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Ford government’s judicial challenge to Canada’s New Climate Change Control Act starts April 15 - remarkably broad support for federal law in pre-filed arguments

Sunday, April 14th 2019 2:13:07pm

By David Estrin and Isabel Dávila Pereira

Canada has remarkably broad support from unlikely allies for its new law to fight climate change in the April 15 -18 Ontario Court of Appeal judicial challenge brought by the Ford government. Even major carbon emitters are joining with environmental groups to support the Federal law.  

Ontario’s original argument complained that the Federal law “wrongly puts a price on carbon” and that Ottawa lacks the constitutional jurisdiction to do that.  Premier Ford himself stated “It’s just another cash grab.”  However, in February 2019, Ontario proposed a plan to do exactly that. Despite this seriously hypocritical flip-flop, Ontario has not withdrawn its court challenge to the Federal law. Canada’s key argument is that its law is valid because climate change is a matter of national concern, one that affects the “Peace, Order and good Government of Canada” (POGG) referenced in s. 91 of the Constitution Act, 1867.

The “emerging realities” of climate change for Canada and the world are stark. Canada is the world’s 9th largest GHG emitting region. Unless Canada and other high emitting nations take effective and rapid action to reduce GHG emissions - as they committed to do under the Paris Agreement - we will all be “roasted, toasted and grilled”. Canada must go on a war footing to bring down GHG emissions, but only the Federal government has authority to make this happen across Canada.  

But there is much to be concerned about if Ontario wins, as is evident from Ford’s statements and from his government’s latest GHG “plan” that is one-third less ambitious in reducing GHG emissions than under the previous Ontario cap-and-trade law that Ford axed in 2018 as his very first order of business.

Fortunately, the Court will hear from 12 non-governmental organizations, and 10 support Canada’s position. They include the Canadian Public Health Association, the expert, non-partisan Eco-Fiscal Commission, some of the world’s largest carbon producers and GHG emitters, public utilities, a national youth climate coalition, three national environmental organizations as well as First Nations. The Province of B.C. also supports the federal law. Ontario is supported by Saskatchewan and New Brunswick, an Alberta political party and the Canadian Taxpayers Association.  

More details of the case, the arguments and further insights are found in a two-part article by these authors originally published April 9 and 10, 2019 in the Lawyer’s Daily (www.thelawyersdaily.ca) part of LexisNexis Canada Inc. These articles can be accessed here for Part 1 and here for Part 2.

David Estrin is Distinguished Adjunct Professor and Co-Director of the Environmental Justice and Sustainability Clinic, Osgoode Hall Law School at York University. He is a certified environmental law specialist with over four decades of practicing, writing, and teaching experience, the founding editor of the Canadian Environmental Law Reports and co-chaired the International Bar Association President’s Task Force on Climate Change Justice and Human Rights. Isabel Dávila Pereira, a law student in the Osgoode EJS Clinic, helped prepare this article.