Comments by ministers in legislature and media used against government in carbon tax sticker ruling

The Superior Court ruling against the Ontario Government’s carbon tax gas pump stickers is a good reminder to lawyers interpreting legislation that statements made in the legislature and to media can be used to interpret the government’s intent and – as was the case in this ruling – come back to haunt that government, says a lawyer who acted for the intervenor in the case.

On Thursday, Oct. 1 the Ontario Government announced it would not appeal last month’s decision which found the carbon tax gas stickers unconstitutional. In CCLA v. Attorney General of Ontario, 2020 ONSC 4838, Justice Edward Morgan relied on an array of materials, including speeches in the legislature, newspaper articles and the wording of the sticker itself, to conclude that the stickers were a partisan attack which gas station operators were being compelled to make on behalf of government, says Peter Wardle, who represented the intervenor PEN Canada.

“It's a good reminder – to the government especially, but also to lawyers, who are interpreting legislation – that statements made in the legislature by ministers are important and they can come back to haunt the government and can be used in interpreting what the government is trying to say with a particular piece of legislation,” says Wardle’s co-counsel Evan Rankin.

Wardle is partner with the commercial and business litigation and professional liability practice groups at Singleton Urquhart Reynolds Vogel LLP. Rankin is an associate in the firm’s commercial litigation practice group. PEN Canada is an international organization which advocates for freedom of expression and for persecuted journalists and writers.

In May 2019, Ontario enacted the Federal Carbon Tax Transparency Act, which mandated that anyone licensed to sell gas under the Technical Standards and Safety Act, 2000 must post blue stickers on each gas pump which show that the carbon tax adds 4.4 cents per litre to the price. The Canadian Civil Liberties Association had challenged the law on the grounds it amounted to compelled speech and violated s. 2(b) of the Charter. Superior Court Justice Edward Morgan agreed, and his decision was released Sept. 4.

Morgan said in the decision that, “with a federal election only months away and at a time when the bill that became the FCTTA was before the Ontario legislature,” Premier Doug Ford “identified for the press the central goal of the proposed legislation.”

Ford had said: “People in our province have to know how the federal government is gouging them on the worst single tax you could ever put on the backs of people, the backs of businesses.”

Morgan followed with statements made by Minister of Economic Development, Job Creation and Trade Vic Fedeli, pulled from a CBC article. Fedeli’s comments “also identified the partisan battle in which the proposed FCTTA formed an integral part,” said Morgan.

“We will be putting stickers on gas pumps that show just how much Justin Trudeau is taking out of your pocket,” said Fedeli.

Morgan also pointed to statements made on two occasions by Ontario Minister of Energy, Northern Development and Mines Greg Rickford in the Ontario legislature. On April 17, he said: “We’re fighting this job-killing, regressive carbon tax. At every opportunity we are going to let the people of Ontario know where it hurts the most, when they’re fuelling up their automobiles.” The next day, Rickford described the federal policy as a “job-killing, regressive carbon tax,” and said the sticker “is an important way of letting the people of Ontario know how much this tax scheme is going to cost them.”

The timing – the law was enacted two months before a federal election – as well as what was on the sticker itself, also reflected the legislation’s “partisan thrust,” said Morgan.

“Legislating partisanship has always been outside of what the courts consider acceptable,” says Rankin.

CCLA v. Attorney General of Ontario also served as an opportunity for Canadian courts to address the issue of compelled speech. There are only a few such cases in Canada and PEN Canada wanted to bring an international perspective on compelled speech to the court’s attention, says Rankin.

PEN’s position was that the s. 1 analysis of the Oakes test – that any limit on a Charter right must be reasonable and demonstrably justified in a free and democratic society – should be informed by international human rights principles. For example, the International Covenant on Civil and Political Rights contains similar freedom of expression rights, but only allows them to be restricted in “very carefully defined situations,” says Rankin.

“And PEN Canada argued that those narrowly defined situations in which governments are permitted to restrict freedom of expression should influence the court's view on whether the government's ‘pressing and substantial’ objective was actually pressing and substantial,” he says.

In announcing that Ontario would not appeal the matter, Rickford said in a widely reported statement: “We stand by our position that Ontarians deserve to know the true cost of the federal carbon tax. Right now, however, our sole focus is protecting the health and well-being of the people of Ontario as we continue to battle COVID-19."

The federal Liberal Government enacted the Greenhouse Gas Pollution Pricing Act — the carbon tax — in June 2018. Ontario’s FCTTA came into force August 2019. Under the law, individual gas station owners could be fined up to $500 for each day they neglect to post the stickers. For repeat offenders, fines can amount to $1,000 per day. Corporations could be fined up to $5,000 per day and $10,000 per day for subsequent offences. The Act also allows government inspectors to check that gas stations are properly displaying the stickers.