Amir Attaran

Greenpeace Canada brought an application for judicial review seeking a declaration that the Ontario government unlawfully cancelled the cap and trade program without following the public consultation requirements of the Environmental Bill of Rights (EBR).

The Minister had claimed an exemption under the EBR, arguing that the recent general election was a substantially equivalent process of public participation.

The Divisional Court found that the election was not substantially equivalent and the government failed to comply with the EBR.

However, the application was dismissed because the government subsequently passed valid legislation repealing the cap and trade program and barring proceedings, rendering the requested declaratory relief of no practical effect.

The respondents brought a motion to quash an application for judicial review on the basis of mootness.

The underlying application challenged the Minister's decision to invoke an exception under the Environmental Bill of Rights, bypassing public consultation for revoking the cap and trade program by claiming the recent provincial election was a substantially equivalent process.

The Divisional Court dismissed the motion to quash, finding that the scope of the Minister's exception power remains a live controversy despite the subsequent repeal of the relevant legislation.

The court further held that even if the matter were moot, it would exercise its discretion to hear the application to provide clarity on the statutory exemption.

This decision addresses motions for leave to intervene and to file records in a constitutional reference concerning the Greenhouse Gas Pollution Pricing Act.

The motion judge granted leave to intervene to twelve parties, including three Attorneys General as of right and nine additional parties seeking discretionary leave.

The judge declined to grant leave to one individual applicant.

The decision also addresses the scope of factums, oral argument time allocation, and the relaxed approach to supplementing the record in constitutional references as a court of first instance.