Ecojustice Case – Climate change Case Status: Victory

Challenging Ontario’s gutting of cap and trade program

Greenpeace CanadaClient
Amir AttaranLawyer
Ian MironLawyer
Doug Ford addresses an audience in Sudbury, Ontario
Doug Ford via CC-BY-SA 2.0

During the 2018 provincial election, future-premier Doug Ford campaigned on promises to roll back laws to protect nature, the climate, and Ontarians’ right to clean air and water — including the province’s cap and trade program.

The program, established by the Climate Change Mitigation and Low-carbon Economy Act of 2016, aimed to lower greenhouse gas emissions by putting a price on carbon pollution. Under the Act, money raised from Ontario’s cap and trade program was deposited into an account that funded green projects and initiatives to reduce emissions.

When Ford came to power in 2018, his first order of business was filing Ontario Regulation 386/18, which essentially gutted the operational elements of Ontario’s cap and trade program in one fell swoop.

The Minister of Environment, Conservation and Parks chose not to consult the public as required under Ontario’s Environmental Bill of Rights, claiming instead that the 2018 Ontario election was a process that was “substantially equivalent” to the 30-day consultation process required by law.

Shortly afterwards, the Minister introduced Bill 4, the Cap and Trade Cancellation Act, 2018. The bill would repeal the Climate Change Mitigation and Low-carbon Economy Act, including Ontario’s legislated targets for reducing greenhouse gas pollution. Again, the government initially failed to consult the public.

In response, Ecojustice mobilized quickly to take Premier Ford to court for flouting Ontario’s public participation rules.

This led to an early victory. Hours after Ecojustice filed its lawsuit on behalf of Greenpeace Canada, the government posted a notice for a 30-day public consultation period on Bill 4.

While Ecojustice welcomed this development, there were still important issues left to settle in court.

After surviving a government attempt to quash their case, Ecojustice lawyers appeared in the Ontario Divisional Court on April 1 and 2, 2019, to argue that the Ford government acted illegally when it scrapped cap and trade without public consultation.

In October 2019, a two-judge majority of the court found that Ontario did fail to meet its legal obligations when it chose not to consult under the Environmental Bill of Rights before making Regulation 386/18. However, a different two-judge majority of the court decided not to grant a formal declaration to that effect. That’s because, after we sued, the Ford government retroactively made a law that protected it from being held liable for this conduct and because the offending regulation was no longer on the books.

Why did Ecojustice get involved?

Ecojustice took this case on because we believed the Ford government had to answer in court for its decision to gut Ontario’s cap and trade program with no public consultation.

Under Ontario’s Environmental Bill of Rights, the government must provide for public notice and comment on proposed regulations and legislation that could have “a significant effect on the environment” at least 30 days before implementation. This gives Ontario residents, community groups, businesses and other stakeholders the chance to participate in environmentally significant decision-making in Ontario.

We believe that people living in Ontario — and across Canada — have the right to weigh in on consequential environmental decisions. When Ford blatantly disregarded this right, Ecojustice stepped in.

What does this victory mean?

Despite the lack of a formal declaration, this win upholds Ontarians’ public consultation rights and makes it clear that an electoral process cannot supplant public consultation. Filing this case also led to an early victory, when the Ford government decided to launch public consultation on Bill 4.

While the court’s decision will not bring cap and trade back in Ontario, the clear guidance from two judges of the Divisional Court sends a strong message to Premier Ford and future governments who may be tempted to pull similar stunts: Winning an election does not give you carte blanche to trample Ontarians’ environmental rights.

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Thanks to the support of people like you, Ecojustice goes to court to protect what we value most — the air, land and water that sustains all life. Make your gift today and support bold litigation for a brighter environmental future.

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