Three Courts Of Appeal Weigh In On The Greenhouse Gas Pollution Pricing Act Reference

• Published date: 18 May 2020
• Author: Ms Ricki-Lee Gerbrandt and Isabelle Lam
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Climate Change, Clean Air / Pollution
• Law Firm: Lawson Lundell LLP

On June 21, 2018, Parliament's Greenhouse Gas Pollution Pricing Act (the Act) came into force. The Act sought to mitigate climate change by applying minimum national pricing standards for greenhouse gas (GHG) emissions to listed provinces that had not adopted sufficiently stringent pricing mechanisms.¹ Part 1 imposed a fuel charge to 22 listed GHG-producing fuels. Part 2 established an output-based pricing system (OBPS) for GHG emissions by large industrial facilities. Facilities that exceeded applicable emissions limits were required to pay the OBPS charge.

The provinces of Saskatchewan, Ontario, and Alberta brought the question of the Act's constitutionality to the respective provincial Courts of Appeal (the References), alleging that Parliament had exceeded the scope of its authority in legislating the Act. A majority of the Saskatchewan Court of Appeal and Ontario Court of Appeal found the Act constitutional under Parliament's power to make laws for the peace, order, and good government (POGG) of Canada under its national concern branch. In contrast, a majority of the Alberta Court of Appeal found the Act unconstitutional.

Division of Powers Analysis

Sections 91 and 92 of the Canadian Constitution Act, 1867 distribute heads of power between the federal and provincial government respectively. Section 91 also gives Parliament the residuary POGG power. In a division of powers analysis, the court considers the issue of whether the law in question falls within the jurisdiction of Parliament or the provincial legislatures in a two-step test. First, the court will 'characterize' the impugned law by identifying the pith and substance of the law (the dominant characteristic of the law)² by examining the purpose and effects of the law. The court will then 'classify' the law as falling within either a federal or provincial head of power.

National Concern Branch of Parliament's POGG Power

There are three branches to Parliament's POGG power: (1) the gap branch; (2) the emergency branch; and (3) the national concern branch. In all three References, the federal government argued that the national concern branch of POGG permitted it to enact the Act. The national concern branch applies to matters that did not exist at Confederation or to matters that were originally of a local or private nature in a province that have since become matters of national concern.³ In the leading case of R v Crown Zellerbach Canada Ltd., the Supreme Court of Canada established a two-part...