On October 11, 2019, the Superior Court of Ontario dismissed Greenpeace's case on the grounds that declaratory relief was not available. Two of the three judges reasoned that declaratory relief would have no practical effect because the statute that gave authority for the regulation at issue had been repealed. Had declaratory relief been able to have practical effect, two of the judges would have found that the Ontario government was required to participate in public participation before enacting the cancelling regulation.
Prior to the dismissal, on January 25, 2019, the court rejected a motion to dismiss on the grounds that the dispute was moot, reasoning that there was still a live dispute over whether the public participation in question was lawful.
Environmental groups filed suit against the Ontarian government, alleging the government failed to meet legal requirements for public consultation on regulations that would end Ontario’s cap and trade program and a proposed bill that would undercut the province’s legislative regime for combatting climate change. Plaintiffs argued that both the regulations and bill violate requirements under the Environmental Bill of Rights (EBR) for public participation in the development of environmentally significant regulations and legislation.
The lawsuit concerns Ontario Regulation 386/18 filed on July 3, 2018 by the Minister of Environment, Conservation and Parks. The government did not conduct a public consultation process and filed a claim that the 2018 election was “substantially equivalent” to the 30-day consultation process required by law. Plaintiffs argued that the government was still required to undertake public consultation for the regulation under the EBR and that the regulation is ultra vires because it contradicts the purpose of the “Climate Change Mitigation and Low-Carbon Economy Act,” the enabling act for this regulation. The lawsuit additionally concerned “Bill 4, the Cap and Trade Cancellation Act, 2018” filed on July 25, 2018. This bill would repeal the “Climate Change Mitigation and Low-carbon Economy Act, 2016” which includes greenhouse gas emission reduction targets. Plaintiffs argued that this bill would have a significant environmental impact because it would repeal existing greenhouse gas emissions targets without establishing new targets. If there is a significant environmental impact, then the government must undertake the mandatory notice and comment process required by the EBR.
Plaintiffs sought declaratory relief and asked the Court to quash the regulations.