In a significant step in the development on the frontier of climate-related litigation in Canada, Mathur v. Ontario1 ("Mathur Appeal"), the Court of Appeal for Ontario has clarified the analytical approach on which the sufficiency of a government's voluntarily-imposed statutory obligation to combat climate change can be challenged on the bases of sections 7 and 15 of the Canadian Charter of Rights and Freedoms.2 The Ontario Superior Court of Justice had previously dismissed the case, though it held that government responsibility for climate change is an issue that could be legitimately litigated, as we discussed in a previous post.
The Court of Appeal allowed the applicants' appeal, but remitted the case back to the Superior Court for a rehearing, and did not make a conclusion on the merits of the matter. Importantly, the Court clarified the analytical approach that should have been taken, namely that the underlying Charter challenge was not an assertion of positive rights, but rather concerned the actions of the government in respect of obligations that it had already voluntarily assumed.
The Mathur Appeal increases the likelihood of future climate change litigation against Canadian governments by enhancing the viability of rights-based arguments for reducing greenhouse gas ("GHG") emissions. While the increasing feasibility of climate change claims grounded in sections of the Charter—which only applies to government action—does not directly bear on the power to bring claims against corporations for their climate change impacts, an increased possibility of successful claims against governments for failing to implement effective and timely climate-related laws and policies will likely result in greater regulation and regulatory scrutiny for the private sector.
Background
In 2023, a group of seven young climate activists commenced a constitutional challenge against the Government of Ontario in response to legislation that the applicants argued substantially weakened GHG emissions reduction targets in the province.3 The applicants argued that Ontario's adoption of weaker GHG reduction targets would lead to climate catastrophe, violating the rights of Ontario youth and future generations under sections 7 (life, liberty and security of the person) and 15 (equality) of the Charter.4
The Superior Court interpreted the applicants' claim as a request for the recognition of positive rights—which would require proactive government intervention—rather than a complaint of government restriction. The Superior Court's primary basis for rejecting the claim was that the Charter does not place positive obligations on governments to set higher or more restrictive legislative targets.
In their appeal, the applicants sought an order to compel Ontario to adopt a science-based emissions reduction target and revise its climate change plan to align with international standards.
The Appeal Decision
At issue on appeal was whether the Superior Court had erred by:
- finding that the application sought to impose a positive obligation on Ontario; and
- failing to determine the constitutionality of Ontario's statutorily imposed obligation to combat climate change.
The Court of Appeal agreed with the applicants, finding that the Court of Justice erred in characterizing the applicants' claim as an attempt to impose a positive obligation on Ontario to combat climate change.5 The Court of Appeal also held that the Superior Court erred in declining to answer the question of whether Ontario's plan and target were Charter-compliant. By enacting its climate change legislation, the Cap and Trade Cancellation Act,6 the Court of Appeal found that Ontario had voluntarily assumed a statutory obligation to combat climate change. As such, the applicants were entitled to seek a declaration that Ontario's statutorily-imposed obligation to combat climate change was not constitutionally compliant.
The Court of Appeal rejected Ontario's position that it is beyond the competence of the courts to assess the sufficiency of climate policies, stating that "[t]he appellants are not challenging the inadequacy of the Target or Ontario's inaction, but rather argue the Target itself, which Ontario is statutorily obligated to make, commits Ontario to levels of greenhouse gas emissions that violate their Charter rights".7 The Court of Appeal agreed with the Superior Court that courts are capable of assessing the Charter compliance of legislation and state action "even when the issues are complex, contentious and laden with social values".8 The Court of Appeal also accepted that "[i]f a breach of the appellants' Charter rights is declared, there are clear international standards based on accepted scientific consensus that can inform what a constitutionally compliant Target and Plan should look like."9
The Court of Appeal remitted the question of whether Ontario's climate change policies violates the Charter back to the Superior Court to consider under the correct analytical framework. As such, it remains to be determined whether Ontario's climate policies breach sections 7 and 15 of the Charter. If this question is answered affirmatively on the Superior Court's rehearing, it would be the first time a court has held that a government's insufficient climate change policies amounted to a violation of the Charter.
Other Recent Decisions
Mathur is part of a growing body of Canadian case law addressing government responses to climate change as a litigable issue.10 In another recent appellate case, La Rose v. Canada11 ("La Rose Appeal"), the Federal Court of Appeal (the "FCA") addressed two cases,12 each of which had been struck by the Federal Court without leave to amend, on the basis that it was plain and obvious that the underlying claim had no reasonable prospect of success. In the La Rose Appeal, the FCA confirmed that climate-related matters are justiciable, regardless of whether they are "controversial" or "political."13 The FCA reasoned that political choices underlie all legislation but, once choices are made, legislation "is not immunized from Charter scrutiny."14 While the claims based on section 7 of the Charter were novel, the FCA highlighted that novelty alone does not doom an argument to failure.15 The FCA also noted that the right to a healthy and livable environment is a crucial issue that challenges and expands the scope of section 7 of the Charter, warranting careful consideration rather than early dismissal.16
The proliferation of climate litigation cases that challenge the ambition or implementation of a government's climate policies is not unique to Canada. For example, in the recent American case of Held v. Montana ("Held"), the First Montana Judicial District Court held that the plaintiffs' rights were violated by a provision of the Montana Environmental Policy Act prohibiting consideration of GHG emissions and corresponding climate change impacts in environmental reviews.17 An appeal of the Held case has been heard, and is pending a decision.18 Further afield, Europe's highest human rights court, the European Court of Human Rights, recently found that the Swiss government violated the rights of its citizens by failing to do enough to combat climate change. This finding, in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, is the first instance of a court finding that climate inaction violates human rights. Our analysis of the Verein decision can be found here.
The Future of Climate-Related Litigation
Within Canada, and globally, courts are increasingly willing to hear lawsuits against governments based on claims of climate inaction. The Mathur Appeal is likely a bellwether for a new wave of climate-related litigation against governments in Canada that will be heard on their merits, rather than dismissed at an early stage. This development opens up new avenues of litigation for environmental activists, and new risks for government and potentially the private sector, when developing strategies and policies on climate change. Time will tell how the substantive law will develop on apportionment of rights and responsibilities for the effects of climate change.
Footnotes
1 2024 ONCA 762 [Mathur Appeal].
2 Being the rights to life, liberty, security of the person (Section 7); and equality under the law without discrimination (Section 15).
3 Mathur v His Majesty the King in Right of Ontario, 2023 ONSC 2316. In 2018, Ontario enacted the Cap and Trade Cancellation Act, 2018, SO 2018, c 13, which repealed the Climate Change Mitigation and Low-carbon Economy Act, 2016, SO 2016, c 7, which had contained GHG emission reduction targets and required the government to set new reduction targets. The new reduction targets implemented by Ontario call for a 30% reduction of GHG emissions from 2005 levels by 2030, a much smaller reduction than prescribed under the Climate Change Mitigation and Low-carbon Economy Act; the Court found, as a factual determination, that these new targets fall short of the international scientific consensus of the reductions recommended to mitigate the most catastrophic effects of climate change.
4 Charter of Human Rights and Freedoms, CQLR c C-12.
5 Mathur Appeal, supra note 1 at para 5.
6 Cap and Trade Cancellation Act, 2018, SO 2018, c 13.
7 Mathur Appeal, supra note 1 at para 41.
8 Ibid at para 36.
9 Mathur Appeal, supra note 1 at para 70.
10 La Rose v Canada, 2023 FCA 241 [La Rose Appeal]; Mathur v Ontario, 2020 ONSC 6918; Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74.
11 La Rose Appeal, ibid.
12 La Rose v Canada, 2020 FC 1008; and Misdzi Yikh v. Canada, 2020 FC 1059.
13 La Rose Appeal, supra note 8 at para 32.
14 Ibid at para 33.
15 Ibid at para 109.
16 Ibid at para 109; also see para 52, in which the FCA noted, in respect of both of the cases under appeal, that "[t]he Federal Court characterized the remedies as overly prescriptive, but simultaneously as vague and devoid of meaning. These criticisms are, in part, well-deserved. But they do not justify a pre-emptive decision to foreclose the possibility of remedies tailored to the breach."
17 Held v. State, No. CDV-2020-307 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023).
18 See oral arguments online: (https://www.youtube.com/watch?v=_yfdS-DmXA8).
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