Posted by Richard D. Lindgren, Counsel
The central legal question in this litigation was whether a provincial election is “substantially equivalent” to the public participation regime established under the EBR. As a matter of statutory interpretation, two of three judges decided in this case that the answer is “no.”
The case arose after the current Ontario government dismantled the province’s cap-and-trade program immediately after winning the June 2018 provincial election with a majority of seats.
In July 2018, the provincial government passed a regulation that effectively terminated the cap-and-trade program. This environmentally significant regulation was made without first posting it as a proposal on the online Environmental Registry for public review and comment under the EBR.
However, the government subsequently invoked the exemption created by section 30(1)(a) of the EBR, which provides that public notice/comment rights under the EBR are not applicable to proposals which have gone through “substantially equivalent” participatory processes.
Accordingly, an exception notice was posted on the Environmental Registry to indicate that the new regulation did not trigger EBR notice/comment requirements because, in the Environment Minister’s opinion, the provincial election was “substantially equivalent” to the public participation process under the EBR. This notice further noted that during the election campaign, the new government had “made a clear election platform commitment to end the cap-and-trade program.”
The Ontario government then introduced Bill 4 (Cap and Trade Cancellation Act, 2018), again without providing any upfront public notice/comment opportunities under the EBR.
In response, Greenpeace Canada applied for judicial review of the Ontario government’s failure to provide public/notice opportunities under the EBR in relation to Bill 4 and the regulation that revoked the cap-and-trade program.
After the judicial review application was issued, the Ontario government belatedly posted an Environmental Registry notice that provided the EBR’s minimum 30 day public comment period in relation to Bill 4. During this timeframe, over 11,000 persons (including CELA) filed comments on Bill 4, and the Environmental Commissioner of Ontario reported that less than 1 per cent of commenters supported Bill 4.
Nevertheless, Bill 4 was passed by the Ontario Legislature in October 2018 and proclaimed in force in November 2018. This legislative step repealed the previous government’s Climate Change Mitigation and Low-carbon Economy Act, 2016.
The judicial review application was argued by the parties in April 2019 before a three judge panel of the Divisional Court. In the court’s judgment released on October 11, 2019, three sets of reasons were provided by the judges:
- Justice Corbett, in dissent, held that “a general election is in no way ‘substantially equivalent’ to the process of public participation prescribed in the EBR”;
- Justice Mew substantially agreed with Justice Corbett that the government “failed to comply with its legal obligations” under the EBR, but found that there would be no useful purpose in granting a judicial remedy; and
- Justice Myers similarly concluded that no remedy should be granted in light of the privative clause in Bill 4, but did not expressly decide whether the EBR’s “exception to public participation” was applicable in this case.
Accordingly, the court declined to grant any declaratory or injunctive relief to address the government’s erroneous reliance upon section 30(1)(a) of the EBR.
The court’s refusal to grant a remedy despite statutory non-compliance is reminiscent of the outcome in MiningWatch v. Canada, where the Supreme Court of Canada found that federal officials had misinterpreted an environmental statute, but in the court’s discretion, no substantive remedy was ordered because the matter had been framed as a test case.
In any event, the Divisional Court’s judgment in the Greenpeace case affirms the value and importance of public participation rights under the EBR. As correctly noted by Justice Corbett:
The EBR would be rendered largely nugatory if a government could ignore its requirements because the government has already made up its mind, prior to public participation, and will not listen to or consider public input in respect to its proposal (para.1)…
The EBR does not just provide for notice. It provides for notice, rights of participation, an obligation on the minister to “take every reasonable step” to ensure that “all comments received” during the process of public participation “are considered when decisions… are made,” and then an obligation on the minister to explain the effect, if any, of the public participation process on the decision taken (para.58).
Therefore, as the current government continues to pass, amend or repeal environmental laws, regulations and policies, CELA anticipates that provincial officials will be mindful of, and fully comply with, Ontarians’ EBR right to meaningful notice/comment opportunities and to have their comments duly considered by governmental decision-makers.