Law Times

Page 6 December 10, 2018 • Law Times www.lawtimesnews.com More politics than law at play BY IAN HARVEY A nd so it begins. By all accounts, the reference case brought by the Ontario government to the Court of Appeal over the constitutionality of the Greenhouse Gas Pollution Pricing Act is doomed. How- ever, there's a lot more politics than law at play in this battle. For one, in the run up to the October federal general election, Prime Minister Justin Trudeau will have to run on the carbon tax. Thus, his sunny days will be clouded not only by federal Conservative leader Andrew Scheer but by Ontario, Sas- katchewan, New Brunswick and the heir-apparent to the premiership of Al- berta, Jason Kenney, leader of the United Conservative Party. As part of that battle, Ontario argues in its factum that while the federal gov- ernment does have " jurisdiction over certain greenhouse gas sources under the powers enumerated in section 91 of the Constitution Act, 1867, it does not have general jurisdiction over the vast range of provincially-regulated activi- ties it purports to regulate through the Act." Further, it says putting a price on greenhouse gas emissions is not authorized by the federal mandate of peace, order and good gov- ernment power and, in any event, the act imposes un- constitutional taxes con- trary to s. 53 of the Constitu- tion Act, 1867. Besides, it argues, the province has reduced its greenhouse gases by 22 per cent since 2005 and points to the just announced Preserving and Protecting our Environment for Future Generations A Made-in-Ontario Envi- ronment Plan. In dismissing the federal attempt to impose a carbon tax, Ontario argues it would "seriously disrupt the balance of powers set out in the Constitution." What passes for compliance may also come under scrutiny. Newfoundland's plan gives the off- shore oil industry a pass, Nova Scotia's regime cuts emissions a mere one per cent and PEI imposed a mere four- cents-a-litre gas tax. It's a curious approach, says Andrew Roman, formerly a partner at Miller Thomson LLP, who ap- peared at all levels of court in every province of Canada and in the Supreme Court of Can- ada during his 40-year career. Roman is now retired. "Climate change is not a legal question, it is a political and economic and environ- mental question," he says. "Courts generally refuse to answer these questions, and certainly not without a de- tailed trial on the facts." He, like many other critics, says the case is f lawed and doomed from the get- go: "In short, [the] legal answer is that if the feds can impose a tax, they can also decide who to exempt from the tax, as they do with people earning less than the minimum threshold for the lowest income tax bracket." Ontario is also crying foul over the Liberal's insistence on calling it a "price on pollution" and avoiding the "T" word, saying it walks, talks and sounds like a tax, ergo it is a tax, a point Roman concedes. "It is misleading, pejorative rhetoric by the feds to call CO2 a pollutant and a CO2 tax a carbon tax," says Roman. "CO2 is not lead or E. coli or mercury, it is a gas we exhale with every breath. Are we all guilty of exhaling pollution?" Still, Roman says he has no expecta- tion the Court of Appeal will side with Ontario Premier Doug Ford or that sim- ilar arguments will prevail in Saskatch- ewan. An unlikely split would mean a trip to the Supreme Court of Canada, he notes, but if both decisions side with the feds, the odds are more stacked against an appeal, which also risks setting the federal position into stone. For Ford, however, it's win-win play. Cast in the role of tax fighter, he merely embellishes his brand while keeping the carbon tax firmly in the frame in the countdown to the October 2019 federal election. As such, eliminating Trudeau and repealing the tax would be the ultimate victory in a much longer end game. LT uIan Harvey has been a journalist for more than 41 years, writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . Anita Balakrishnan Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . Laura Crawford Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford Quite a year T hanks to the tech-heavy age in which we live, events seem to transpire at super-speed. That's why, when we examine issues that have transpired in 2018, some can feel like they happened eons ago. Looking at the legal battle between Toronto and the Ontario gov- ernment over the size of city council, for example, it felt like there was momentous movement on the issue over the summer and fall, before coming to a dramatic conclusion in the lead-up to the municipal elec- tion in Toronto on Oct. 22. The election of Doug Ford as premier of Ontario also led to chang- es to provincial labour laws. One of the most massive legal shifts of the year also arrived this fall with the Canada-wide legalization of recreational marijuana. "This whole change in the law is really a game changer for all kinds of expectations and ways that society is going to look at and treat peo- ple and corporations and the government," says Marvin Huberman, a Toronto mediator and lawyer. There's also the way legal education is being handled — such as the recent refusal by Ontario to approve funding for a proposed law school at Ryerson University. There are ongoing issues that have plagued Lakehead University's Bora Laskin Faculty of Law, including a lawsuit filed by its former dean, Angelique EagleWoman, for more than $2.6 million for alleged constructive dismissal and employment discrimination. Other top newsmakers focused on changes at the Law Society of Ontario, concerning the good character requirement and the way mental health issues are recognized in the disci- pline process of lawyers. One of Law Times' columnists, Doron Gold, says that when it comes to progress by regulators regarding mental health, "the direction is chang- ing, but very, very slowly." When you're standing close to change, it's difficult to discern the minuscule adjustments from the all- encompassing transformations. It's fair to say that of the many top stories this year, many will leave an in- delible mark on the legal framework of the province and country, thereby affecting all lawyers. LT Queen's Park Ian Harvey

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