The Mathur case was brought by seven young climate rights activists who claimed that the greenhouse gas emission reduction targets in the Cap and Trade Cancellation Act, 2018 (“CTCA”) violated their Charter rights to equality, life, liberty and security of the person.
At the first level, the court dismissed the case. But in a great step forward for the development of climate justice, the Ontario Court of Appeal (“ONCA”) recently allowed an appeal from that decision.
In doing so, the ONCA made notable findings that support the development of rights-based climate jurisprudence in Canada, including that in enacting climate legislation and establishing greenhouse gas reduction targets, Ontario has a positive obligation to combat climate change in a manner that is compliant with the Charter.
Background
The CTCA was introduced in 2018 and repealed the Climate Change Mitigation and Low-carbon Economy Act, 2016 (“Climate Change Act”). The CTCA required the government to set new greenhouse gas reduction targets. The targets implemented by Ontario (the “Target”) under its Environmental Plan were a much smaller reduction than prescribed under the Climate Change Act.
The youth litigants argued that, by setting these new Targets, Ontario is authorizing a level of greenhouse gas emissions that poses dangerous and existential risks to the life and well-being of Ontarians and which will deprive their rights to life, liberty and security of the person under section 7 of the Charter.
The youth litigants also argued that the new Targets would disproportionately impact young people and violate their right to equality under section 15 of the Charter. They stated that the Targets discriminate against them based on their age because youth are particularly susceptible to the physical and mental health impacts of climate change and will bear the brunt of the impacts of climate change that will worsen over time.
At the first level of court, the application judge accepted unchallenged expert evidence that shows the significant and anticipated impacts of climate change in Canada and their disproportionate impacts on youth, as well as expert evidence finding that Ontario’s target under the CTCA falls short of the international scientific consensus of the reductions recommended to mitigate the most catastrophic effects of climate change.
However, the application judge dismissed the application. She concluded that 1) the deprivation to the rights of the youth litigants was not contrary to the principles of fundamental justice under section 7 of the Charter, and 2) the Charter did not impose a positive obligation on Ontario to take specific steps to combat climate change, characterizing the application as a “positive rights case.”
The ONCA Decision
The ONCA disagreed. There are a few notable findings from the decision:
First, the ONCA found that the application judge erred in her analytical approach, primarily in her finding that this was a positive rights case. The ONCA concluded that: “by enacting the CTCA, Ontario voluntarily assumed a positive statutory obligation to combat climate change and to produce the Plan and the Target for that purpose. Ontario was therefore obligated to produce a plan and a target that were Charter compliant.” (para. 49)
The Court found that the application judge’s incorrect positive rights framing “coloured her analysis” on whether the s. 7 deprivations were in accordance with the principles of fundamental justice and her causation analysis under s. 15 of the Charter. She ultimately “failed to address whether there was a link or nexus between the impact of the Target and the disproportionate impact based on a protected ground.” (para. 57)
Second, the Court rejected Ontario’s framing that the youth litigants were requesting that the court assume judicial control over environmental and climate policy. The ONCA found that the courts can exercise their discretion to make a declaration that Ontario violated the Charter in a manner that is respectful of the responsibilities of the executive and the courts.
The ONCA added that the youth litigants are not requesting the court to order Ontario to set a specific target and noted that “if 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.” (para. 70)
The Court allowed the appeal but declined to decide the application and make the orders sought by the appellants, noting that “courts of first instance have a significant institutional advantage in making the determinations necessary to a fair treatment of ss. 7 and 15 claims.” (para. 7) Instead, the Court ordered that the case be reheard at the first level.
The Court did, however, invite the youth litigants to take steps to amend their notice of application to incorporate the additional issues and evidence raised by the intervenors in the appeal, including impacts of the targets on Indigenous peoples, the public trust doctrine, and international environmental law.
Implications
This decision is significant as it is the first appellate decision in Canada that considers rights-based climate litigation claims on the merits. The decision provides insight on questions related to the positive and negative rights dichotomy and concerns that climate litigation claims seek judicial interference with the government’s climate policy decision making. It also contributes to a line of case law taking judicial notice of climate change and climate science and which refer to international climate standards.
The Mathur ONCA decision is a positive development in the rights-based climate jurisprudence in Canada. The decision is also consistent with emerging case law in other jurisdictions (see, for example, Held v Montana) that recognize the impacts of greenhouse gas emissions on the rights of children and youth to dignity, health and safety, and equal protection under the law.