Law Times

February 25, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 25, 2019 3 BY SHANNON K ARI For Law Times THE fact that greenhouse gases are caused by a wide range of hu- man activities is why the federal government's so-called "carbon tax" legislation is over-reaching and unconstitutional, the Ontar- io government states in legal sub- missions filed at the Court of Ap- peal. "Greenhouse gas emissions are not a single, distinct, and in- divisible matter which Parliament can regulate under its jurisdiction over matters of a national concern without fundamentally disturb- ing the balance of federalism," the province says in written submis- sions for the upcoming reference case to be heard by the court. "Transferring jurisdiction over greenhouse gases to Parliament would give the federal govern- ment broad jurisdiction not just to impose a price on greenhouse gas emissions but also to regulate a wide range of matters of tradi- tionally provincial concern," the province adds. A special five-judge panel of the Court of Appeal is scheduled to hear the challenge to the federal Greenhouse Gas Pollution Pric- ing Act during a four-day hearing in mid-April. The reference case follows a similar challenge initi- ated by the Saskatchewan govern- ment that was heard earlier this month by its Court of Appeal, which has reserved its decision. The Ontario government was an intervener in the hearing in Saskatchewan. Just as in that case, the Ontario Court of Ap- peal has granted intervener sta- tus to a large number of parties as well as the British Columbia, Sas- katchewan and New Brunswick governments. A significant por- tion of the arguments before the court in Saskatchewan focused on the "peace order and good government" power of the fed- eral government and the scope of the "national concern" doctrine. Constitutional law precedents dating back decades and even as far as the late 19 th century were cited by both sides. While this is also likely to be the focus of arguments in Ontario, a lawyer acting for a First Nations intervener says there are other important issues for the court to consider beyond a straight divi- sion of powers analysis. "There are more than two governments that must be con- sidered. There are also First Na- tions governments," says Cyn- thia Westaway, who acts for the United Chiefs and Councils of Mnidoo Mnising. "You can't ap- proach the division of powers as if this is 1867," adds Westaway, who heads the Westaway Law Group in Ottawa. The effects of climate change also impact constitutionally pro- tected Aboriginal rights, she says. "First Nations are here to speak for the environment. They will be acutely affected," says Westaway. First Nations and environ- mental organizations have been critical of the decision by the government of Premier Doug Ford to repeal the former cap- and-trade regime in place in Ontario. Potential new rules were released earlier this month and are now in the middle of a 45-day consultation period. Three days after the Ontario government made this announce- ment, Ford tweeted, "United we roll! Stop the carbon tax and let's get those pipelines built," while posing in front of large trucks at an automobile show. "The premier has shown a clear preference for industry over environmental protection," says Westaway. "The tough thing is that you have a prov- ince that has ripped something up and says we'll do something later. One province should not be able to decide when to do it. This is not just a national issue, it is an international issue." The federal government, in its written arguments in the Sas- katchewan hearing, outlined the national concern doctrine as first stated by the Judicial Committee of the Privy Council in its 1896 decision in the Local Prohibition case. The scope of the doctrine in a case involving regulation of marine pollution was clarified by the Supreme Court in 1988 in its Crown Zellerbach ruling. In considering whether there is the necessary degree of single- ness, distinctiveness and indivis- ibility to be a matter of national concern, "it is relevant to consider what would be the effect on extra- provincial interests of a provincial failure to deal effectively with the control or regulation of the in- tra-provincial aspects of the mat- ter," wrote Justice Gerald Le Dain for the majority in that case. The Canadian Environmental Law Association, which was an intervener in Saskatchewan and is one in the Ontario reference as well, is arguing that the federal government has the authority to regulate greenhouse gas emis- sions through its trade and com- merce or criminal law powers. Joseph Castrilli, counsel at CELA, who will be appearing for the organization at the On- tario Court of Appeal, says up- holding the federal legislation under these powers would not prevent provinces from enacting regulations as well under its con- stitutional jurisdiction. "You can have two regimes, provincial and federal, that deal with carbon pricing. Only to the extent of a conf lict would the pro- vincial law not apply," he says. LT Cynthia Westaway says the effects of climate change also impact constitutionally protected aboriginal rights. NEWS 'Preference for industry' Province says carbon tax legislation unconstitutional ntitled-9 1 2019-02-20 3:58 PM Differences practising in North to continue working on gov- ernance and licensure, two is- sues that have come to the fore in recent bencher meetings. The regulator decided late last year to strip ex-officio benchers of the right to speak at Convocation, a decision proponents said would in- crease efficiency. Braithwaite says he would like to see Convocation remain a large body — more like a par- liament than a corporate board — in order to promote diver- sity, including representation from outside the Toronto area. "The practice in the North is different than practising within the GTA. It's differ- ent in terms of the distance you travel. . . . Motions in the North aren't as critical as in Southern Ontario," he says. "The majority of all practitio- ners are sole practitioners, and that's even more prominent in the North. . . . That needs to be appreciated by the whole bar." Braithwaite practises em- ployment law at Weaver Sim- mons LLP, which has offices in Sudbury, North Bay and Chapleau, Ont. According to the LSO's by- laws, the northeast electoral region includes the territo- rial districts of Algoma, Co- chrane, Manitoulin, Nipiss- ing, Parry Sound, Sudbury and Timiskaming. The bylaws said that Braithwaite qualifies for "election by acclamation," which is triggered when "the number of candidates eligible to be elected as bencher for an electoral region is the same as or fewer than the number of benchers to be elected for that electoral region." Despite Braithwaite's speedy re-election, most can- didates must wait until after voting takes place April 30 to learn their fate in the highly contested election. With 128 lawyers on the ballot, lawyers have more choices than in 2015, when 95 lawyers ran for election. This year's election has the most candidates since at least 1995, when there were 122 lawyers on the ballot, according to LSO data. LT Jack Braithwaite says the spirited debate around the Statement of Prin- ciples was one factor in his decision to run for re-election. Continued from page 1

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