Ontario files appeal to SCC in carbon tax case

Ontario’s provincial government has formally filed its appeal to the Supreme Court of Canada on its dispute over the federal carbon tax regime.

The provincial government said on Wednesday that it would be appealing the constitutionality of the Greenhouse Gas Pollution Pricing Act, escalating it from the Ontario Court of Appeal.

"In June, we were disappointed to learn that in a split decision, the Ontario Court of Appeal did not accept our position that the federal carbon tax is unconstitutional,” Jeff Yurek, Minister of the Environment, Conservation and Parks, said in a statement.

Yurek also noted that Ontario intervened in Saskatchewan's appeal of its reference to the Supreme Court of Canada, Alberta's reference to the Alberta Court of Appeal, and Manitoba's application for judicial review at the Federal Court.

The announcement comes after Ontario Premier Doug Ford said last week that an upcoming election should be the forum for a decision on the tax.

“This carbon tax, it's not going to be the courts that are going to decide. The people are going to decide when the election is held," he said, according to the Canadian Press. "Once the people decide, I believe in democracy, I respect democracy, we move on. The people will have the opportunity, not the courts."

The Globe and Mail reported earlier this week that a re-elected Liberal government “would review the levy with provinces before deciding how to proceed,” citing an interview with Minister of Environment and Climate Change Catherine McKenna.

At the end of June, a decision written by Chief Justice of Ontario George Strathy said the Greenhouse Gas Pollution Pricing Act was constitutional, and within parliament’s jurisdiction to legislate.

“The charges imposed by the Act are themselves constitutional. They are regulatory in nature and connected to the purposes of the Act. They are not taxes,” wrote Strathy.

Associate Chief Justice Alexandra Hoy wrote in a concurring opinion that while she agreed that the act was constitutional, Strathy’s description of the act “risks an unnecessarily broad impingement on provincial jurisdiction.”

Justice Grant Huscroft, in a dissenting opinion, wrote that he agreed with the chief justice that that “Canada’s assertion of authority” over greenhouse gases “cannot be supported” under the national concern branch of the Peace, Order and Good Government power.

“However, I disagree with the Chief Justice’s reformulation of Canada’s position,” wrote Huscroft. “I appreciate that federalism concerns seem arid when the country is faced with a major challenge like climate change. As long as something gets done, it may seem unimportant which level of government does it. But federalism is no constitutional nicety; it is a defining feature of the Canadian constitutional order that governs the way in which even the most serious problems must be addressed, and it is the court’s obligation to keep the balance of power between the levels of government in check.”