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Constitution (Non-Charter) - Colourability. National Steel Car Limited v. Independent Electricity System Operator
In National Steel Car Limited v. Independent Electricity System Operator (Ont CA, 2024) the Ontario Court of Appeal dismissed a 'taxation' constitutional challenge to the 'FIT Program', a renewable electricity program under the Green Energy and Green Economy Act, 2009.
Here the court considers the legal concept of constitutional 'colourability':[52] As the late Professor Peter W. Hogg stated in Constitutional Law of Canada: “The ‘colourability’ doctrine is invoked when a statute bears the formal trappings of a matter within jurisdiction, but in reality is addressed to a matter outside jurisdiction”: Peter W. Hogg and Wade K. Wright, 5th ed. (Scarborough, ON: Carswell, 2023), at § 15:11. As explained in Reference re Firearms Act, 1998 ABCA 305, 164 D.L.R. (4th) 513, aff’d 2000 SCC 31, [2000] 1 S.C.R. 783, an ulterior motive is not a prerequisite to a finding of colourability, but in some cases, Parliament might try to invade an area of provincial jurisdiction by disguising the true nature of its legislation. The court stated at para. 128:Certainly, where an ulterior motive is present, it is arguably easier to see how Parliament acted colourably because there is an aspect of deceptiveness to the legislative action. But in other cases, Parliament may not hide its intentions and may forthrightly, but incorrectly, claim a matter falling within provincial powers as its own. [53] Thus, there are at least two means of establishing colourability: either directly or indirectly through disguise, often in the presence of an ulterior motive.
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