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St. John’s, NL – The Canadian Constitution Foundation (CCF) has been granted leave to intervene in Newfoundland and Labrador’s constitutional challenge to the federal equalization formula, warning that the case could invite courts to overstep their role and interfere in fiscal decisions reserved for elected legislators.

Newfoundland claims the federal government’s current equalization formula violates section 36(2) of the Constitution Act, 1982, which states: “Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.”

The province claims the current formula is unconstitutional for a number of reasons, including that service delivery costs are higher for a sparsely-populated province and that the formula arbitrarily limits funding rather than ensuring provinces are “fully funded.” Newfoundland will seek a ruling that declares the current formula unconstitutional and requires Ottawa to provide additional payments.

The CCF intends to argue that Newfoundland’s claims under section 36(2) are not justiciable – in other words they are not the type of matter that is eligible to be considered by the court – and/or that, if the court were to find a violation, the only appropriate remedy would be a declaration rather than an order compelling a different allocation of funds.

Josh Dehaas, Counsel for the CCF, said the judiciary must not become a backdoor for political decisions about fiscal policy.

“While the Constitution commits the federal government to the equalization principle, it does not dictate how that must be achieved in practice,” said Dehaas. “That is left for the two levels of governments to negotiate between themselves.”

Christine Van Geyn, Litigation Director for the CCF, said the taxpaying public deserve accountability for how their money is being distributed.

“Taxpayers should not be an afterthought in this constitutional dispute,” said Van Geyn. “Newfoundland wants the courts to override Parliamentary decisions and force the federal government to spend more on that province,” she added. “If the court grants this request, it would set a damaging precedent that judges, not voters, decide who pays and who gets to benefit.”

The CCF is represented in this intervention by Pierre N. Gemson, Laura Thistle and Patrick J. Leger of Borden Ladner Gervais LLP.