The majority found that the fuel charge and excess emissions charges imposed under the Greenhouse Gas Pollution Pricing Act, Part 5 (the “GGPPA”) of the Budget Implementation Act, 2018, No. 1 are constitutionally valid on the basis of coming within the national concern branch of the federal peace, order and good government (POGG) power. In this regard, it stated (at paras. 167, 181-183 and 198):
Canada has adduced evidence that clearly shows that establishing minimum national standards of GHG [greenhouse gas] price stringency to reduce GHG emissions is of sufficient concern to Canada as a whole that it warrants consideration in accordance with the national concern doctrine. …
[P]rovincial inability is established in this case.
… First, the provinces, acting alone or together, are constitutionally incapable of establishing minimum national standards of GHG price stringency to reduce GHG emissions. …
Second, a failure to include one province in the scheme would jeopardize its success in the rest of Canada. …
Moreover, the matter’s impact on the provinces’ freedom to legislate and on areas of provincial life that would fall under provincial heads of power is qualified and limited.
In addressing Ontario’s argument “that the fuel and excess emission charges imposed by the GGPPA do not have a sufficient nexus with the regulatory scheme to be considered constitutionally valid regulatory charges” (para. 212), the majority first noted that “[t]o be a regulatory charge, as opposed to a tax, a governmental levy with the characteristics of a tax must be connected to a regulatory scheme” (para. 213), and then found (at para. 216) that to establish such nexus, there was no requirement that “the revenues that are collected be used to further the purposes of the regulatory scheme,” and that:
Where, as in the instant case, the charge itself is a regulatory mechanism that promotes compliance with the scheme or furthers its objective, the nexus between the scheme and the levy inheres in the charge itself.
And at para. 219:
Ontario does not assert, nor would such an assertion be supportable, that the levies in this case amount to disguised taxation. The GGPPA as a whole is directed to establishing minimum national standards of GHG price stringency to reduce GHG emissions, not to the generation of revenue.