The Ontario Court of Appeal has released an important decision in Mathur v. Ontario, 2024 ONCA 762, the first Canadian case to substantively consider the intersection of climate change and Charter rights.
In 2018, Ontario enacted the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13, which required the government to set a greenhouse gas emission reduction target. The target implemented by the government called for a 30% reduction of greenhouse gas emissions from 2005 levels by 2030. Seven Ontario youth then applied for a declaration of unconstitutionality, arguing that the government’s target violated their rights under the Charter, and asking that the target be replaced with one that is constitutionally compliant. The Ontario Superior Court of Justice dismissed the application, finding that the applicants sought to impose positive obligations on the government in respect of climate change.
The applicants appealed to the Ontario Court of Appeal, supported by multiple intervening parties. In allowing the appeal, the Court of Appeal concluded that the Superior Court was wrong to treat the application as a “positive rights case”. It found that the application did not seek to impose “new positive obligations” on the government because the government had voluntarily assumed certain obligations. In the words of the Court of Appeal, there was “no question” that Ontario had “assumed a statutory obligation to do something about climate change,” and also to enact a target that would “do something about climate change.”
The applicants’ constitutional challenge was based on sections 7 and 15 of the Charter, which protect, respectively, the right to “life, liberty, and security of the person” in accordance with the principles of “fundamental justice” and the right to equal protection under the law.
With respect to section 7, the Court of Appeal agreed with the application judge’s finding that it was “indisputable” that Ontarians are experiencing an increased risk of death and security of the person as a result of climate change — but found that the application judge had erred in her framing of the question before her. According to the Court of Appeal, the question is not whether Ontario has gone “far enough” in its greenhouse gas reduction target in the absence of a positive obligation, but rather whether, given Ontario’s voluntary assumption of a statutory obligation to combat climate change, the target was Charter compliant. The Court of Appeal found that the application judge had erred similarly in how she framed the question before her in respect of the section 15 analysis.
On appeal, Ontario submitted that the remedy sought by the applicants would require the courts to assume judicial control over environmental and climate policy, and that it was “impossible to order” the government to enact a target consistent with “imprecise” scientific standards. The Court of Appeal disagreed, holding that “[t]he unchallenged international standards and scientific consensus about global warming and climate change [were] not imprecise,” and that “clear international standards” based on “accepted scientific consensus” could inform a constitutionally compliant target.
Although it allowed the appeal, the Court of Appeal declined to determine the issue of constitutionality, and remitted the application for another hearing by the Superior Court. In so doing, the Court of Appeal recognized the important arguments raised by the interveners, and the potential need for amplification of the evidentiary record to fully address all relevant issues.
