Working with Canadians to…

Working with Canadians to Promote a Low Carbon Economy in Ontario
Introduction
We are taking this opportunity to review and comment on the proposed Bill 4, Cap and Trade Cancellation Act, 2018.[1]

The Cap and Trade Cancellation Act, 2018 will repeal the Climate Change Mitigation and Low-carbon Economy Act, 2016. [2] The Climate Change Mitigation and Low-carbon Economy Act, 2016 is the most recent development in over a decade of efforts to regulate greenhouse gas (GHG) emissions in Ontario in order to help prevent and control climate change.

Passing the Cap and Trade Cancellation Act, 2018 will not be the end of measures to control GHGs in Ontario, regardless of the actions of the Provincial Government. The Federal government’s commitments under the Paris Agreement included the development of a Canada wide system to reduce GHG emissions and it has chosen to do so in part by implementing a national carbon pricing backstop. This was cemented on December 9, 2016 as the Pan-Canadian Framework on Clean Growth and Climate Change.[3] Per Annex I of the Framework, provinces will have to adopt either a carbon tax or a cap and trade system.[4] Passing the Cap and Trade Cancellation Act, 2018 will strip Ontario of its own carbon pricing plan and leave it to the Federal Government to dictate how the carbon pricing will affect Ontarians.

Background
The cap and trade system of carbon pricing is based on the Polluter Pays Principle that was recognised in Canada in the Canadian Environmental Protection Act, 1999.[5] This principle establishes that the “users and producers of pollutants and wastes should bear responsibility for their actions. Companies or people that pollute should pay the costs they impose on society.”[6]

Ontario’s cap and trade program operates as a market on which GHG emitters are given a set number of tonnes of carbon they can emit on a yearly basis. Extra allowances are auctioned on the market and emitters can purchase the allowances which give them the ability to emit carbon past their cap should they need to do so. These companies may also trade the allowances they have purchased amongst themselves. The auctioning of these emissions will produce a massive influx of funds from private business which the province can invest into programs that will help further reduce carbon emissions from individuals or invest in new green technology.[7] Over time the price of tonnes of carbon will increase as an incentive for major emitters to reduce their carbon footprint and transition to new low impact technologies.[8]

Scope and Purpose of our Submissions
This submission examines the constitutional context of the Cap and Trade Cancellation Act, 2018 and examines the economic and social benefits of carbon pricing in Ontario. We argue that the Cap and Trade Cancellation Act, 2018 is contrary to the legal and economic interest of Ontarians.

Part 1: Federalism
In 2016, the federal government reached an agreement with all of the provinces except for Saskatchewan called the Pan-Canadian Framework on Clean Growth and Climate Change.[9] This agreement included a “pricing carbon pollution” pillar whereby the Provinces would either develop their own carbon pricing scheme that meets minimum federal thresholds or would be subject to a federal backstop by means of the Greenhouse Gas Pollution Pricing Act.[10]

On September 14th, 2018, the Ontario Ministry of the Environment, Conservation and Parks announced that it had “filed a statement with the Court of Appeal summarizing the arguments it will make challenging the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act.”[11] However, given the wide breadth the Supreme Court of Canada has given the federal government in enacting legislation, it is unlikely that this court challenge will be successful.

Canada’s Constitution Act, 1867 allocates legislative powers between federal and provincial orders of government in sections 91 and 92, respectively. While provincial Legislatures are given jurisdiction over property and civil rights[12] as well as non-renewable natural resources,[13] the federal Parliament is given the power of taxation[14] as well as the residual power to make “Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”[15]

Peace, Order, and Good Government
Canadian jurisprudence has limited the scope of the “Peace, Order, and good Government” power by expansively interpreting enumerated provincial powers and by developing restrictive interpretive doctrines of the power.[16] These doctrines include the Residual Branch, the Emergency Branch, and the National Concern Branch.

The residual branch is rarely used and allows the federal government jurisdiction over issues the drafters of the Constitution did not anticipate but would have unambiguously allocated to Parliament if they had.[17] Given the novelty of climate change as an issue and the absence of scientific understanding of the relationship between GHGs and the climate system when the provincial and federal powers were enumerated in 1867, there is some chance that laws respecting climate change would be deemed residual and therefore under federal jurisdiction. However, the Supreme Court’s broad interpretation of the provincial power over property and civil rights under section 92(13) that applies it to transactions within the province could also apply with respect to carbon pricing legislation, which would make the residual branch of the “Peace, Order, and good Government” inapplicable. In his “Legal Opinion on the Constitutionality of the Federal Carbon Pricing Benchmark & Backstop Proposals”, Bryan Schwartz noted that the Court would be evaluating the constitutionality not of the matter generally, but of the Greenhouse Gas Pollution Pricing Act specifically, which is directly aimed at consumption.[18]

The emergency branch can be used to invoke the “Peace, Order and Good Government” power during times of war and famine and will allow Parliament to intervene in matters of provincial jurisdiction.[19] The 1976 Anti-Inflation Reference expanded the scope of the power to include matters of economic crisis.[20] The 1988 Emergencies Act narrowed the scope of this power to require a declaration of an emergency to concisely describe the state of affairs constituting the emergency and to be reviewed by Parliament.[21] While Parliament could enact climate legislation using the emergency branch of the “Peace, Order and Good Government” power, it would need to do so explicitly by declaring that climate change is an emergency, which it has thus far not done.

The most expansive branch is that of national concern, whereby Parliament is allowed to legislate on provincial matters when issues arise of national importance. The test is articulated in Ontario v Canada Temperance Foundation as whether the matter “goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole.”[22] The Court allowed for the use of the “Peace, Order, and Good Government” power to be validly invoked for the prevention of an emergency: “It would seem to follow that if the Parliament could legislate when there was an actual epidemic it could do so to prevent one occurring and also to prevent it happening again.”[23]

In Schneider, the Court ruled that where the failure of one province to provide treatment facilities for heroin addicts will not endanger the interests of another province, the subject is not one which “has attained such dimensions as to affect the body politic of the Dominion.” [24] This is applicable to climate change where it is likely that a court will find the failure of one province to regulate emissions undermines the efforts of other provinces and contributes to the detrimental effects of climate change, which are felt nation-wide. Though courts have been reluctant to apply this doctrine lightly, this cross provincial impact may raise the issue to the level of a national concern.

While federal climate change legislation would likely be upheld under the “Peace, Order, and Good Government” power, this question remains to be determined by the courts, along with the question of whether carbon pricing is an effective and valid means of enacting such legislation. We will address the effectiveness of carbon pricing in part 2 of this submission.

Criminal Law
Peter Hogg has argued that the federal criminal law power is the primary head of power available to Parliament in to control GHG emissions, this is primarily because of the Court’s willingness to view the regulation of toxins, rather than only their prohibition under the federal Canadian Environmental Protection Act as valid under the criminal law power.[25]

The criminal law power may indeed be available to Parliament in regulating GHG emissions, especially after they were added to CEPA’s Schedule I, “List of Toxic Substances”[26] and after the Federal Court of Appeal supported CEPA regulations requiring two percent renewable fuel in all diesel fuel produced, imported, and sold in Canada.[27] However, we agree with Bryan Schwartz that carbon pricing would meet the test for characterization as a “criminal law measure”, this is because “the carbon tax/levy would raise the price of certain activities, but it would not ban them” or even limit them directly.[28]

Cooperative Federalism
Where the “pith and substance” of a statute does not fall exclusively within the established heads of power, the Court may apply the double aspect doctrine which allows both levels of government to legislate in the same area. The courts understand that in some circumstances it is inevitable for both levels of government to legislate in the same area and often beneficial for this to occur.[29] The judiciary has shown a growing fondness for the doctrine over time, only showing reluctance when applying the doctrine to the regulation of trade and labour relations.[30] This means that while the federal government legislation would likely be found valid, provincial governments would also likely be found able to enact valid climate change legislation under their power over property and civil rights as well as their power over non-renewable natural resources.

Even if legislation is within the jurisdiction of the enacting level of government, it may have to be limited in its application (or "read down") so as not to touch “matters” that lie at what has become termed the “core” or “heart” of the other level of government's areas of exclusive jurisdiction, this is known as the principle of interjurisdictional immunity.[31] This principle is relevant because the federal Greenhouse Gas Pollution Pricing Act is designed to be complementary to provincial legislation by creating a backstop, or baseline of carbon pricing that provinces may surpass.[32]

The final relevant principle of federalism is that of paramountcy. Even if a provincial law is valid and applicable in the circumstances in question, it will be rendered inoperative if it conflicts with a valid federal statute that applies to the same facts.[33] This principle constitutes a final backstop by which the primacy federal jurisdiction can be asserted. This is not to say that the province of Ontario cannot legislate with respect to carbon pricing, but that its legislation may not conflict with valid federal statute.

In Spraytech v Hudson,[34] Justice Heureux-Dube, reinforced the majority decision by referring to the Principle of Subsidiarity from European courts, which states that the “level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity” is often best suited to law-making and implementation.[35] In this case, the principle was used to stress the value of cooperation between federal, provincial, and municipal government in the area of environmental protection. The federal law and municipal by-law were found not to be in conflict because the municipal by-law complemented the federal law.[36]

The federal government has a strong case for jurisdiction over climate change legislation generally—and carbon pricing specifically—due to the federal taxation power. This is not to say that the provinces do not also have jurisdiction over carbon pricing. In fact, the option given to the provinces to develop their own means of compliance with carbon pricing would likely be seen by the courts as an exercise in cooperative federalism and deemed intra vires. This will mean that the federal government backstop will apply in Ontario as of January 1, 2019.[37]

Part 2: Benefits of Carbon Pricing

Economic Benefits
A carbon pricing program promotes further growth of Ontario’s economy. This is realised through new economic activity, lower costs of goods and services, and clarity for businesses.

New Economic Activity
Putting a price on carbon not only raises billions of dollars in government revenues, but can also increase investment in infrastructure, new industries, and other initiatives. The Ontario economy has been experiencing its strongest pace of growth since the early 2000s with an annual average real GDP increase of 2.7 per cent per year during the past four years (2013-2017).[38] In addition, a total of 128,400 net new jobs (+1.8 per cent) were created in 2017, the largest annual employment increase since 2003.[39] It appears that the implementation of Ontario’s cap and trade program in January 2017 did not hurt economic growth. In fact, in the short 19 months of its existence, the program collected $2.87 billion dollars from large emitters of GHG emissions.[40] It also seemed to be well designed: 96 per cent of 2017 vintage allowances offered were sold at auction as well as 100 per cent of the permits available for 2018.[41] Ontario’s cap and trade system was working, and provided significant funding for much-needed new investments in infrastructure.

The government revenues collected through a carbon price program can be reinvested back into the economy to create new infrastructure that is resilient to the increasing burden of extreme weather events. In recent years, Ontario has experienced many climate change-related catastrophes that have led to deaths, illness, and billions of dollars of damage.[42]

A particular concern has been the inadequate municipal wastewater treatments plants and stormwater systems in many parts of the province. More frequent occurrences of high-intensity precipitation have overwhelmed the aging infrastructure in the province, leading to significant flooding. For example, the 2013 Toronto flood resulted in up to a billion litres of sewage, garbage, and debris being washed away in local rivers and Lake Ontario.[43] It also led to $940 million in insured damage; the costliest insured disaster in Ontario’s history.[44] It is estimated that the cost of replacing aging infrastructure across Canada to cope with the new realities of climate change is $141 billion.[45] Funds collected through a carbon pricing system can be used for new infrastructure, which leads to the creation of thousands of long-lasting, well-paying jobs and increased economic activity.

Another economic benefit of a carbon pricing program is investment in the cleantech industry and other initiatives. The government-funded Institute for Competitiveness and Prosperity has long argued that the province should focus on transitioning to a low-carbon economy due to the increasing demand for less carbon-intensive energy, products, and services.[46] As part of this strategy, the province should establish cleantech hubs to attract new investment, jobs, and products which can be exported to other economies.[47] Ontario is already home to the fastest growing cleantech sector in Canada – over 5000 companies generating over $19.8 billion in annual revenue and employing 130,000 people.[48]

With a global market for low-carbon goods and services already worth over US$5.8 trillion, Ontario is presented with a great opportunity to use carbon price revenues to invest in existing and new cleantech initiatives.[49] Under the province’s previous cap and trade program, approximately $1.9 billion in government revenue was used to “fund, directly or indirectly, costs relating to initiatives ... that are reasonably likely to reduce, or support the reduction of, greenhouse gas.”[50] Over 50 initiatives, such as the GO Regional Express Rail Program, the Electric Vehicle Incentive Program, and various energy retrofit programs, to over 500 recipients, such as municipalities, businesses, hospitals, schools, social housing providers, colleges, and universities, received funding through the Greenhouse Gas Reduction Account (GGRA).[51] These vital investments in the province’s infrastructure and industries will leave a positive impact on future economic growth.

Lower Costs of Goods and Services
A cap and trade program will lower the future cost of various goods and services, such as insurance. Some insurers, such as Intact Financial, have already raised premiums by 15-20% as a result of increasing costs of weather-related property damage.[52] To counter these rising insurance costs, the government should use a carbon price program to lower GHG emissions and invest in new infrastructure, which would help Ontarians adapt to climate change. The Insurance Bureau of Canada (IBC) has publicly expressed their support for government action through improved infrastructure and flood risk mitigation.[53] The cost of doing nothing to cope with climate change will be much higher in the near future if the current trend of inaction continues. A recent U.S. study has found that for every $1 spent on reducing the risk of future hazards, the country will save $6 in future disaster costs.[54] The revenue raised in the present from a carbon price program can have a significant effect on reducing future emissions and costs.

Some have argued that carbon pricing leads to higher costs, which negatively affects consumer behaviour and lowers company profits. This is a misguided presumption because the macroeconomic impacts of a carbon price program are relatively small. The Clean Economy Alliance reports that the $2 billion worth of permits sold under the previous cap and trade program was just 0.25 per cent of the province’s $800 billion in GDP.[55] In addition, the large GHG emitters who took part in Ontario’s cap and trade program did not pass these relatively small costs to consumers. For example, gasoline sales were not affected by the additional costs taken on by large businesses.[56] While cap and trade added approximately four cents per litre of gasoline, this increase did not influence consumer behaviour because gas prices at the pump in Ontario regularly fluctuate by more than four cents week over week.[57] The impact of carbon pricing on a GHG emitter’s bottom-line is insignificant compared to its effect on lowering future costs for the average Ontario consumer.

Clarity for Businesses
The business community is seeking leadership and guidance from Ontario’s government on how to tackle climate change. With the cancellation of Ontario’s cap and trade program, businesses are unsure of their future costs. Brenda Stenta, the Corporate Communication Manager of steel producer Algoma has stated: “We need clarity around the costs and regulatory implications for our business in the absence of cap and trade.”[58] The national carbon price system, coming into effect next year through the federal government’s Pan-Canadian Framework, raises additional uncertainty surrounding its effect on Ontario businesses. The provincial government has recently announced that it will join Saskatchewan in challenging the constitutionality of the federal carbon pricing system in court. The office of the Environment Commissioner of Ontario has expressed its disagreement with the province’s plan to fight this federal backstop because of the importance of putting a price on carbon and the high likelihood of such a challenge failing in court.[59]

Ontario businesses want to implement the best strategies to adapt to climate change. The Ontario Chamber of Commerce has expressed that “Ontario’s business community supports action to fight climate change.”[60] Furthermore, they state that “businesses prefer market-based approaches that put a price on carbon [because] in contrast to a strict regulatory approach ... carbon-pricing policies can offer maximum flexibility for emitters to comply.”[61] The Ecofiscal Commission also confirmed its preference for a market-based approach to fighting climate change by arguing that “carbon pricing’s big advantage is that it can drive a given amount of emissions reductions at lower cost than alternative policies.”[62] Carbon pricing has proven to work well in the past for businesses. More than two decades ago, a cap and trade program was introduced to limit sulphur dioxide (SO2) emissions in both Canada and the U.S. The program was a success because it “created an incentive for businesses to install better SO2 scrubbers for their smokestacks, which substantially reduced the costs of compliance.”[63] Although the main goal of a business is to make profit, they are also made up of individuals who care about Ontario’s future.

Social Benefits
Lowering emissions through a carbon price program leads to many other benefits for Ontario’s population, such as health improvements, protection of the most vulnerable members of society, and multijurisdictional cooperation.

Health Improvements
The harmful effects of increased GHG pollution to people across the globe have been well documented. The recent 2018 report by the Environmental Commissioner of Ontario lists several examples of how climate change is affecting the health of Ontarians. These include: many health problems such as asthma, dementia, and heart disease; an increase in travel-related cases of the Zika virus infection, West Nile, and Lyme disease; and premature death.[64] The consequences of climate change in other provinces and countries are also negatively affecting the health of the people of Ontario. During the summer of 2018, smoke from large wildfires in British Columbia traveled long distances to create serious air quality problems in the province.[65] Wildfire smoke contains “small particles, carbon monoxide, volatile organic compounds and other ozone-producing gases, all of which can trigger or worsen health problems.”[66] Vector-borne diseases, such as malaria and dengue fever, are expanding their ranges of infection by continuously moving north from tropical regions.[67] If carbon emissions are not significantly lowered soon, more health problems will arise.

A price on carbon would lower emissions and as a result, create an environment that promotes better health. Medical experts have argued that “departing from our current fossil fuel-based economy may offer some of the most beneficial health opportunities in over a century.”[68] Other jurisdictions in North America have achieved substantial health benefits due to carbon price initiatives. Under the Regional Greenhouse Gas Initiative (RGGI), nine states in the American northeast have worked together to implement a carbon price for the electric power sector. From 2007 to 2015, these states reduced GHG emissions by 40% in this sector, resulting in an estimated US$5.7 billion in health savings and other benefits.[69] Reducing GHG emissions produced by various sectors, such as transportation, buildings, agriculture, waste, and electricity, is key to achieving better health. As Ontarians become healthier, they become more productive and active participants in the labour force, while lowering costs for the provincial health care system.[70]

Protection of the Vulnerable
Climate change often impacts the most vulnerable members of our society in a more severe way. Indigenous people, children, the poor, and communities of colour bear a disproportionate vulnerability to many environmental health threats.[71] Various First Nations have expressed a strong interest in promoting the reduction of GHG emissions through a variety of different initiatives, such as renewable energy projects.[72] The province recently announced the cancellations of ten of these projects, eight of which involved the participation of First Nations communities.[73] This will lead to a lost opportunity in realising important economic and social benefits for some of the most vulnerable members of Ontario. Zac McCue, a member of Curve Lake First Nation expressed his disappointment with this decision by saying: “It is incredibly short-sighted and backwards looking in terms of reconciliation and local economic opportunities, not to mention reducing our emissions.”[74]

Infants and children are also more vulnerable to climate change. By having higher respiratory rates than adults, they experience greater exposure to air pollutants, which leads to an increase in harmful health effects and disease, such as asthma.[75] Finally, by not promoting the reduction of GHG emissions, the effects on low-income Ontarians will be drastic. According to one study, climate change could increase the risk of hunger from 34% of the global population in 2014 to a level of 64-72% by 2050.[76] Putting a price on carbon will alleviate some of the concerns surrounding climate change and protect the most vulnerable members of society.

Multijurisdictional Cooperation
Ontario should work with other Canadian provinces and jurisdictions in other countries to reduce GHG emissions. The success of the RGGI involving nine Northeastern U.S. states proves that multijurisdictional cooperation is effective over a sustained period of time. In his recent detailed account of various carbon pricing systems in North America, University of Michigan Professor Barry G. Rabe, has argued that the “RGGI represents a voluntary policy decision taken in concert across nine sovereign states, each acting collectively after an internal political decision to pursue collaboration and then maintain that agreement over time.”[77] Furthermore, the RGGI “represents a significant foundation of trust established between these states, their lead executive agencies, and key stakeholders [... and] thus offers a model for jurisdictions in other federations or multilevel systems to consider.”[78] When Ontario joined the Western Climate Initiative earlier this year, GHG emitters worked in cooperation with others in Québec and California to create an effective cap and trade system across jurisdictions. This resulted in a larger market for buying and selling emissions permits, which leads to lower carbon prices.[79] The Ontario provincial government will show leadership and achieve many benefits for its residents by working with other jurisdictions to tackle the global threat of climate change.

Recommendations
1: Future proof Ontario business by establishing a carbon pricing program early.
Carbon pricing is an inevitable reality for businesses in Canada, and Ontario businesses are aware of this. It is necessary to establish a carbon pricing program as soon as possible to allow our businesses to future proof their budgets, establish policies and procedures for working within a carbon pricing system, and begin adopting clean technology sooner rather than later.

2: Protect the Ontario’s residents from the effect of GHGs on human health.
There are tangible consequences to human health if the current level of GHG emissions continues unabated. The Provincial government must take steps now to ensure that the impact of GHGs on Ontario resident’s health is mitigated as soon as possible.

3: Maintain or strengthen the current cap and trade regime.
Whether it is the current cap and trade program, or a new program to be introduced, the Provincial Government should not let Ontario be caught flat footed when Federal or international pressures inevitably force Ontario to adopt a carbon pricing regime.

[1] Cap and Trade Cancellation Act, 2018, 1st Sess, 42nd Leg, Ontario, 2018.
[2] Climate Change Mitigation and Low-carbon Economy Act, 2016 SO 2016, c 7.
[3] Government of Canada, News Release, “Communiqué of Canada’s First Ministers” (9 December 2016), Online: <pm.gc.ca/eng/news/2016/12/09/communique-canadas-first-ministers>.
[4] Pan‑Canadian Framework On Clean Growth And Climate Change: Canada's plan to address climate change and grow the economy, 2016, at 50, online: <publications.gc.ca/collections/collection_2017/eccc/En4-294-2016-eng.pdf>.
[5] Canadian Environmental Protection Act, 1999 SC 1999, c 33 at Preamble.
[6] Government of Canada, “Guide to understanding the Canadian Environmental Protection Act: chapter 3” (20 March 2017), online: <www.canada.ca/en/environment-climate-change/services/canadian-environme…;.
[7] Government of Ontario, “Cap and Trade in Ontario” (25 July 2018), online: <www.ontario.ca/page/cap-and-trade-ontario&gt;.
[8] Ibid.
[9] Environment and Climate Change Canada, News Release, “Pan-Canadian Approach to Pricing Carbon Pollution” (3 October 2016), online: <www.canada.ca/en/environment-climate-change/news/2016/10/canadian-appro…;.
[10] RSC 2018, c 12, s 186.
[11] Ontario Ministry of the Environment, Conservation and Parks, News Release, “Ontario Files Arguments to Challenge the Federal Government’s Carbon Tax” (14 September 2018), online: <news.ontario.ca/ene/en/2018/09/ontario-files-arguments-to-challenge-the-federal-governments-carbon-tax.html>.
[12] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(13), reprinted in RSC 1985.
[13] Ibid, 92(1).
[14] Ibid, 91(3).
[15] Ibid, 91.
[16] Patrick Monahan (2006), Constitutional Law, Third Edition, Toronto: Irwin Law, 254.
[17] Ibid, 259.
[18] Bryan Schwartz, “Legal Opinion on the Constitutionality of the Federal Carbon Pricing Benchmark & Backstop Proposals” (2017), Prepared for: The Government of Manitoba, online (pdf): <https://manitoba.ca/asset_library/en/climatechange/federal_carbon_prici…;.
[19] Re: Board of Commerce, [1920] 60 SCR 456 at para 200.
[20] Re: Anti-Inflation Act, [1976] 2 SCR 373 at 375, 68 DLR (3d) 452.
[21] Emergencies Act, RSC 1985, c 22 (4th Supp), ss 6, 17, 28, 38.
[22] Attorney-General of Ontario et al v Canada Temperance Foundation et al, [1946] AC 193 (PC) 2 DLR at para 205.
[23] Ibid at 7.
[24] Schneider v the Queen, [1982] SCR 112 at 131, 139 DLR (3d) 417.
[25] Peter Hogg, “Constitutional Authority over Greenhouse Gas Emissions” (2009) 46:2 Alb L Rev 507 at 511; Canadian Environmental Protection Act, SC, 1999, c 33 [CEPA]; R v Hydro-Quebec, [1997] 3 SCR 213, 151 DLR (4th) 32.
[26] Ibid, CEPA Schedule I Nos. 74-79.
[27] Syncrude Canada Ltd v Canada (Attorney General), 2016 FCA 160 (CanLII).
[28] Supra note 24 at 38.
[29] Peter C Oliver, “The Busy Harbours of Canadian Federalism: The Division of Powers and Its Doctrines in the McLachlin Court” in David A Wright and Adam M Dodek, eds Public Law at the McLachlin Court: The First Decade (Toronto: Irwin Law) 167 at 169.
[30] Bruce Ryder, “The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and the First Nations” (1991) 36:2 McGill LJ 308 at 334.
[31] Peter W Hogg & Rahat Godil, “Narrowing Interjurisdictional Immunity” (2008) 42 Sup Ct Rev 623 at 634.
[32] Supra note 10.
[33] Rothmans, Benson & Hedges Inc v Saskatchewan, 2005 SCC 13 at para 11.
[34] 114957 Canada Ltée (Spraytech, Société dʼarrosage) v Hudson (Town), 2001 SCC 40.
[35] Ibid at para 3.
[36] Ibid at para 5.
[37] Environment and Climate Change Canada, Technical Paper on the Federal Carbon Pricing Backstop, No En4-306/2017E-PDF (Ottawa: Environment and Climate Change Canada, 2017).
[38] Financial Accountability Office of Ontario, Economic and Budget Outlook: Assessing Ontario’s Medium-term Budget Plan, May 2, 2018, at 5, online (pdf): <www.fao-on.org/web/default/files/publications/EBO%20Spring%202018/EBO%2… >.
[39] Ibid.
[40] Environmental Commissioner of Ontario, Climate Action in Ontario: What’s Next? 2018 Greenhouse Gas Progress Report, September 2018, at 132, online (pdf): <docs.assets.eco.on.ca/reports/climate-change/2018/Climate-Action-in-Ontario.pdf>.
[41] Clean Economy Alliance, A Progress Report on Ontario’s Cap and Trade Program and Climate Change Action Plan: Year One (18 April 2018) at 12, online (pdf): <cleaneconomyalliance.ca/wp-content/uploads/2018/04/CapAnd
TradeReportYearOne-FINAL-WEB.pdf>.
[42] Environmental Commissioner of Ontario, supra note 40 at 23, 25-30.
[43] Ibid at 29.
[44] Ibid.
[45] Ibid at 34.
[46] The Institute for Competitiveness & Prosperity, “Toward a Low-Carbon Economy: The costs and benefits of cap-and-trade” (April 2016), online (pdf): <www.competeprosper.ca/uploads/2016_WP25_FINAL.pdf&gt;.
[47] Ibid at 14.
[48] Environmental Commissioner of Ontario, supra note 40 at 86.
[49] Ibid at 87.
[50] Ibid at 212.
[51] Ibid at 61.
[52] Ibid at 30.
[53] Ibid.
[54] Ibid at 187.
[55] Clean Economy Alliance, supra note 41 at 5.
[56] Ibid at 7.
[57] Ibid.
[58] Environmental Commissioner of Ontario, supra note 40 at 72.
[59] Ibid.
[60] Ontario Chamber of Commerce, “Clean Profits: Pricing Carbon and Embracing the Economic Potential of Cap and Trade” (2015) at 2, online (pdf): <www.occ.ca/wp-content/uploads/Cap-and-Trade-Report-1.pdf&gt;.
[61] Ibid.
[62] Canada’s Ecofiscal Commission “The way forward: a practical approach to reducing Canada’s greenhouse gas emissions” (2015) at 25, online (pdf): <ecofiscal.ca/wp-content/uploads/2015/04/Ecofiscal-Commission-Report-The-Way-Forward-April-2015.pdf>.
[63] Environmental Commissioner of Ontario, supra note 40 at 122.
[64] Ibid at 29 and 32.
[65] Ibid at 32.
[66] Ibid.
[67] Kent E Pinkerton & William N Rom, “Chapter 1: Introduction: Consequences of Global Warming to the Public’s Health” in Kent E Pinkerton & William N Rom, eds, Global Climate Change and Public Health (New York: Humana Press, 2014) 1 at 12.
[68] Jonathan Patz, “Chapter 12: Climate Variability and Change: Food, Water, and Societal Impacts” in Kent E Pinkerton & William N Rom, eds, Global Climate Change and Public Health (New York: Humana Press, 2014) 211 at 211.
[69] Environmental Commissioner of Ontario, supra note 40 at 85-86.
[70] The Institute for Competitiveness & Prosperity, supra note 46 at 15.
[71] Patz, supra note 68 at 227.
[72] Environmental Commissioner of Ontario, supra note 40 at 78.
[73] Ibid.
[74] Ibid.
[75] Roya Kelishadi and Parinaz Poursafa, “Chapter 15: The Effects of Climate Change and Air Pollution on Children and Mothers’ Health” in Kent E Pinkerton & William N Rom, eds, Global Climate Change and Public Health (New York: Humana Press, 2014) 273 at 275.
[76] Ibid at 215.
[77] Barry G Rabe, Can We Price Carbon? (Cambridge, Massachusettes: MIT Press, 2018) at 133.
[78] Ibid at 134.
[79] Canada’s Ecofiscal Commission “Clearing the Air: How Carbon Pricing Helps Canada Fight Climate Change” (April 2018) at 25, online (pdf): <ecofiscal.ca/wp-content/uploads/2018/04/Ecofiscal-Commission-Carbon-Pricing-Report-Clearing-the-Air-April-4-2018.pdf>.

TABLE OF AUTHORITIES

Statute:
Canadian Environmental Protection Act, 1999, SC 1999, c 33.
Cap and Trade Cancellation Act, 2018, 1st Sess, 42nd Leg, Ontario, 2018.
Climate Change Mitigation and Low-carbon Economy Act, 2016, SO 2016, c 7.
Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985.
Greenhouse Gas Pollution Pricing Act, RSC 2018, c 12.
Emergencies Act, RSC 1985, c 22 (4th Supp).

Jurisprudence:
114957 Canada Ltée (Spraytech, Société dʼarrosage) v Hudson (Town), 2001 SCC 40.
Attorney-General of Ontario et al v Canada Temperance Foundation et al, [1946] AC 193 (PC) 2 DLR.
Re: Board of Commerce, [1920] 60 SCR 456.
Re: Anti-Inflation Act, [1976] 2 SCR 373, 68 DLR (3d) 452.
Rothmans, Benson & Hedges Inc v Saskatchewan, 2005 SCC 13.
Schneider v the Queen, [1982] SCR 112, 139 DLR (3d) 417.
Syncrude Canada Ltd v Canada (Attorney General), 2016 FCA 160 (CanLII).
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