Court of Appeal Materials on Greenhouse Gas Challenge

On Sept. 14, 2018, the Government of Ontario announced a challenge to the federal government’s Greenhouse Gas Pollution Pricing Act, which will have significant economic and environmental implications, irrespective of how it is decided. A statement of particulars was required by this date, and the province specified that the Act creates an unconstitutional tax because it is ultra vires of the federal government, and contravenes s. 53 of the Constitution Act, 1867. The full arguments are available here.

Given the broad public interest, the Court of Appeal ordered that any province or territory may intervene as a right. On Jan. 18, 2019, the Court of Appeal released its decision on interveners, which included many other parties as well.

The recent decision is not itself very notable. What is of interest is that the Ontario Court of Appeal has made all of the court documents related to this matter available online. This is the first time the court has done so to my knowledge, following the long-standing practice of the Supreme Court of Canada. The availability of these materials have assisted students, scholars and observers greatly in understanding the decisions of the court, even though they cannot be read into the decision itself, in particular in situations where there is a dissent.

It may be that it is only because of the high profile and public interest nature of this matter that these materials have been made available in this way, but eventually this is an approach that the courts could ideally utilize more broadly.

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