Ontario Files Argument in Court Challenge of Federal Carbon Tax Act

Written by on September 17, 2018. Posted in Environmental laws

On September 14, 2018, the government of Ontario filed a statement of particulars in the constitutional challenge of the federal government’s Greenhouse Gas Pollution Pricing Act filed on August 1, 2018.

By Order in Council the Province set out the question to be addressed by the court as: “Is the Greenhouse Gas Pollution Pricing Act (Part 5 of the Budget Implementation Act, 2018, No. 1, SC 2018, c. 12) unconstitutional in whole or in part?”

On August 30, 2018, the court issued a scheduling order setting out the timetable for the reference case, which required the province to file a statement of the particulars of the arguments that it will advance as to why the Greenhouse Gas Pollution Pricing Act is unconstitutional.

This statement of particulars outlines that the Province will make the following two arguments:

(1) Putting a price on greenhouse gas emissions is not within the power of the federal government. Provinces are capable of regulating greenhouse gas emissions themselves and there is no need to expand the scope of the federal government’s powers to allow it to impose a one-size-fits-all federal carbon price. Greenhouse gases are caused by a wide range of activity and are not the kind of single, indivisible matter that the federal government can regulate as a national concern.

(2) The federal act imposes unconstitutional taxes contrary to Section 53 of the Constitution Act, 1867. The act does not require the funds to be used for the reduction of greenhouse gas emissions. As a result, there is not a sufficient link between the charges and the stated regulatory purpose – reducing greenhouse gases – for the charges to be valid. Accordingly, the charges imposed by the act are unconstitutional, disguised taxes.

The scheduling order also indicates that parties wishing to intervene in the reference must serve their materials by December 21, 2018. The reference itself will be heard from April 15-18, 2019 in Toronto.