First justiciable climate claim in Ontario – Mathur v. Ontario
A recent Ontario court decision Mathur v. Ontario represents the first Charter challenge in Ontario against a government actor for actions taken related to climate change to reach a full hearing on its merits and to find that a climate lawsuit is justiciable. It confirms a precedent set in a previous British Columbia Supreme Court decision that defining specific state action may be key to overcoming the justiciability hurdle in a climate lawsuit.
The Cap and Trade Cancellation Act (CTCA) was enacted by Ontario in 2018. It repealed the Climate Change Mitigation and Low-carbon Economy Act, which had set out an emission reduction target of 37% below 2005 levels by 2030 in the province, and implemented a revised target of 30% emissions reduction below 2005 levels by 2030 (the Revised Target). In response, Ecojustice assisted seven youth environmental activists in filing an application against Ontario, contesting the constitutionality of the CTCA.
The applicants alleged that the Revised Target inadequately addressed the dangers posed by climate change, thereby infringing upon the rights of Ontario youth and future generations under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. In brief, the applicants argued that their section 7 right to life, liberty and security of the person was infringed because climate change poses dangerous and existential risks to the life and well-being of Ontarians. And they argued that their section 15 right to equality was infringed because the Revised Target creates a distinction based on the enumerated ground of age, as it imposes a heavier burden on younger Ontarians who will bear the brunt of climate change over time. Among other things, the applicants’ sought a declaration that the Revised Target is unconstitutional and an order requiring Ontario to establish an amended science-based emissions target in line with Ontario’s Paris Agreement commitments.
On April 15, 2020, Ontario filed a motion to dismiss the case on the grounds that the claim was not justiciable – in other words, a policy decision outside the purview of the court to decide. Ontario argued that the determination of emissions reductions was too political in nature to be properly adjudicated. Justice Brown denied the motion in 2020 ONSC 6918, finding that it was not plain and obvious that the Revised Target and the repeal of the Climate Change Mitigation and Low-carbon Economy Act would be unreviewable by a court. After clearing this procedural hurdle, the lawsuit was heard on its merits in September 2022.
As a preliminary matter, in order for a court to decide a case on its merits, the subject matter must be suitable for judicial determination – it must be justiciable. In other words, the court must have “the institutional capacity and legitimacy to adjudicate the matter”. If the question is purely political in nature and without a sufficient legal component, the judicial branch will not consider the issue, leaving it for the legislative or executive branch.
Justice Vermette confirmed that the Charter issues raised by the applicants were generally justiciable because the issues concerned specific state action and legislation: the Revised Target and ss. 3(1) and 16 of the CTCA. However, Justice Vermette found that there was one aspect of the applicants’ case which was not justiciable: what constitutes Canada’s and Ontario’s “fair” shares of the carbon budget. Justice Vermette found that such a multi-factored decision did not have a sufficient legal component to warrant the judicial intervention of an Ontario court, but the fact that the court was not in a position to determine Ontario’s exact share of the remaining carbon budget was not fatal to the applicants’ case.
However, like every other climate lawsuit brought in Canada to date, the applicants in Mathur were ultimately unsuccessful at convincing the court that the impugned government actions gave rise to violation of the sections 7 or 15 of the Charter.
In dismissing the applicants’ section 7 Charter challenge, Justice Vermette’s analysis largely rested on two findings. First, that the province’s Revised Target was not arbitrary. The CTCA had the objective of reducing GHG emissions and the Revised Target was rationally connected to that reduction objective. Second, that since the issue before the court was that the government “did not go far enough” in reducing GHG emissions, the impact of a less “aggressive” target could not be said to be so harmful to an individual’s life, liberty or security of person that it is “grossly disproportionate” to the purpose of the legislation.
As for section 15, although Justice Vermette acknowledged that young people are disproportionately impacted by climate change, she found that there was no nexus between the impugned government action and the disproportionate impact. Instead, the disproportionate impact is caused by climate change itself – not by the CTCA or its Revised Target.
Mathur builds on Canadian case law recognizing the catastrophic effects of climate change including the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, where the court stated that “climate change is an existential challenge”.
Nonetheless, this may not be the end for Mathur. Ecojustice has signaled that the applicants will be appealing the decision, joining other climate cases alleging violations of the Charter that are currently under appeal as well.
Read the full Update posted on June 5, 2022