In a case working through Canadian courts, the applicants are challenging Ontario’s current greenhouse gas emissions reduction target, developed after Premier Doug Ford’s decision to cancel the province’s cap and trade program. Their basic argument is that the current target, which deviates wildly from the scientific consensus regarding the reductions necessary to avoid dangerous climate change, infringes on their Charter rights.Matthew Brown
Martin Olszynski is an associate professor and Chair in Energy, Resources and Sustainability at the University of Calgary Faculty of Law.
Last month, the Ontario Court of Appeal released its decision in Mathur v. Ontario, reversing a trial court decision that Ontario won last year. Mathur is one of several Charter-based climate lawsuits (lawsuits that rely on Charter rights to challenge governments’ climate laws and policies) that are slowly but surely making their way through Canadian courts. It’s also the most significant one to date on several fronts, and could fundamentally change the way Canadian courts, and in turn Canadian politicians, respond to the climate crisis.
In Mathur, the applicants are challenging Ontario’s current greenhouse gas emissions reduction target, which was developed shortly after Premier Doug Ford’s controversial decision to cancel Ontario’s cap and trade program. Ranging from teenagers to young adults and representing communities including Toronto, Sudbury and three Indigenous Nations, their basic argument is that the current target, which deviates wildly from the scientific consensus regarding the reductions necessary to avoid dangerous climate change, infringes on their Section 7 and 15 Charter rights.
By selecting a target disconnected from the scientific consensus, the group argues that Ontario is contributing to an increased risk of death and an increased risk to their security, contrary to Section 7 of the Charter. The group also argues that such a target discriminates against them as youth and Indigenous persons who will suffer disproportionately from climate change, contrary to Section 15.
Ontario unsuccessfully tried to have the case thrown out in 2020 and it went to trial in 2022. Importantly, neither at trial nor before the Court of Appeal did Ontario ever challenge the basic facts regarding human-caused climate change and its risks to human health and well-being. Rather, Ontario argued that its climate laws and policies do not engage the Charter and that, from a global perspective, its GHG emissions are insignificant anyway.
In its 2023 decision, the Ontario Superior Court of Justice ruled in the province’s favour. The plaintiffs then raised the matter to the Ontario Court of Appeal.
The key to understanding the Superior Court’s decisions, as well as the Ontario Court of Appeal’s reversal, is that the Charter has generally been understood as protecting what are described as “negative rights,” which is to say protecting Canadians from state action that interferes with rights and freedoms (for example, a law that restricts a person’s right to protest). But the Superior Court concluded that the applicants were not seeking to be free from state action but rather that the relevant state action didn’t go far enough. It viewed this as a “positive rights” claim: a claim to make the government do something it has not already undertaken, a type of claim that has not been generally recognized by Canadian courts to date.
In a decision that is likely to influence all current and future Charter-based climate lawsuits (both the federal and Saskatchewan governments are facing their own lawsuits), the Ontario Court of Appeal disagreed. It held that this wasn’t a “positive rights” claim but rather and more simply a situation where Ontario had assumed a legal obligation to prepare a GHG emissions reduction target. Subsequently, and like all laws and state action in Canada, this target must be constitutionally compliant, which includes the Charter. The Court of Appeal then sent the matter back to the trial level for a re-hearing with this corrected framing.
The potential reach of this decision becomes clear when you realize that every jurisdiction in Canada, from coast to coast to coast, has passed some kind of climate law or regulation and that, as with Ontario’s target, most if not all of these regimes allow levels of GHG emissions that also deviate significantly from the international scientific consensus.
The Court of Appeal also took the time to address Ontario’s argument that the courts are ill-equipped to assume control of climate and energy policy. The Court of Appeal rejected this characterization: It is well within the courts’ role to advise governments on their Charter obligations, and they can do so without telling them exactly how they must meet those obligations.
This, then, is the peril (for politicians) and the promise (for the rest of us) of Charter-based climate lawsuits: They force governments to put their money where their mouths are – to lead evidence and justify their policies in an open, objective and impartial forum. In this age of disinformation, that’s something that we all benefit from.