An Election Is Not Equivalent to Public Participation

Ontario’s 2018 election for the 42nd Parliament was something remarkable. It denoted the worst result for any incumbent government party in the province’s history.

The governing party secured this success despite an unexpected leadership race triggered only months before the June election. In part, voters’ motivation appeared to be informed by a need for change.

This overwhelming success by the government has been repeated cited as a “mandate,” to effectively enact almost any policy priority identified by them, even if done so following their election. With a majority government, there has already been widespread legal reforms, though some have been slowed by calls for caution and restraint by the public and experts.

The Divisional Court recently released a decision in Greenpeace Canada v. Minister of the Environment (Ontario), which supports another proposition of constraint, that in some regulatory circumstances the outcomes of a general election cannot substitute a statutory obligation to engage in public participation.

The statute in question was the Environmental Bill of Rights, 1993 (“EBR“), which states in the preamble certain values related to a natural and healthy environment, and the protection, conservation and restoration of that environment for present and future generations.

The court cited Canadian Environmental Law (Lucas, Cotton) at § 11.121 to summarize the EBR,

The EBR grants the public a right to notice and an opportunity to comment on any proposed policy, legislation, regulation or instrument which could, if implemented, have a significant effect on the environment. An important aspect in this regard is the requirement imposed on each ministry subject to the EBR to prepare a statement of environmental values (“SEV”) to explain how the purposes of the EBR are to be applied by that ministry and integrated with other considerations, including social, economic and scientific considerations. The SEV can be amended by the Minister, with the requisite notice and public participation requirements applying to the amendment. Once the SEV is finalized, the minister is required to take every reasonable step to ensure that it is considered whenever decisions that might significantly affect the environment are made in the relevant ministry.

The content of the statute is largely procedural, with Part II of the Act laying out public participation in government decision-making, described as follows,

Purpose of Part II

3 (1) This Part sets out minimum levels of public participation that must be met before the Government of Ontario makes decisions on certain kinds of environmentally significant proposals for policies, Acts, regulations and instruments.

Proposals for policies and Acts

15 (1) If a minister considers that a proposal under consideration in his or her ministry for a policy or Act could, if implemented, have a significant effect on the environment, and the minister considers that the public should have an opportunity to comment on the proposal before implementation, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented.

Proposals for regulations

16 (1) If a minister considers that a proposal under consideration in his or her ministry for a regulation under a prescribed Act could, if implemented, have a significant effect on the environment, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented.

[emphasis added]

A detailed scheme for the classification of instruments under consideration is described under s. 20, with further notice requirements noted in s. 22.

The Act also has an exception clause for the notice requirements, as follows,

Exception: other processes

30 (1) Sections 1516 and 22 do not apply where, in the minister’s opinion, the environmentally significant aspects of a proposal for a policy, Act, regulation or instrument,

(a) have already been considered in a process of public participation, under this Act, under another Act or otherwise, that was substantially equivalent to the process required in relation to the proposal under this Act; or

(b) are required to be considered in a process of public participation under another Act that is substantially equivalent to the process required in relation to the proposal under this Act.

The case involved another statute, the Climate Change Mitigation and Low-Carbon Economy Act, which introduced cap and trade in 2016 order to combat climate change. It included mandatory greenhouse gas emissions reduction targets, which has become a significantly political sore spot for the new government.

Consequently, the new government immediately introduced a new regulation the very first day they were sworn in, which cancelled the cap and trade program. This regulation appears to be an immediate stop gap that the government used until they could pass a new statute under Bill 4, which cancelled all cap and trade instruments that were never distributed, or that were not otherwise retired.

The Ministry of the Environment, Conservation and Parks posted a notice on the Environmental Registry on July 6, 2018, a week after the cancelling regulation, which stated,

The Ministry has used EBR section 30(1) of the EBR to post notice of this Exception as the environmentally significant aspects of the proposal have already been considered in a process of public participation under the EBR or any other Act that was substantially equivalent to the process required under the EBR.

The ministry is posting this notice pursuant to section 30(2) of the Environmental Bill of Rights (EBR) which requires notice of the use of the exception in section 30(1).

A notice of proposal for the regulation that repeals the Cap and Trade Program regulation (O.Reg. 144/16) and prohibits trading of allowances and credits was not posted on the Environmental Registry pursuant to the exception in section 30 of the EBR.

This is because the Minister was of the opinion that the recent Ontario election was a process of public participation that was substantially equivalent to the process required under the EBR and that the environmentally significant aspects of the regulation were considered during that process because the government made a clear election platform commitment to end the cap and trade program.

[emphasis added]

The final vote for Bill 4 was delayed by the application in this case, where Greenpeace alleged that the province failed to engage in public consultations over the issue. The government then immediately launched a public consultation over the new statute, which ran from Sept. 11-Oct. 11, 2018, even while claiming that public consultation was not necessary.

The Divisional Court understandably provided a three-way split decision, given this complicated factual scenario, including whether the entire issue was moot, which was relevant given a previous decision by Associate Chief Justice Marrocco, ruling that the issue was not moot because the original provisions in the EBR had not themselves been repealed.

Justice Corbett concluded that the Minister did not follow the public participation process in the EBR before introducing the cancelling regulation,

[37] In short, the court accords a high standard of deference to an exercise of ministerial discretion. But even on this high standard of deference, as explained below, the Minister’s decision cannot stand: it is not supported by the evidence and it was reached without considering the appropriate factors. This happened in the opening days of a new government: it may be that the attempt to justify unlawful conduct was borne of inexperience and a desire to move swiftly to implement new policy, rather than overt disrespect for the Rule of Law. Mistakes will be made; governing is different from electioneering. There is a world of difference in finding that an inexperienced Minister and government made mistakes on their first day in office, and in finding that they deliberately set out to flout the law. Both in view of the circumstances in which this application arises, and the deference due to a Minister of the Crown by the court, I would not make a finding of bad faith.

[38] However, to be clear, I find that the Minister did not put his mind to the requirements of the EBR before the Cancelling Regulation was enacted. Invoking the exemption in s.30(1) of the EBR was done after the decision had been made to enact the Cancelling Regulation, to try to save it, in the face of clear failure to meet the requirements of the EBR. And a general election is in no way “substantially equivalent” to the process of public participation prescribed in the EBR.

[42] Ontario’s approach to the privative clause was appropriately circumspect. A close look at that clause could lead to the conclusion that the government was deliberately trying to insulate itself from review for illegality, bad faith, or failure to comply with valid, subsisting legislation. This, in turn, could buttress arguments that the clear failure of the government was followed by actions, not acknowledging the error and fixing it, but justifying the error and refusing to permit judicial review of it. Self-granted impunity cannot trump the Rule of Law, as I stated at the outset of this decision, and Ontario’s tactical decision before us not to make the argument to the contrary was consistent with emphasizing the high standard of deference to be accorded to the minister, within the bounds of a democratic system characterized by the Rule of Law. I fear that my colleague’s reliance on s.10, though couched with some qualifying language, comes close to finding that self-granted impunity can, indeed, put a government outside the constraints of the Rule of Law. I would reject that argument in the strongest possible terms.

[63] I understand the political logic of the government’s actions. It is this. “We ran on a platform that we would repeal cap and trade. We won. We are going to fulfil our promise. It doesn’t matter what the public might say in a process under the EBR: we said we would do this, and we are going to do this. Therefore, we are not going to conduct the public participation process required by the EBR.” This is not defensible as a matter of law.[29] In a democracy characterized by the Rule of Law, the government cannot ignore the EBR on the basis that it has the legal authority to govern: its authority to govern is circumscribed by the law.

However, he refused to provide an order of injunctive relief, given the high standard of deference afforded to the government, and the lack of bad faith. Instead, he quoted from Hanna v. Ontario,

[31] It is not the court’s function to question the wisdom of the minister’s decision, or even whether it was reasonable. If the minister followed the process mandated by s. 11 of the EBR, his decision is unassailable on a judicial review application. If he did not comply with the mandated process, the court would have to decide if the failure to do so means he acted without lawful authority.

Justice Corbett also emphasized the extent to which public consultation must occur, which includes proper consideration of comments received from the public. A general election could not provide a precise way that a government intended to repeal cap and trade, or what they may plan to put in its place.

This is a sound principle, because otherwise political promises during an election period by a government not in power could be found binding, even when a new government finds these promises to be impractical, unfeasible, or even impossible.

Justice Corbett also made reference to the decision in Toronto (City) v. Ontario (Attorney General), where the province recently reduced the size of city council, distinguishing it on the basis of a lack of a statutory authority to consult. However, principles of consultation are in fact found in ss. 1(2),(3) of the City of Toronto Act, though this argument was only alluded to in writing at the Court of Appeal.

What distinguishes the city council from the EBR is that this statute is more permissive in the duty to consult, and lacks specific procedures for consultation. In other words, the government’s power was not as strictly circumscribed by law as with the EBR.

The decision by Justice Myers characterized the proceedings as an academic determination given the passage of Bill 4, and the lack of any practical effect. The new Act provided an indemnity provision which included Crown immunity for the making or revocation of statutes related to cap and trade,

[102] The Legislature has spoken and its will is the law. The rule of law, to the extent that it is relevant, requires the court to apply constitutionally valid laws.

Justice Myers characterized the repeal of cap and trade as a policy issue with budgetary consequences, which courts should decline to interfere with,

[115] Despite counsel’s argument criticizing the way the government behaved, I would not comment on matters that have no legal effect especially where doing so would require me to ignore a statute that deals directly with this application. In my view, the rule of law requires the court to decide the cases that come before it in accordance with the law. This includes enforcing and respecting the constitutionally valid statute that dismissed this application. The rule of law also includes applying the law that denies declaratory relief when it would have no legal effect.

In other words, this was not a fight that he would have the court delve into.

Finally, although Justice Mew agreed with much of the reasoning of Justice Myers, he still saw value in the court reviewing compliance with EBR. This analysis may assist and inform executive conduct in the future.

In this context, Justice Mew concluded that the government failed to comply with its legal obligations,

[85] …The EBR provides for a comprehensive process that goes well beyond the blandishments of the campaign trail.

[86] It may be that had the government done what the EBR required it to, it would have made no difference. But it would be inappropriate to presume that any government would simply ignore the product of any consultation, no matter how firm its mindset going in to the process.

As one of this government’s first actions in power, it has also been one that has been mired with controversy from the outset. An estimated $5 million will be paid by the government in payouts for companies meeting criteria for reimbursement, and Ontario’s Financial Accountability Officer estimates that the loss of revenue from cap and trade will exceed any savings sought by approximately $3 billion.

The biggest cost though could be reputational, as a new government struggles to gain credibility in its actions finds some constraints within legal limitations while exerting executive power. This decision is not only a reminder of the limitations of what can be inferred from an electoral mandate, but also that the fulfillment of electoral promises still come secondary to the need for compliance with procedural protections and true public consultation.

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