



COURT OF APPEAL FOR ONTARIO

CITATION: Reference re Greenhouse Gas Pollution Pricing Act,
    2019 ONCA 29

DATE: 20190118

DOCKET: C65807 (M49919, M49949, M49950, M49955, M49957, M49961,
    M49963, M49965, M49966, M49968, M49970, M49971, M49972 & M49974)

MacPherson J.A. (Motion Judge)

IN THE MATTER OF A REFERENCE to the Court of
    Appeal pursuant to section 8 of the
Courts of Justice Act
, RSO 1990,
    c. C.34, by Order-in-Council 1014/2018 respecting the constitutionality of the
Greenhouse
    Gas Pollution Pricing Act
, Part 5 of the
Budget Implementation Act,
    No. 1
, SC 2018, c. 12

Gareth Morley, for the moving party Attorney General of
    British Columbia

Amir Attaran and Matt Hulse, for the moving party
    Athabasca Chipewyan First Nation

Stewart Elgie, for the moving party Canadas Ecofiscal
    Commission

Joseph Castrilli, for the moving party Canadian
    Environmental Law Association, Environmental Defence, and Sisters of Providence
    of St. Vincent de Paul

Jennifer L. King and Michael Finley, for the moving
    party Canadian Public Health Association

R. Bruce E. Hallsor, for the moving party Canadian
    Taxpayers Federation

Marc Bishai, for the moving party
    Centre québécois du droit de lenvironnement and Équiterre

Nathan Hume, for the moving party Intergenerational
    Climate Coalition

Lisa DeMarco and Jonathan McGillivray, for the moving
    party International Emissions Trading Association

Cynthia Westaway and Nathalie Chalifour, for the moving
    party United Chiefs and Councils of Mnidoo Mnising

Ryan Martin, for the moving party United Conservative
    Association

Greg Vezina, acting in person

Sharlene Telles-Langdon, Brooke Sittler, Mary Matthews
    and Ned Djordjevic, for the Attorney General of Canada

Josh Hunter and Thomas Lipton, for the Attorney General
    of Ontario

Heard: January 15, 2019

A.

Overview

[1]

By order-in-council, the Lieutenant Governor in Council referred a
    reference to this court concerning the constitutionality of the
Greenhouse
    Gas Pollution Pricing Act
, S.C. 2018, c. 12, s. 186. On August 30, 2018, I
    issued an order providing a timeline for hearing the reference and setting out the
    procedures for parties wishing to intervene in the matter. On January 15, 2019,
    I heard motions from various parties seeking leave to intervene and/or file a
    record. These reasons address those motions and other procedural matters.

B.

The Interventions

[2]

Pursuant to my order of August 30, 2018, any Attorney General could
    intervene as of right in this reference by serving notice of his or her intention
    to intervene on the Attorney General of Ontario and the Attorney General of
    Canada and filing the notice with this court. Three Attorneys General have served
    and filed notices: (1) the Attorney General of New Brunswick; (2) the Attorney
    General of British Columbia; and (3) the Attorney General of Saskatchewan. I
    grant them leave to intervene.

[3]

Beyond the Attorneys General, any party seeking leave to intervene could
    do so by serving a motion for leave to intervene on the Attorney General of
    Ontario and the Attorney General of Canada and filing it with the court.
    Thirteen parties have done so. Many of these parties have already been granted
    leave to intervene in a parallel reference challenging the constitutionality of
    the
Greenhouse Gas Pollution Pricing Act
in the Court of Appeal for
    Saskatchewan (Docket: CACV3239). In the reference in Saskatchewan, the court
    granted leave to all parties seeking to intervene, notwithstanding some
    opposition.

[4]

In this case, the Attorney General of Ontario and the Attorney General
    of Canada consent to or do not oppose the motions for leave to intervene of six
    of the thirteen parties seeking leave. These six parties are:

1)

Assembly
    of First Nations;

2)

Canadian
    Environmental Law Association, Environmental Defence, and Sisters of Providence
    of St. Vincent de Paul;

3)

Canadian
    Taxpayers Federation;

4)

David
    Suzuki Foundation;

5)

United
    Chiefs and Councils of Mnidoo Mnising; and

6)

United
    Conservative Association.

[5]

I agree that these six parties should be granted leave to intervene and
    order accordingly.

[6]

The Attorney General of Canada also consents to the motions for leave to
    intervene of six of the seven other parties seeking leave. The Attorney General
    of Ontario opposes these motions. These six parties are:

1)

Athabasca
    Chipewyan First Nation;

2)

Canadas
    Ecofiscal Commission;

3)

Canadian
    Public Health Association;

4)

Centre québécois du droit de lenvironnement and
    Équiterre;

5)

Intergenerational Climate Coalition;
and

6)

International
    Emissions Trading Association.

[7]

I grant leave to intervene to these six parties. In my view, they have
    satisfied the test for intervener status.

[8]

In determining motions for leave to intervene, the court will generally
    consider the nature of the case, the issues which arise and the likelihood of
    the applicant being able to make a useful contribution to the resolution of the
    appeal without causing injustice to the immediate parties:
Peel (Regional
    Municipality) v. Great Atlantic & Pacific Co. of Canada
(1990), 74
    O.R. (2d) 164 (in Chambers), at p. 167; see also
Bedford v. Canada
    (Attorney General)
, 2009 ONCA 669, 98 O.R. (3d) 792, at
    para. 2. In constitutional cases, the rules governing motions for leave to
    intervene are relaxed:
Peel
, at p. 167. Nevertheless,
    an applicant seeking to intervene in constitutional litigation must usually
    meet
at least one of the following criteria: (1) the applicant
has a real, substantial and identifiable interest in the subject matter
    of the proceedings; (2) the applicant has an important perspective distinct
    from the immediate parties; or (3) the applicant is a well-recognized group
    with a special expertise and a broadly identifiable membership base:
Bedford
, at para. 2; see also
P.S. v. Ontario
,
    2014 ONCA 160, 317 O.A.C. 219 (in Chambers), at para. 6.

[9]

Applying the applicable principles in this case, I grant leave to
    intervene to Athabasca Chipewyan First Nation, Canadas Ecofiscal Commission, Canadian
    Public Health Association, Centre québécois du droit de lenvironnement and
    Équiterre, Intergenerational Climate Coalition, and International Emissions
    Trading Association. This reference raises important issues about the
    constitutionality of legislation. These proposed interveners have each
    established that they have a real interest in the proceeding and will make
    useful submissions distinct from the Attorney General of Ontario and the
    Attorney General of Canada without causing them prejudice. As a result, I grant
    them leave to intervene.

[10]

I
    decline, however, to grant leave to the one remaining party seeking leave to
    intervene, Mr. Greg Vezina. Both the Attorney General of Ontario and the
    Attorney General of Canada oppose his intervention in this matter.

[11]

According
    to his affidavit evidence, Mr. Vezina is the founder and chairman of two energy
    technology companies with interests relating to clean fuel standards and the
    use of ammonia as an alternative fuel. Mr. Vezinas submissions reflect a keen
    interest in scientific and policy issues relating to greenhouse gas emissions.
    In my view, however, they do not assist the court in determining the legal
    issue of whether the
Greenhouse Gas Pollution and Pricing Act
is
    constitutional. I therefore dismiss his motion for leave to intervene.

C.

Factums

[12]

My
    order of August 30, 2018 set out the length of intervener and reply factums.
    Having heard submissions from the parties on that issue, I would vary the order
    as follows:

·

The Attorney General of New Brunswick, Attorney General of
    British Columbia, and Attorney General of Saskatchewan may each file a factum not
    to exceed 25 pages;

·

The other interveners may each file a factum not to exceed 15
    pages; and

·

The Attorney General of Ontario may file a reply factum not to
    exceed 30 pages.

D.

Oral Argument

[13]

Pursuant
    to my order of August 30, 2018, the reference will be heard from April 15 to
    April 18, 2019. I have canvassed the parties and interveners submissions and
    order that the time be divided as follows:

·

Attorney General of Ontario: 4.5 hours (including reply);

·

Attorney General of Canada: 4 hours (including reply);

·

Attorney General of New Brunswick, Attorney General of British
    Columbia, and Attorney General of Saskatchewan: 30 minutes each; and

·

Other interveners: 10 minutes each.

[14]

The
    schedule for submissions will be as follows:

·

April 15, 2019: Submissions of the Attorney General of Ontario;

·

April 16, 2019: Submissions of the Attorney General of Canada;

·

April 17, 2019: Submissions of the intervening Attorneys General
    and other interveners; and

·

April 18, 2019: Reply submissions of the Attorney General of
    Canada and the Attorney General of Ontario.

E.

Records

[15]

The
    Attorney General of British Columbia, Athabasca Chipewyan First Nation, Canadas
    Ecofiscal Commission, Canadian Public Health Association, Intergenerational
    Climate Coalition, International Emissions Trading Association, and United
    Chiefs and Councils of Mnidoo Mnising further seek leave to file a record.
[1]
The Attorney General of Canada consents to these seven parties being granted
    leave to file a record, while the Attorney General of Ontario opposes. In the
    parallel reference in Saskatchewan, the Court of Appeal for Saskatchewan
    granted leave to the interveners seeking to supplement the record.

[16]

I
    have reviewed the proposed records of these seven interveners in this case and
    grant them leave to file their records. I am cognizant of the courts common
    practice to require interveners in an appeal to accept the existing record and
    not to seek to supplement it: see
R. v. Kokopenace
, 2011 ONCA 498 (in Chambers), at para. 4;
Jones v. Tsige
(2011), 106 O.R. (3d) 721 (C.A., in Chambers), at para. 26. In my view,
    however, the usual prohibition on supplementing the record in an appeal should
    be relaxed when this court is sitting as a court of first instance in a
    constitutional reference.

[17]

Constitutional
    challenges should not be determined in a factual vacuum:
MacKay v. Manitoba
,
    [1989] 2 S.C.R. 357, at p. 361;
Danson v. Ontario (Attorney General)
,
    [1990] 2 S.C.R. 1086, at p. 1099. In a constitutional reference, an intervener
    may be permitted to file material subject to reserve by the court as to its
    relevancy and weight:
Re: Anti-Inflation Act
, [1976] 2 S.C.R. 373, at
    p. 387; see also
Reference re Education Act of Ontario and Minority
    Language Education Rights
(1984), 47 O.R. (2d) 1 (C.A.), at p. 10. As
    Dickson J. observed in
Re Residential Tenancies Act
, [1981] 1 S.C.R.
    714, at p. 723:

A constitutional reference is not a barren exercise in
    statutory interpretation. What is involved is an attempt to determine and give
    effect to the broad objectives and purpose of the Constitution, viewed as a
    living tree, in the expressive words of Lord Sankey in
Edwards and Others
    v. Attorney-General for Canada and Others
. Material relevant to the issues
    before the court, and not inherently unreliable or offending against public
    policy should be admissible, subject to the proviso that such extrinsic
    materials are not available for the purpose of aiding in statutory construction.
    [Footnote and citations omitted.]

[18]

In
    this case, I am satisfied that the proposed records of these seven interveners
    may assist the court in determining the constitutional validity of the
Greenhouse
    Gas Pollution Pricing Act
and should therefore be admitted.

F.

Conclusion

[19]

For
    the reasons above, with the exception of the motion of Mr. Vezina, the motions
    to intervene and file records are granted.          J.C. MacPherson J.A.





[1]

Mr. Vezina also sought leave to file a record. Given my
    decision not to grant him intervener status, this motion is now moot.


