Canada: Ontario Court Of Appeal Finds That Worsening GHG Emissions Tip The Scales In Favour Of Section 91 POGG Powers

On August 28, 2019, the Government of Ontario filed its appeal of the June 28, 2019 Ontario Court of Appeal decision in the constitutional reference about the Federal Greenhouse Gas Pollution Pricing Act.1 The reference, heard by the Ontario Court of Appeal, addressed whether the Greenhouse Gas Pollution Pricing Act was unconstitutional in whole or in part.

The Ontario Court of Appeal delivered a majority decision written by Justice Strathy and concurred by Justices MacPherson and Sharpe with a minority decision by Justice Hoy, concurring in the result with a slightly different interpretation of the pith and substance analysis. Justice Huscroft dissented.

The majority and minority decisions find the Greenhouse Gas Pollution Pricing Act to be constitutional as a matter of national concern in furtherance of the federal Peace, Order and Good Governance (POGG) power found in section 91 of the Constitution Act, 1867.

Justice Strathy confirms shared constitutional responsibility for environment

In coming to his conclusion, Justice Strathy reviews the background of greenhouse gas (GHG) emissions and climate change and states as a fact that there is "no dispute that global climate change is taking place and that human activities are the primary cause." 2 Justice Strathy concludes that "the environment is an area of shared constitutional responsibility." 3 He further states that "moreover, as a practical matter and indeed as a legislative matter, there is nothing these provinces and territories can do to address the emission of GHGs by their geographic neighbours and constitutional partners. Without a collective national response all they can do is prepare for the worst." 4

Justice Strathy notes that the court is not being asked to decide if the GHG emissions pricing scheme under the Greenhouse Gas Pollution Pricing Act is a good, correct or effective policy, only whether it is constitutional. 5

Justice Strathy comes to the conclusion that "there is today a greater appreciation that environmental pollution can transcend national and international boundaries and it is no longer thought of as a purely local concern." 6 He references R v Hydro-Québec to support this transition, where the Supreme Court of Canada says "...the protection of "the environment" has become a matter of "superordinate importance, and one in which all levels of government and numerous organs of the international community have become increasingly engaged." 7

Determining the constitutionality of legislation on federalism grounds involves two considerations – first, the characterization, or "pith and substance", of the challenged law, and second, the validity of the classification of the legislation under the applicable federal head of power, in this case, the national concern branch of the federal Peace, Order and Good Governance (POGG) power. 8

Characterization – Pith and Substance

The characterization of the pith and substance focuses on the examination of the purpose and effects, both the legal effects and practical consequences of the law, by reviewing intrinsic and extrinsic evidence.

Justice Strathy reviews many cases and the Preamble to the Greenhouse Gas Pollution Pricing Act in completing the characterization analysis9, and concludes that Canada's interpretation of the pith and substance is too broad and Ontario's is too narrow. 10 Justice Strathy finds the pith and substance that is just right as "establishing minimum national standards to reduce greenhouse gas emissions", 11 with the means by which to achieve this being "a minimum national standard of stringency for the pricing of GHG emissions." 12

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1 Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544.

2 Ibid, para 7.

3 Ibid, para 138.

4 Ibid, para 20.

5 Ibid, para 109.

6 Ibid, para 80

7 Ibid, quoting R v Hydro-Quebec, [1997] 3 SCR 213 at paras 85, 123, per La Forest J.

8 Ibid, paras 67-69.

9 Ibid, para 72 reviewing R v Crown Zellerbach, [1988] 1 SCR 401; Reference re Firearms Act (Can), 2000 SCC 31, [2000], Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3; Reference re Securities Act, 2011 SCC 66; Re: Anti-Inflation Act, [1976] 2 SCR 373; Rogers Communications Inc v Châteauguay (City), 2016 SCC 23; Reference re Employment Insurance Act (Can), ss 22 and 23, 2005 SCC 56.

10 Ibid, paras 73-74.

11 Ibid, para 77.

12 Ibid.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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