Order in Council 1014/2018

On the recommendation of the undersigned, the Lieutenant Governor of Ontario, by and with the advice and concurrence of the Executive Council of Ontario, orders that:

Whereas

On June 21, 2018, the Budget Implementation Act, 2018, No. 1, SC 2018, c. 12 received Royal Assent.

Part 5 of the Budget Implementation Act, 2018, No. 1 enacted the Greenhouse Gas Pollution Pricing Act.

Part 1 of the Greenhouse Gas Pollution Pricing Act levies charges on fuel delivered, used, brought into, or produced in a listed province and combustible waste burned in a listed province.

Part 2 of the Greenhouse Gas Pollution Pricing Act establishes a cap-and-trade regime for pricing industrial greenhouse gas emissions and levies a charge on facilities that emit greenhouse gases in a quantity that exceeds their emissions limit.

Sections 165 and 188 of the Greenhouse Gas Pollution Pricing Act require the Minister of National Revenue to distribute the revenues raised by the charges levied under the Act to the province in which they were levied or to other prescribed persons or classes of persons.

Sections 166 and 189 of the Greenhouse Gas Pollution Pricing Act permit the Governor in Council to determine in which provinces the Act will apply taking into account, as the primary factor, whether the federal government believes provincial pricing mechanisms for greenhouse gas emissions are sufficiently stringent.

On July 3, 2018, O.Reg. 386/18 (Prohibition Against the Purchase, Sale and Other Dealings with Emission Allowances and Credits) was filed, which revoked O.Reg. 144/16 (The Cap and Trade Program) under the Climate Change Mitigation and Low-carbon Economy Act, 2016, SO 2016, c. 7.

The Government of Ontario has announced it will introduce legislation that, if passed, would repeal the Climate Change Mitigation and Low-carbon Economy Act, 2016.

It is in the public interest that the issues raised concerning the constitutional validity of the Greenhouse Gas Pollution Pricing Act be settled authoritatively as soon as possible.

Therefore, there be referred to the Court of Appeal for Ontario for hearing and consideration pursuant to section 8 of the Courts of Justice Act, RSO 1990, c. C.43 the following question:

Is the Greenhouse Gas Pollution Pricing Act, Part 5 of the Budget Implementation Act, 2018, No. 1, SC 2018, c. 12, unconstitutional in whole or in part?