The Court of Appeal for Ontario has released its appeal decision in Mathur v. Ontario involving a lawsuit by youth applicants challenging as inadequate Ontario's legislated targets and plans for reducing greenhouse gas (GHG) emissions. Although it allowed the appeal in favour of the applicants, the Court of Appeal declined to decide the constitutional issues, instead sending the matter back to the court of first instance to determine them afresh.
As we wrote last year, the youth applicants sought a court order requiring the Ontario government to set a "science-based [GHG] reduction target that is consistent with Ontario's share of the minimum level of [GHG] reductions necessary to limit global warming to below 1.5 [degree Celsius] above pre-industrial temperatures". The application judge held that the application was an impermissible "positive rights" case, and dismissed it. The Court of Appeal disagreed, holding that the "application does not seek to impose on Ontario any new positive obligations to combat climate change", since Ontario voluntarily assumed those obligations when it passed its climate change legislation. The Court of Appeal held that Ontario, through its legislation, was "obligated to produce a plan and a target that were Charter compliant" and sent the matter back to the court of first instance to address whether Ontario's legislated targets and plans were Charter compliant.
Background
The application concerned provincial legislation passed in 2016 that implemented a cap and trade program for GHG emissions, and subsequent legislation, the Cap and Trade Cancellation Act, 2018 (CTCA) passed by the then-newly elected Ontario provincial government. The CTCA repealed the 2016 legislation and stated that the new Ontario government would establish its own targets for the reduction of GHGs. The government later released a plan that set a more lenient target for GHG emission reductions than had been in effect under the 2016 legislation. In effect, the lawsuit sought to force the government to set more stringent targets for GHG emissions. To support their lawsuit, the applicants tendered expert evidence regarding the impacts of climate change and what they alleged was Canada's and Ontario's "fair share" of future carbon emissions. The application judge made numerous factual findings about climate change, including that because of it, the applicants and Ontarians in general "are experiencing an increased risk of death and an increased risk to the security of the person."
The Court of Appeal's Decision
The applicants alleged that the CTCA violated section 7 of the Charter, i.e., their right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice. They also alleged that the CTCA violated section 15 of the Charter, which provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law.
The Court of Appeal noted rulings from the Supreme Court of Canada that sections 7 and 15 of the Charter did not impose positive obligations on the state to ensure that each person enjoys life, liberty or security of the person or to remedy social inequality or enact remedial legislation. It held that, since the Ontario government chose to legislate regarding climate change through the CTCA (i.e., the CTCA stated that the Ontario government would establish GHG reduction targets), the court was obligated to decide whether that legislation violated the Charter. The Court of Appeal did not decide the Charter issues raised, but remitted the matter back to the court of first instance in recognition of that court's "institutional advantage in making the findings necessary to fairly determine whether the appellants' rights were breached".
One interesting question raised by the case is whether it would be Charter compliant for the Ontario government to amend the CTCA to remove the requirement for the Ontario government to establish any GHG reduction targets at all (i.e., to cancel the previous 2016 legislation without implementing any new requirement for GHG reduction in Ontario). The application judge had held that a "mere change in the law cannot be the basis for a Charter violation", which implied that it would be permissible for a government to do just that without violating the Charter. Despite the importance of this question, especially given that the federal government's "carbon tax" faces the prospect of being "axed" if it loses the next federal election, the Court of Appeal's decision left the question undecided.
Positive Rights
It can be difficult to grasp what might be a "positive right" under constitutional law. A review of another climate lawsuit brought by youth in Montana may be illustrative.
The Montana state government enacted provisions in Montana's State Energy Policy and the Montana Environmental Policy Act (MEPA) that forbade the state or its agents from considering the impacts of GHG emissions or climate change in their environmental reviews. In 2020, sixteen Montana youth challenged the constitutionality of those state provisions. The Montana government doubled down and passed in 2023 a clarification that explicitly prohibited Montana's agencies from considering "an evaluation of [GHG] emissions and corresponding impacts to the climate in the state or beyond the state's borders" in their MEPA reviews. In its 2023 decision in Held v. Montana, the Montana First Judicial District Court held that the legislation in question was unconstitutional, and permanently enjoined it from being enforced. The Montana court noted that Montana's constitution protected a right to a clean and healthy environment, and that the state must have discretion to act (i.e., by denying permits for fossil fuel activity) when the activities would result in GHG emissions that caused unconstitutional degradations of Montana's environment or infringe the rights of Montana's children or youth.
The Montana court did not instruct the Montana government positively on how it had to act to address climate change; rather, it prevented the government from deploying legislation that violated the constitutional rights of its citizens. In this way, Held v. Montana appears to be a familiar exercise of a court's unquestionable powers to invalidate legislation that infringes constitutional rights.
Closing Considerations
Despite numerous court rulings, no litigant in Canada has successfully challenged alleged government action or inaction on climate change-related matters. Nevertheless, litigants continue to look for avenues to impose responsibility for climate change on governments and require them to take robust action to mitigate GHG emissions. Goodmans will be watching with interest as these issues develop.
For more information concerning climate change or how it may impact businesses, please contact any member of our Litigation and Dispute Resolution or Environmental groups.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.