Court hearing summary motion in Charter challenge of Ontario’s gas-pump carbon-tax stickers

The Canadian Civil Liberties Association’s challenge of the Ontario Government’s law requiring gas stations post stickers critical of the federal carbon tax was heard before an Ontario Superior Court Monday.

The CCLA says it is challenging the Ontario law on the basis that it violates freedom of speech protections under s. 2(b) of the Charter, amounting to forcing private businesses to advertise government propaganda. The Ontario government says the stickers are informational and intended to enhance consumer choice and transparency.

On Monday, the court heard a motion for summary judgment, as both Ontario and the CCLA agreed the matter does not need a full trial, says Cara Zwibel, director of fundamental freedoms at the CCLA.

The federal Liberal Government enacted the Greenhouse Gas Pollution Pricing Act — the carbon tax — in June 2018. In August 2019, Ontario’s Federal Carbon Tax Transparency Act came into force and 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 the carbon tax adds 4.4 cents per litre to the price. Gas stations on Indigenous reserves are exempt.

Fines for individual gas station owners are up to $500 for each day they neglect to post the stickers. For repeat offenders, fines can amount to $1,000 per day. For corporations, the fines are 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.

“This is a case about freedom of expression. Our argument is that the Ontario government's legislation and requirements that gas retailers display these anti-carbon-tax stickers on the gas pumps is compelled political expression. Basically, the government is forcing private entities to convey the government's own political message and they see potentially significant fines if they don’t comply,” says Zwibel.

In its statement of defence, Ontario argues that the CCLA has no standing to bring the action because the organization is not a licensee under the Technical Standards and Safety Act, 2000. The province also submits that the stickers do not, in purpose or effect, limit any gas sellers right to express any message, nor force them to express political speech. The stickers are merely informative and do not require anyone to “express or adopt any position of the Government of Ontario,” said the statement of defence.

“The FCTTA furthers the purposes of freedom of expression, which include seeking and attaining  truth and participating in social and political decision-making, by promoting informed consumer choice and transparency in relation to the effect on the price of gasoline sold in Ontario.”

While the government says the stickers are to inform consumers about what comprises the price of gas, Zwibel notes that the only part of the price explained is the carbon tax.

“It doesn't convey the full information about what makes up the price of gas, but it’s specifically about what the federal carbon tax does,” she says.

Ontario also argues that, if the stickers do, in fact, infringe s. 2(b), they are a reasonable limit justified under s. 1. “Promoting informed consumer choice and transparency” about the carbon tax are “pressing and substantial objectives,” the province states.