Ottawa’s Carbon Pricing Law Valid, Ontario’s Top Court Rules

June 28, 2019 Updated: June 28, 2019

TORONTO—The federal government’s carbon pricing scheme is constitutionally sound, Ontario’s top court ruled in a split decision on Friday.

The Greenhouse Gas Pollution Pricing Act, enacted in April, is within Parliament’s jurisdiction to legislate in relation to matters of “national concern,” Chief Justice George Strathy wrote on behalf of the court.

Ontario’s Progressive Conservative government under Premier Doug Ford, who calls the carbon charge an illegal tax, had argued the act is a violation of the Constitution because it allows the federal government to intrude on provincial jurisdiction. During four days of submissions in April, Ontario insisted the act would undermine co-operative federalism.

Provincial lawyers told the Court of Appeal the federal government would end up with the power to regulate almost every facet of life—such as when you can drive, where you can live, or whether you can have a wood-burning fireplace. They also argued the province has its own approach to the climate-change issue.

For their part, federal lawyers argued the province was fearmongering. The law, they said, would not result in an expansion of constitutional powers that would give Ottawa carte blanche to regulate issues that fall within provincial jurisdiction.

Justice Grant Huscroft said climate change did not amount to an “emergency case” and warned against allowing rhetoric to colour the constitutional analysis.

“Carbon pricing is only one approach to addressing (greenhouse gas) emissions—one of many policy options that might be chosen, whether alone or as part of a broader strategy,” Huscroft said. “There are many ways to address climate change and the provinces have ample authority to pursue them.”

The federal act currently only applies in four Conservative provinces—Ontario, Manitoba, New Brunswick, and Saskatchewan—which Ottawa says don’t meet national standards.

Some observers said the Ontario challenge was more about politics than the environment.

The issue is expected to be ultimately decided before the country’s top court. In May, Saskatchewan’s top court in a 3-2 decision upheld the carbon pricing law as constitutional in a similar case. The Supreme Court of Canada has already said it will hear Saskatchewan’s challenge of that ruling in December—after the October federal election.

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