Ontario Court of Appeal decides the federal Greenhouse Gas Pollution Pricing Act is constitutional

28 June 2019

Today, the Ontario Court of Appeal released its decision confirming that the federal Greenhouse Gas Pollution Pricing Act (the "GGPPA" or the "Act") is constitutional. This is the second appellate court decision to uphold this Act. The Saskatchewan Court of Appeal concluded the GGPPA is constitutional earlier this year.

In Ontario the Reference was heard by five judges. Four of the judges concluded the Act is constitutional. Chief Justice Strathy wrote the decision on behalf of the majority, with Associate Chief Justice Hoy concurring. One judge, Justice Huscroft, dissented and stated that, in his opinion, the Act is unconstitutional.

This Reference did not address whether or not climate change is taking place. As Chief Justice Strathy explained, "[t]here is no dispute that global climate change is taking place and that human activities are the primary cause." All of the parties agreed that climate change was a real and pressing problem. Nor was the case about whether carbon pricing is the best way to address climate change.

Instead, this was a case about whether the federal government has the authority to pass the GGPPA. The Court of Appeal decision confirms that Canada does have the jurisdiction to implement minimum national standards to reduce GHG emissions.

What does all of this mean for Canadian businesses? It means the GGPPA continues to be in force and businesses subject to the Act must comply. Those provinces with alternative strategies for addressing GHG emissions may also continue with their plans.

The Ontario Court of Appeal's decision is unlikely to be the final word on the GGPPA and a national carbon price. The Government of Saskatchewan is appealing the Saskatchewan Court of Appeal's Decision to the Supreme Court of Canada, and the Government of Ontario also has the right to appeal today's Decision. In addition, Alberta has recently referred the same constitutional question to its Court of Appeal and Manitoba is launching an application for judicial review in the Federal Court of Appeal.

Environmental lawyers from Gowling WLG represented the Canadian Public Health Association ("CPHA") as an intervenor in the Saskatchewan and Ontario Reference cases.

CPHA is a non-governmental organization that has represented the interests of public health in Canada for more than 100 years. CPHA's intervention in the Ontario and Saskatchewan Reference cases continues CPHA's tradition of bringing forward non-partisan, evidence-based policy recommendations to address the public health threats facing Canadians today.

Jennifer King, Michael Finley and Liane Langstaff, from Gowling WLG's Environmental Law Group appeared on behalf of CPHA. Gowling WLG continues to monitor these important court challenges in its role as intervenor counsel. For more information, please contact any member of our team.

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