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...