In 2019, the Ford Government announced it would require gas station operators to post stickers about the impact of the federal government’s fuel charge on the price of gasoline. The Ontario Government’s response to the Canadian Civil Liberties Association’s (CCLA) challenge to the legislation not only defended on the merits, but also argued the CCLA did not have standing to bring its claim. The Ontario Superior Court of Justice rejected both positions in The Corporation of the Canadian Civil Liberties Association v. The Attorney General of Ontario (CCLA v. AG Ont.). Here I focus on Justice Ed Morgan’s determination on standing; in my next post I consider his conclusion that the mandating legislation is unconstitutional.
The Federal Carbon Tax Transparency Act, 2019 (FCTTA), first announced in the provincial April 2019 budget, and passed by the Ontario Legislative Assembly on May 29, 2019, provides that Ontario gas station operators are required to post on each gas pump a sticker relating to the price of gasoline (FCTTA, s.2(1). The Act also provides for inspections to ensure compliance (FCTTA, s.3(1)). It further provides for a maximum fine of $500 a day for every day the sticker is not affixed to a gas pump and a fine of $1,000 a day for subsequent offences. The maximum fines for corporations are $5,000 and $10,000. (FCTTA, s.4) The sticker is to refer to the charge under section 17(1) of the federal Greenhouse Gas Pollution Pricing Act (GGPPA), which requires registered distributors of fuel to a “listed province” (of which Ontario is one) to pay “a charge” to the Crown in an amount calculated by a formula under section 40 of the GGPRA (FCTTA, s.5). It is this amount that is meant to be addressed by the notice (in the form of a sticker) under the FCTTA, which reads “The Federal Carbon Tax will cost you” a specified amount in 2019 and a higher amount in 2022. Regulation 275/19 under the FCTTA prescribed precisely where to post the notice to ensure that it would be seen by a motorist filling up their vehicle at the pump. Gas station operators were not actually subject to the mandatory posting until August 30, 2019.
The Canadian Civil Liberties Association filed a statement of claim in the Superior Court of Justice on September 3, 2019, challenging the constitutionality of sections 2, 4 and 5 of the FCTTA. The parties agreed the matter would proceed as a motion for summary judgement.
In CCLA v. AG Ont., Morgan J. concluded that the CCLA met the requirements for public interest standing, enabling it to challenge sections 2, 4 and 5 of the FCCTA and Regulation 275/20 under the FCCTA.
This might be said to be a perfect public interest standing case, except for one issue. While there was a legitimate concern with the constitutionality of the legislation and no person directly affected was prepared to challenge it, the CCLA’s interest and expertise might be said to be in the Canadian Charter of Rights and Freedoms, not in the selling of gasoline or the fuel charge. The question raised by the case, though, is whether the latter expertise is fundamental or necessary to whether the requirement for gas station operators to post the sticker contravenes freedom of expression under the Charter. (See my previous post on whether the CCLA had standing to challenge the legislation: September 10, 2019.)
The CCLA, in its Statement of Claim (para. 18), referred to its standing only implicitly and incompletely by explaining it had been unable to find a gas station operator willing to challenge the legislation. However, it addressed the issue explicitly in its Factum of May 14, 2020 at paras. 74 to 87 and Reply Factum.
Ontario had argued in its Statement of Defence that the CCLA lacked standing because it did not operate a gas station and thus was not directly affected by sections 2, 4 and 5 of the FCTTA. In any event, the CCLA had not pleaded it should have public interest standing and, had it done so, it would have been inappropriate to grant it (Ontario Government’s Statement of Defence, paras. 15 and 16).
The Ontario Government elaborated on its position in its Factum. The CCLA’s lack of connection with gas station operators or expertise or interest in the selling of retail gasoline played a major part in its argument. It compared the CCLA to other public interest organizations that had been granted standing that had represented those who had been disadvantaged by the laws. Not only did the CCLA have no such relationship with gas station operators, the Canadian Independent Petroleum Marketers Association [CIPMA], which does represent gasoline retailers, had indicated it supported the legislation in its submission to the government (Ontario Government’s Factum, paras. 27 and 28). (However, at para. 34 of his decision, Morgan J. noted that the CIPMA had expressed concern that the legislation was detrimental to small businesses.) The government maintained that “[t]he Plaintiff’s experience as a Charter litigant in other matters cannot constitute a standing invitation to bring its own proceeding challenging any law that it believes is contrary to the Charter.” (Ontario Government’s Factum, para. 29) The government stated further,
Concern for the welfare of others or disdain for government action are not sufficient bases to grant a plaintiff standing. The Supreme Court has cautioned that “Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter” and that public interest standing is not “licence to grant standing to whoever decides to set themselves up as the representative of the poor or marginalized.” (Ontario Government’s Factum, para. 36, citations omitted)
The evolution of public interest standing in constitutional cases has tended to favour ensuring that the constitutionality of legislation be determined rather than left open because no one directly affected is willing or able to challenge it. As Cory J., for the Supreme Court of Canada in Canadian Council of Churches, described the test for public interest standing, it should be based on “a generous and liberal approach”, one which, while leaving the discretion to the court, recognizes that “[t]he whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge”. The court’s discretion to grant public interest standing “entrench[es] the fundamental right of the public to government in accordance with the law”.
Considering the three elements of the test for public interest standing (whether the case raises a serious justiciable issue, whether the CCLA has a genuine interest and whether their challenge is a reasonable and effective means to bringing the case to court), Morgan J. held that the CCLA did have standing to bring the challenge to the constitutionality of sections 2, 4 and 5 of the FCTTA and Regulation 275/20.
The first criterion was easily met, since according to Morgan J., the government “put up little argument that the issue at hand is not a serious and justiciable one” (CCLA v. AG Ont. at para. 32). Furthermore, he said, many organizations have expressed concern about the legislation (although one might wonder whether this matters).
Justice Morgan spent some time explaining that the CCLA had a genuine interest in the issue.
In doing so, he emphasized the CCLA’s activities and reputation as a civil liberties organization. Wearing that cloak, and not as an expert on the operation of gasoline stations or the rules governing the sale of gasoline, the CCLA had become involved in challenging the legislation early after it had been announced in the government’s April 2019 budget, by writing to the government, its executive director’s appearance before the relevant legislative committee and the CCLA’s submission to the government commenting on the legislation. Its position from the beginning was that requiring gas station operators to post the sticker was compelled speech and that the speech at issue reflected the government’s political stand on the federal government’s fuel charge.
In short, the CCLA wasted no time in establishing its interest in the constitutionality of the sticker requirement. Thus, Morgan J. stated, “the CCLA conformed with its history as a prominent civil liberties organization in the province”, a role “noted by the courts on numerous occasions”. (CCLA v. AG Ont. at para. 26; a brief review of relevant cases is found at paras. 26 and 27). He explained,
Public interest litigants can gain standing where they have demonstrated a genuine interest in the issues by publishing on the topic, participating in committee hearings relating to the legislation, and establishing a history of expertise in the area….The CCLA has engaged in all of those activities and more in relation to the issue before the court. Its interest in the case reflects the core of the civil liberties and constitutional law mandate which it exists to defend, and as an organization it has the capacity to take on this litigation. (CCLA v. AG Ont. at para. 37)
Justice Morgan relied on the Ontario Court of Appeal’s decision in Alford in identifying the kinds of activities that show a genuine interest in the issue. Alford involved a challenge by a university professor to the National Security and Intelligence Committee of Parliamentarians Act; he argued it abridged parliamentary privilege. The Court of Appeal concluded he met the requirements of public interest standing because the matter was significant, he had a genuine interest in the issue and his challenge was “a reasonable and effective way to bring the matter before the court”. Furthermore, “[h]e is highly competent and able to represent the constitutional issues at stake, and clearly motivated to do so. There can be no concern that he is a busybody or that his interest is purely academic.” (Alford, para. 4)
In its Factum, the Ontario Government sought to distinguish Alford from the circumstances at issue:
The Plaintiff relies on Alford, but that case was not a Charter case and instead concerned legislative competence over parliamentary privilege. The Court of Appeal held that the issue raised in Alford was a “pure question of law” and that a “factual context can have no appropriate bearing on this constitutional challenge.” But the same is not true in Charter cases, as the Supreme Court and this Court have held. (Ontario’s Factum, para. 35, citations omitted)
The Court in Alford did not make the distinction posited by the Ontario Government in its Factum, relying on the Supreme Court’s decision in Downtown Eastside Sex Workers United Against Violence Society, which involved a Charter challenge. Justice Morgan did not address this point directly, but by relying on Alford, he implicitly rejected Ontario’s position that the nature of the case made a difference, particularly having already noted that the necessary facts about the case were available to the court. (I discussed Alford and the history of public interest standing in August 27, 2019.)
Obviously, operators of gasoline stations who were required to post the stickers might have something to say about whether they felt they were being forced to toe the government’s line and also something about selling gasoline. The Ontario Government maintained that the question was whether the CCLA had a genuine interest in the pricing of gasoline and whether it had an expertise in the rules governing the sale of gasoline, an approach stressing adjudicative facts. Justice Morgan, however, was not concerned about that; he focused on the CCLA’s interest and expertise in whether the legislation was constitutional, a matter of law, for which legislative facts were primary.
Although Charter cases should not proceed in “a factual vacuum”, the need for a plaintiff who is directly affected by government legislation or action is diminished when the only facts required are legislative facts “those that establish the purpose and background of legislation, including its social, economic and cultural context”, cited by Alan N. Young) or when there is adequate access to adjudicative facts through some other means. Legislative facts cannot be controversial and, indeed, can be advanced through judicial notice. In this case, government statements appearing in the “mainstream press” or in the legislature identify the legislative purpose (CCLA v. AG Ont. at para. 30).
Finally, Morgan J., without much discussion, finds that granting the CCLA public interest standing “is a reasonable way to bring the issues to court” (and given his earlier comments on the organization’s experience in addressing constitutional issues before the courts, an effective way to do so). He had earlier in the decision indicated his satisfaction with the CCLA’s efforts to find a directly affected gas station operator to bring a challenge, noting that “it is the CCLA’s very point about the impugned legislation and regulation — i.e. that it is intrinsically wed to partisan politics — that has prevented it from convincing any retailer to join it or to take this challenge in its own right as named plaintiff” (CCLA v. AG Ont. at para. 28).
Justice Morgan’s comment about “the CCLA’s very point” makes a suitable segue to the substantive issue in the case: whether the FCTTA constitutes unjustified compelled speech and is therefore unconstitutional. I address this next week.