On September 14, 2018, Ontario announced it has filed a reference with the Ontario Court of Appeal challenging the constitutionality of the federal Greenhouse Gas Pollution Pricing Act (GHG Pollution Pricing Act).
On August 1, 2018, by Order-in-Council, Ontario decided to submit a reference to the Ontario Court of Appeal for determination of whether the GHG Pollution Pricing Act, is unconstitutional in whole or in part. On August 30, 2018, the Ontario Court of Appeal issued a scheduling order. Parties wishing to intervene in the reference must serve a motion for leave to intervene on the Attorney General of Ontario and on the Attorney General of Canada and file the motion with the Court by December 21, 2018. The hearing of the reference will take place April 15-18, 2019 in Toronto.
According to its September 14, 2018 announcement, Ontario's position is that the federal legislation imposes an unconstitutional tax on Ontarians because: (1) putting a price on GHG emissions is not within the power of the federal government, and (2) the GHG Pollution Pricing Act imposes unconstitutional taxes contrary to Section 53 of the Constitution Act, 1867. With respect to the constitutional division of powers argument, the province of Ontario's announcement indicates that the province's position is that "provinces are capable of regulating greenhouse gas emissions themselves and there is no need to expand the scope of the federal government's powers to allow it to impose a one-size-fits-all federal carbon price. Greenhouse gases are caused by a wide range of activity and are not the kind of single, indivisible matter that the federal government can regulate as a national concern." With respect to the province's argument that the federal legislation is contrary to section 53 of the Constitution Act, Ontario states that the GHG Pollution Pricing Act imposes charges that are "unconstitutional, disguised taxes". The province's position is that the federal legislation "does not require the funds to be used for the reduction of greenhouse gas emissions" and as such "there is not a sufficient link between the charges and the stated regulatory purpose ... for the charges to be valid."
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