with no assurance the Distributor will do its part. Needs: the Distributor is and will remain a registered creator under s.25; it will submit any s.21 agreement under s.22 and give the s.26(3) notice; it will file the s.120 report by 30 April and obtain verification under s.131; it will notify the Host of any s.156 re-submission, any s.157 notice of error, any s.158 suspension, any adverse or qualified verification opinion under s.154(b)–(d), and any inspection or enforcement contact; and it will not make any declaration inconsistent with clause A.

### 2.6 Assignment, successors and binding the land — **omitted, and it is a Host deal-blocker**

A bare licence does not bind a purchaser for value without notice. With no assignment machinery:

- the Distributor's rights evaporate on a sale of the Premises, mid-compliance-period, with no remedy against the buyer;
- **the Host cannot sell the building cleanly**, because it must impose obligations it has no mechanism to impose. Any commercial landlord's counsel will stop at this clause.

Needs, in ascending order of strength: a covenant to procure a **purchaser's direct covenant** (deed of adherence) as a condition of any sale or lease of the Premises; a **notice on title** (caution/caveat/notice of licence, per province); or, best, a **registrable interest** — an easement in gross or a long licence coupled with an interest, registered against title, with lender consent. Also needed: change-of-control provisions on both sides; the Distributor's right to assign to a financier or on a sale of its business; and — important — an acknowledgement that any restriction on the Host's dealings with the Premises is limited to what is necessary to preserve the arrangement, so the fix does not itself become an **unreasonable restraint on alienation**.

### 2.7 End of term, removal and make-good — **omitted**

Needs: the term (aligned to compliance periods per s.21(2)(b)); renewal; termination for convenience with a notice period that does not strand a part-completed compliance period; termination for breach; automatic termination if the Host loses the ability to grant the install right; removal window and make-good standard (surface restoration, electrical decommissioning, cap-off); the option for the Host to purchase or for title to transfer at nil value; the treatment of credits **already created** but not yet reported or deposited (they must continue to be reportable, which requires clause G to survive); and abandonment — what happens if the Distributor simply walks away.

### 2.8 The records and verification tail — **understated, and it needs to be priced**

Aggregate the real tail: **s.165** (record within 30 days) + **s.166(1)** (10 years from the later of recording and submission) + **s.120(1)** (report filed by 30 April following the compliance period) + **s.152(1)(a)** (verification-body visit to each station at least once every five years) + **s.168** (Minister may demand a copy at any time in the tail) = obligations running roughly **11 years past the last compliance period**, including site access after the equipment has been removed and possibly after the Host has sold the building.

A Host's litigator will call this out as an unbargained-for decade of obligation surviving a terminated licence, and use it for unconscionability. **The answer is to price it and cap it, not to hide it in a survival clause:** a stated Tail Period, a defined and limited set of surviving obligations, a fee or a retained deposit for the Tail Period, a right for the Host to discharge its retention obligation by **delivering the records to the Distributor** (which is what s.166 permits in substance, since the Distributor is the person required to retain them), and an obligation to bind a purchaser to the tail under §2.6.

### 2.9 Force majeure — **omitted**

Standard force majeure, plus: a carve-out so force majeure suspends performance but does not excuse the **notice** obligations in F.1 or the record obligations in G.4; and an express statement that force majeure suspends credit creation without liability.

### 2.10 Regulatory change — **omitted, and this is a live risk in 2026**

The CFR is under active review, s.102(1)(a) has a hard-coded sunset (installation on or before 31 December 2030; compliance periods beginning on or before 1 January 2035), and the classification concepts here are undefined and could be defined by amendment or by ECCC guidance at any time. Needs:

- a **change-in-law** clause distinguishing (i) amendment or repeal of the Regulations, (ii) new or changed Minister's guidance, and (iii) a determination by the Minister, a verification body or a court that a Station is misclassified;
- for each: renegotiation in good faith, then suspension of credit creation, then termination without damages;
- an express allocation that **regulatory-change risk sits with the Distributor**, which is the party taking the credit upside — carved out of the indemnity at I.4(c);
- a most-favoured-interpretation covenant: the Parties will adopt whatever classification the Minister's guidance requires, and neither is liable for the consequences of a change.

### 2.11 Privacy — **omitted, and it is a real exposure**

Session data keyed to an RFID/fob or account identifier is **personal information about an identifiable individual**: it reveals when a named employee or resident arrived, left, and how far they drove. The agreement currently arranges for the Host to hand that to the Distributor, and for the Distributor to hand it to a verification body and potentially to the Minister, with no lawful basis stated. Needs: identification of the parties' roles; the basis for collection, use and disclosure (employee consent or the applicable employment-purpose exception; notice under condominium rules for residents); **pseudonymisation of credential identifiers before disclosure** to the Distributor wherever the verification purpose permits; a data-processing schedule; breach notification; a cross-border transfer clause tied to **s.166(4)** (records must be kept in Canada or at a notified Canadian place, which conflicts with US-hosted back-office platforms); and retention aligned to the s.166 tail rather than to a shorter privacy-policy default.

### 2.12 Standard machinery — **omitted**

Definitions and interpretation (define "Regulations" by citation *and* as amended from time to time; define Compliance Period by reference to the Regulations, not by calendar); insurance (Host property and liability; Distributor liability, product, and equipment-in-transit — with cross-additional-insured and waiver of subrogation); electrical safety, permits and code compliance, and who obtains them; O&M responsibility and response times; damage to the Stations by Host personnel or Permitted Users; taxes and the GST/HST treatment of both the credit revenue and the electricity reimbursement; confidentiality with an express carve-out permitting disclosure to a verification body, the Minister and enforcement officers; notices; dispute resolution and governing law (the province of the Premises, with the federal regulatory questions carved out of arbitration since only the Minister determines them); entire agreement; severability; and counterparts and electronic execution consistent with the s.21(2) authorised-agent signature requirement.

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## 3. Priority order for counsel

1. **§0.1 — s.21/s.22 double-duty drafting and the D.5 fallback conversion.** Eliminates total loss. Cheapest fix in the document.
2. **§D.3/D.4 — authority to grant the install right, with landlord/mortgagee/condo consents as conditions precedent.** Second-largest total-loss risk.
3. **§0.3 / §B.1 — the charging-network operator firewall: data ownership and roaming configuration.** This is what actually keeps you out of s.102(1)(b), not the conjunctive "and".
4. **§C — real access control, free-vend-off, and the exception log.** Converts classification risk into quantified, immaterial risk under s.150(b)/s.153(2).
5. **§2.1 / §2.2 — the device is a charging station; metering meets the *Weights and Measures Act* and NIST HB-44.** Foundational; currently absent.
6. **§G.2(b) — vehicle-class attribution.** Direct yield, not just risk: without it s.101(2)(c) applies the lesser EER.
7. **§2.4 / §2.3 — consideration and electricity cost.** Without these the Host does not sign, and every recital is read contra proferentem.
8. **§I — cap, carve-outs, valuation mechanic, mutuality.** Without these the Host does not sign.
9. **§2.6 / §2.8 — assignment and the priced 11-year tail.** Without these the Host's real-estate counsel does not sign.
10. **§E — do not attempt s.101 on a resident-only common-element station without a written opinion.**

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*Drafting analysis only, not legal advice. Statutory text verified against the consolidated English and French versions of SOR/2022-140 at laws-lois.justice.gc.ca and against CEPA 1999 ss.272 and 272.1 (Act current to 2026-06-21). The characterisation of undefined terms — "private dwelling-place", "intended primarily for use by the public" — is untested; there is no reported jurisprudence and no ECCC guidance on either as at the date of this review. Confirm current guidance and any CFR amendment before finalising.*