Court hears Ontario is ‘alarmist’ over federal carbon pricing powers

TORONTO — Ontario is being alarmist in its fight against Ottawa’s carbon pricing law by suggesting the federal government is grabbing new powers that would allow it to regulate when people drive or where they live, the province’s top court heard on April 16.

In her submissions, a federal lawyer said the law only aims to prompt people to change their ways to reduce dangerous global-warming pollution that respects no provincial boundaries.

“There is a gap in Canada’s ability as a nation to meet the challenge as it now faces,” Sharlene Telles-Langdon told the Ontario Court of Appeal. “The federal power is directed toward a national measure – one that cannot be adopted by the provinces.”

Telles-Langdon stressed the urgency in cutting greenhouse gases to head off potentially catastrophic global warming. The provinces, she said, simply can’t do it on their own.

At issue is the constitutional validity of federal legislation that kicked in on April 1. The Greenhouse Gas Pollution Pricing Act, which levies a charge on gasoline, other fossil and on industrial polluters, only applies in provinces such as Ontario that have no carbon-pricing regime of their own that meets national standards.

On April 15, a provincial lawyer denounced the act as unconstitutional, saying it stomps on provincial turf and would undermine co-operative federalism. But Telles-Langdon told the five-justice panel the federal law respects provincial authority.

“The act itself intrudes minimally on provincial jurisdiction,” Telles-Langdon said. “What it does is ensure a national system.”

Carbon pricing will have a significant impact on Canada’s total greenhouse gas emissions, the lawyer said, prompting Justice James MacPherson to point out that Ontario has slashed its emissions over a 14-year period by 22% — largely because the previous government shuttered coal-fired plants.

“Why not just leave them alone?” MacPherson asked.

“It’s not just Ontario that we have to worry about. It’s Canada as a whole,” Telles-Langdon said, noting Saskatchewan’s emissions have gone up. “Ontario has had great results. Unfortunately, Ontario can do nothing about what is happening in other provinces.”

The justices pressed the lawyer to explain how allowing Ottawa to regulate the swath of human activity that increases greenhouse gas emissions would stop it from encroaching further onto provincial turf – such as banning wood-burning fireplaces or setting a national maximum temperature for heating homes.

“You don’t have an existing (constitutional) leg to stand on,” Justice Grant Huscroft said. “You’re asking us to change the balance of power.”

“The federal act respects provincial jurisdiction,” Telles-Langdon replied. “This is a scheme that is directed toward controlling the total emissions at a national level. It is the least intrusive and least-cost method of reducing greenhouse gas emissions. There’s no displacement of provincial powers.”

“They didn’t want to do the thing you’re now making them do?” Huscroft said.

Calling the emissions the “quintessential international pollutant,” Telles-Langdon said Canadians are in a new era in which climate change has become a national problem. The provinces, she said, wanted a pan-Canadian system to avoid conflicts among them.

The act, she said, amounts to a minimally intrusive “price signal” that is effective in encouraging people and industries to change their behaviour. What it does not do, she said, is tell businesses and industries how to operate.

“The federal government hasn’t said you must do this and you must not do that. It’s sent a price signal.”

Ontario Progressive Conservative Premier Doug Ford has denounced the law as an illegal tax grab that will force up the price of gasoline and heating fuel. Ottawa says all the money it collects will go back to those in the jurisdiction that paid the charge.