The case had been brought by seven young activists who say that Ontario’s greenhouse gas (GHG) reduction target and its plans to reach that target, which committed Ontario to reduce GHG emissions by 30 per cent below 2005 levels by 2030, violates their right to life, liberty and security of the person and equality rights under ss. 7 and 15 of the Charter. They initially sought a court order requiring Ontario to set a science-based emissions reduction target and to revise its climate change plan in accordance with international standards.
In a ruling issued last year, Ontario Superior Court Justice Marie-Andrée Vermette dismissed the application, despite finding that Ontario’s target “falls severely short of the scientific consensus.” She determined that the plaintiffs’ claims would require the court to recognize that they had positive rights and interpreted their application as effectively seeking a more restrictive target, not the right to be free from state interference (Mathur v. His Majesty the King in Right of Ontario, 2023 ONSC 2316).
But a unanimous Ontario Court of Appeal has now sent the case back to the lower courts for determination, ruling Justice Vermette was wrong to classify the challenge as a positive rights case because it did not seek to impose any new positive obligations on Ontario to combat climate change (Mathur v. Ontario, 2024 ONCA 762).
By enacting the Cap and Trade Cancellation Act, which repealed previous climate legislation but still required the government to set new reduction targets, the court ruled the province assumed a positive statutory obligation to combat climate change and to produce a plan and target for that purpose.
“Ontario was, therefore, obligated to produce a plan and a target that were Charter compliant,” the court wrote in its Oct. 17 ruling. “The application judge did not address whether Ontario failed to produce a plan and a target that was Charter compliant in accordance with its statutory mandate.”
The court also noted the interveners in the case raised “relevant, important issues” that were not determined by the lower court but declined to grant the plaintiffs’ request for a declaration that Ontario’s targets violated their rights, holding it was not well placed to make such a determination.
“Courts of first instance have a significant institutional advantage in making the determinations necessary to a fair treatment of ss. 7 and 15 claims,” the court wrote. “Moreover, if the appellants wish to have the additional issues raised by the interveners adjudicated, they will have to obtain leave to amend their notice of application and the evidentiary record may have to be amplified.”
The court wrote that its ruling was “careful not to decide that question or otherwise limit the analysis to be undertaken, including the application of s. 1 of the Charter if pursued.”
“Given the seriousness of these matters, the additional issues raised, and the potential need for further evidence, it would not be in the interests of justice nor practically feasible for this court to take on the role of finder of fact and conduct the required analysis,” the court wrote. “We therefore remit the application for a new hearing before the same or another justice of the Superior Court.”
Environmental law charity Ecojustice, which represented the plaintiffs, said in a statement that the Court of Appeal’s decision shines a light directly on Ontario's inadequate target and confirms that Ontario must conduct its climate response in accordance with the high standards of the Charter.
“A new hearing has been ordered, and Ontario will have to answer for its record as a climate laggard,” the statement said. “The seven youth are optimistic and will push forward with the new hearing, with all the urgency the climate crisis demands.”
The statement said the court’s ruling “is an affirmation that the Charter applies to Ontario’s climate targets and confirms that the government’s actions are harming Ontarians.”
“With this decision, the Ontario Court of Appeal significantly advances the law in holding the Ontario government to account,” the statement said. “The decision puts governments across the country on notice that they cannot continue to fuel the climate crisis without risking similar lawsuits under the Charter.”
Jack Fazzari, press secretary and senior communications advisor for Ontario Attorney General Doug Downey, said in an email that the province is a leader in tackling climate change, with 86 per cent of Canada’s total emissions reductions attributed to its efforts.
“We are on track to meet emissions-reduction targets and will continue to build on our success by ensuring Ontario remains a global leader,” he said. “No decision from the Court of Appeal was made regarding the constitutionality of Ontario’s climate change plan or target. The matter was sent back to the superior court for a new hearing."
Dayna Scott, a professor at Osgoode Hall Law School and the York University Faculty of Environmental and Urban Change, said that courts will generally not tell legislatures they must make rules, commitments or spend money — but here the Ontario Court of Appeal “reminds us that if they do make rules, they must comply with the Charter.”
“So, if the target is now producing disproportionate adverse impacts on young people, which the application judge seems to have accepted, the question of whether there is a Charter violation must be resolved,” she said. “The court is primarily concerned that, because of an analytical error the application judge made, her later findings are tainted. But appeal courts cannot be finders of fact, and there may be a need for new evidence, so the court is sending this back to the initial judge to decide again, in line with their ruling.”
But the decision should foster some optimism that courts may be more willing to wade into climate change matters and demand some accountability from governments.
“The climate crisis is urgent and real for Canadians,” she said. “This ruling means we have to wait longer now for a resolution of this claim, as the applicants are going back to square one in a way, but the issues are so important, it's best to have them decided carefully and correctly.”
Chris Tollefson, executive director of the Pacific Centre for Environmental Law and Litigation and principal at Tollefson Law Corporation, said the decision — like the Federal Court of Appeal’s ruling in La Rose v. Her Majesty the Queen, 2023 FCA 241, which gave the go-ahead to another climate challenge — emphasizes that governmental action on climate change must comply with the Charter, even though the issues in play may be complex, contentious or value-laden.
“It also clarifies that where government chooses to take action to combat a social ill or concern, its actions must be Charter compliant — it cannot avoid accountability on the basis that the Charter claimant is asserting what Ontario Court of Appeal calls a ‘freestanding’ positive right,” said Tollefson, who also teaches at the University of Victoria faculty of law. “These young people resisted the application judge’s characterization of their claim as asserting positive rights. The Court of Appeal agreed that this characterization was incorrect and that it led the applications judge astray.”
The decision will be a strong message to governments that the legislative schemes and other actions they take on climate change must comply with the Charter and will be reviewable for Charter compliance, said Tollefson.
“And one aspect of the Court of Appeal’s ruling echoes views expressed by the Federal Court of Appeal in La Rose — trial courts will always be in the best position to determine what remedies, if any, should flow, particularly in novel cases such as these, and particularly where the remedies sought are designed to respect the division of labour between the courts and legislatures,” he said.
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