Sask. faces uphill battle in carbon tax lawsuit with CRA, legal experts say
CBC
Saskatchewan's latest legal challenge of the carbon tax is "ambitious" but would require federal courts to "make new law" while attempting to revisit a case decided just three years ago at the Supreme Court of Canada, according to a trio of legal experts.
Last week, the government of Saskatchewan filed a lawsuit in federal court, attempting to stop the Canada Revenue Agency (CRA) from garnishing $28 million that the CRA says the province owes for failing to collect and remit part of the carbon tax.
The request for an injunction and judicial review was made in a federal court in Vancouver in an attempt to get a hearing as soon as possible, according to Saskatchewan Justice Minister Bronwyn Eyre.
A temporary injunction was granted Monday until a more fulsome hearing can be heard on the merits.
While the CRA is attempting to garnish $28 million, documents filed in court show the federal government believes that the province could owe as much as $56 million as of the end of April.
As more time passes, that figure will continue to grow. The provincial government says it is only remitting part of what is owed under the carbon tax, choosing to not send the portion that applies to natural gas for home heating.
The province has hired Osler, Hoskin & Harcourt LLP as its outside counsel to handle the litigation. The Canadian business law firm has former Premier Brad Wall as a special advisor.
Experts who have reviewed the court filings say the province faces an uphill battle in its lawsuit.
"If you're betting, you'd always bet on the status quo that Saskatchewan here is going to lose," said Rory Gillis, a law professor at Western University.
Other experts stressed that the lawsuit does have legal merit even if it is seemingly motivated by politics.
"I think it's a case that's being put forward with genuine constitutional arguments," said Eric Adams, a law professor with the University of Alberta.
"But having a genuine constitutional argument doesn't mean winning."
Court documents show the province is putting forward two separate arguments in court.
First is an argument that the Greenhouse Gas Pollution Pricing Act (GGPPA) is now unconstitutional.