The short answer is no according to the majority reasons of the Ontario Divisional Court given on October 11, 2019 in Greenpeace Canada v. Minister of the Environment (Ontario), 2019 ONSC 5629.


The Climate Change Mitigation and Low-Carbon Economy Act, SO 2016, c.7. established a cap and trade program, a market mechanism that set an economy-wide cap on greenhouse gas emissions. It required major emitters to limit their emissions at or below their allotted cap or to purchase emissions credits from others with a surplus to sell. Operational aspects of the Act were implemented through the Cap and Trade Program Regulation O.R. 144/16 (Cap and Trade Regulation). Immediately following the Ontario provincial election in 2018, the new government enacted a Regulation (the "Cancelling Regulation") revoking the Cap and Trade Regulation. This had the effect of rendering Ontario's cap and trade program inoperable. The Cancelling Regulation also made it an offence to engage in transactions under the cap and trade program on potential pain of imprisonment.

Under Ontario's Environmental Bill of Rights, 1993 SO 1993, c.28 ("The EBR"), the Minister was required to publish prior notice in the Environmental Registry before cancelling the Cap and Trade Regulation, consult with Ontarians by inviting them to submit comments on the proposed Cancelling Regulation, consider any comments made by the public as a result of this process, and advise publicly of the effect, if any, public participation had on the government's decision-making on the proposal.

After the Cancelling Regulation was enacted, on July 6, 2018, the Ministry of the Environment, Conservation and Parks posted a "Regulation Exemption Notice" on the Environmental Registry, advising that the Minister had invoked the exception clause contained in s.30(1) of the EBR. That clause provides that (public notice of a proposed regulation) do[es] not apply where, in the minister's opinion, the environmentally significant aspects of a proposal for a...regulation...have already been considered in a process of public participation, under this Act, under another Act or otherwise, that was substantially equivalent to the process required in relation to the proposal under this Act; The Regulation Exemption Notice explained that the Minister was of the opinion that the recent Ontario election was a process of public participation that was substantially equivalent to the process required under the EBR and that the environmentally significant aspects of the Cancellation Regulation were considered during that process because the government had made a clear election platform commitment to end the cap and trade program. In Divisional Court the Minister's position was that the election victory confirmed that process.


Greenpeace sought a declaration from the Divisional Court that the Minister's use of the exemption power in s.30(1) of the EBR was unlawful, that the Cancelling Regulation had been enacted without the government first complying with the EBR, and therefore that the new regulation was ultra vires (without lawful authority and/or without jurisdiction). Greenpeace also sought an order that the Minister not again rely on provincial general election results to justify exemptions under the EBR.

At least two of the three judges on the Divisional Court Panel rejected the Ministers' use of the exemption power this argument while the third, Myers J., was "dubious" that the Minister's opinion on equivalency was reviewable (at par. 105). The view of the majority on the equivalency between an election and the process prescribed under the EBR was summarized by Mew J. as follows:

"[85]...The EBR provides for a comprehensive process that goes well beyond the blandishments of the campaign trail.

[86] It may be that had the government done what the EBR required it to, it would have made no difference. But it would be inappropriate to presume that any government would simply ignore the product of any consultation, no matter how firm its mindset going in to the process.

[87] While I come to a different conclusion than my colleague Corbett J. on whether declaratory relief is appropriate, I am in substantial agreement with his reasons for finding that Ontario was required to engage in a process of public participation before it enacted the Cancelling Regulation terminating Ontario's cap and trade programme. The preceding election did not relieve it of that obligation."

Ultimately, Greenpeace's application for relief failed in spite of the Minister's initial non-compliance with the public consultation process under the EBR. Following the illegal Cancellation Regulation, the Legislature once back in session, had gone on to repeal the statute which had enabled the Cap and Trade Regulation. This time, the Minister provided notice and a full opportunity for public comment as required under the EBR. The Minister also enacted a further regulation revoking the operational regulation that was the subject of the Divisional Court proceeding.

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