Climate Litigation in Canada – An Update

24 Nov Climate Litigation in Canada – An Update

Climate Litigation in Canada – An Update

 

Earlier this month, we released a blog post on climate litigation in Canada and around the world which you can check out here: Climate Litigation in Canada and beyond – Where are we in 2020? Just days after the publication of that post, another climate decision was released, this time a decision out of the Ontario Superior Court of Justice and a win for the climate applicants. This blog post will provide a summary of that decision and will demonstrate why this is a major breakthrough for climate cases – despite the potential for future roadblocks.

The decision, Mathur v Ontario was released on November 12, 2020, when the Ontario Superior Court of Justice dismissed the Government of Ontario’s motion to strike the Applicants’ original claim pursuant to Rule 21 of the Ontario Rules of Civil Procedure, on the ground that it had no reasonable prospect of success.[1]  Notably, this is still a preliminary action and therefore all facts alleged are assumed to be true and may still fail at a full hearing.

The Applicants (“Mathur”) represented by Ecojustice, are a group of seven young people from Ontario who opposed the Ford government’s roll-back of Ontario’s climate targets.[2] Their action was initiated when the Ontario government passed the Cap and Trade Cancellation Act.[3] This Act authorized the Minister to create a climate change plan (the “Plan”) and set targets for the reduction of GHG emissions in Ontario (the “Target”).[4] The issue raised by Mathur in their initial claim was that this new target was weaker than the previous one, thereby allowing more GHG emissions. For reference, the previous target required a 37% reduction from 1990 emissions levels by 2030, while the new target requires only a 30% reduction in that same time frame.[5]

In light of these changes, Mathur seeks “declaratory and mandatory orders relating to Ontario’s Target and Plan for the reduction of greenhouse gas emissions in the province by the year 2030.”[6] Specifically, Mathur noted that the change to the Target represented a 15% decrease compared to the previous target.[7]

The relief sought includes declarations that:[8]

• The new Target violates the rights of Ontario youth and future generations under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”);
• The new Target violates the unwritten constitutional principle that governments are prohibited from engaging in conduct that will, or reasonably could be expected to, result in the future harm, suffering, or death of a significant number of its own citizens;
• Section 7 of the Charter includes the right to a stable climate system; and
• Sections 3(1) and/or 16 of the Cap and Trade Cancellation Act, which repealed the previous Climate Change Act and allowed for the imposition of more lenient targets, violate sections 7 and 15 of the Charter.

Mathur also requested an order that Ontario set a science-based GHG reduction target consistent with Ontario’s share of the minimum level of GHG reductions necessary to limit global warming below 1.5 degrees Celsius above pre-industrial temperatures or, in the alternative, well below 2 degrees Celsius and an order directing Ontario to revise its Plan.[9]

In response to the initial Mathur claim, the Government of Ontario (“Ontario”) sought determination of an issue before trial on the grounds that the Mathur pleading discloses no cause of action and should be struck in its entirety.[10] This decision deals with that pre-trial application.

In responding to Ontario’s interlocutory application, the Court set out a number of issues to be considered, including: [11]

• Are the Target and Plan reviewable by the Courts?
• Is the matter justiciable? More specifically, do the Charter claims have a reasonable prospect of success?
• Does the Application rely on a positive obligation on the government?
• Does Mathur have standing on behalf of future generations?
• What remedies are available for Mathur? and
• Is this the correct venue for the matter to be heard?

The following sections will look at each of these issues in turn.

 

Are the Target and Plan reviewable by the Courts?

The first issue that the Court considered was whether the Target and Plan were reviewable by the Court system. In their submission, Ontario argued that the Target and Plan set by the provincial government and published by the Ministry of the Environment, Conservation and Parks are “an expression of the provincial government’s intentions” rather than a “legal instrument” and therefore do not have legal effect on anyone and are not reviewable by the Courts.[12] Mathur disagreed, submitting that the Plan is “law” and that the Cap and Trade Cancellation Act requires the government to set a Target.[13] They go on, citing examples from other decisions wherein Ontario relied on the Plan’s existence for the purpose of “justifying its conduct” – most notably during the Carbon Pricing Reference.[14]

In considering both perspectives, the Court found that determination of whether the Target is law or not is unnecessary at this stage of the process, stating that regardless of whether it is properly ‘law’, it cannot escape judicial review.[15] Specifically, the Court found that Cabinet decisions are reviewable by the Court, as quasi-legislation or ‘soft law’, or as a reflection of the Province’s intention, an intention which guides policy-making.[16] In the end, the Court held that regardless of whether the Target and Plan are ‘law’, they are reviewable by the courts and proceeded with the remaining issues.[17]

 

Is the matter justiciable? More specifically, do the Charter claims have a reasonable prospect of success?

In another attempt to have the matter struck, Ontario argued that the allegations about the future harmful effects of climate change put forward by Mathur are “manifestly incapable of being proven” in Court.[18] To counter this argument, Mathur submitted that if the Target cannot be subject to scrutiny until after harm has occurred, it would be too late to prevent the alleged harms.[19] Mathur went on to submit that Charter claims must be forward looking and that legislation or government action can be considered unconstitutional even if the alleged harms have not yet occurred.[20]

The Court, in its analysis, did not determine whether the claims themselves are specifically provable but instead found that these issues are best determined by the trier of fact.[21] In coming to this conclusion, the Court relied on evidence from the Ontario Court of Appeal’s decision in the Carbon Tax Reference, citing a list of findings and standards that can be projected or predicted with scientific accuracy regarding the future of climate change.[22] The Court pointed out that some future events are predictable. In particular, the Court highlighted research from the Intergovernmental Panel on Climate Change for more information regarding the impacts of climate change and any potential future risks and possible responses.[23]

In determining the justiciability of the claims raised by Mathur, the Court also distinguished the facts at hand from the federal court decision released just days before in the case of La Rose v Canada (you can read more about this decision in our last blog post Climate Litigation in Canada and beyond – Where are we in 2020?).[24] Particularly, the Court held that while the plaintiffs in La Rose focused on Canada’s “Impugned Conduct”, Mathur focused on specific decisions made by the government of Ontario. [25] It is interesting to note that in the La Rose case, the court stated “when policy choices are translated into law or state action, that resulting law or state action must not infringe the constitutional rights of the Plaintiffs.”[26] In the case at hand the Court found that Ontario chose to translate policy choices into law or state action, which means they now have a responsibility to ensure that these decisions do not infringe upon the constitutional rights of Ontario residents.[27]

With this consideration in mind, the Court moved on to Mathur’s specific arguments regarding their section 7 and 15 Charter rights. Section 7 is the right to life, liberty and security of the person and section 15 guarantees that every individual is equal under the law and receives equal protection and benefits therein.[28]

Mathur submitted that there are myriad ways that future negative effects of climate change infringe upon their section 7 rights and the section 7 rights of future generations.[29] The Court considered whether this was a legitimate section 7 claim by highlighting the history of section 7 jurisprudence and the ways that definitions of “life, liberty and security of the person” have been expanded. For example, originally, section 7 arguments were focused on challenges against the penal system, while more recent cases, including the Supreme Court of Canada decisions in Chaoulli v Quebec (which found that the prohibition on private health insurance in the province of Quebec, leading to delays in receiving necessary medical care and surgery infringed upon the Plaintiff’s section 7 rights) and Carter v Canada (which found that sections 241(b) and 14 of the Criminal Code infringe upon the Plaintiff’s section 7 rights to the extent that they prohibit physician assisted death for a competent adult person under certain conditions) expanded the right into matters of social policy.[30]

The Court cited the Federal Court of Appeal in the decision of Kreishan v Canada in which the Federal Court stated “I am cognizant of the fact that section 7 is not frozen in time, nor is its content exhaustively defined, and that it may, some day, evolve to encompass positive obligations – possibly in the domain of social, economic, health or climate rights.”[31] The Court in Mathur relied on these arguments and a history of expanding section 7 jurisprudence to find that there was not sufficient evidence to suggest that Mathur will not be able to succeed at trial, thereby allowing the issue to proceed.[32]

From there, the Court moved on to an analysis of section 15, citing the case of Kahkewistahaw First Nation v Taypotat in which the Supreme Court of Canada set out a two-part test to the equality analysis.[33] The first question in this test asks whether the impugned law creates a distinction based on an enumerated or analogous ground and second, if it does, does it fail to respond to the actual capacities and needs of the members of the group, thereby reinforcing or exacerbating disadvantage?[34] In this case, the section 15 claim relies on age. Mathur submits that their age is relevant in two ways. The first is that the majority of the applicants are unable to vote and therefore cannot get their voice heard through the democratic process. The second is that due to their young age, they will be disproportionately affected by climate change. While the Court acknowledged both of these claims, it chose to focus more on the idea that the impacts of climate change will exacerbate Mathur’s pre-existing vulnerabilities and disabilities.[35]

While the Court acknowledged that it is unclear at this stage whether Mathur would make it past stage two of the section 15 test, it also noted that any prospect of success is sufficient to allow the claim to continue.[36] The Court found that “the novelty of the s.15 claim will not prevent the claims from proceeding unless it can be established that the claim is unsustainable, which is not the case here.”[37]

 

Does the Application rely on a positive obligation on the government?

One of the most interesting issues dealt with in this decision is that of whether the Application imposes a positive constitutional obligation on the provincial government to redress future harm. Ontario argued that it does and that the Application must fail because it is premised on a “positive obligation” which is not a requirement under the Constitution.[38] They submitted that Mathur is essentially asking for “a Plan and Target that has a different number” therefore requiring the government of Ontario take positive steps to implement this number.[39] Ontario argued that the Charter does not impose positive obligations on the state to address harm or prevent future harms and that Ontario did not have a constitutional obligation to do so in the first place.[40]

Mathur specifically refuted this framing, arguing that they are not imposing a positive obligation on the government but instead that the government is causing harm by lowering the GHG emissions target in Ontario and in doing so, creating the GHGs that are the cause of the alleged Charter violations.[41] They allege that they are not setting out a specific path that the government should take to achieve the appropriate level of GHG emissions but rather calling on the government to do so. They argued that if they had set out a specific path, that may be considered an example of a positive obligation but that this is not the case.[42] Alternatively, Mathur argued that if it is found to be a positive obligation, it is a ‘special circumstance’ pursuant to the Supreme Court of Canada decision in Gosselin v Quebec and therefore valid.[43] They argued that because this case deals with the effects of climate change, it is unlike other cases and the stakes are higher.[44]

The Court found that the assumption that the province is not constitutionally obliged to take positive steps to redress the future harms of climate change cannot be adjudicated at this stage. They agreed that under specific circumstances, a positive obligation may be found but found that it is not yet clear if Mathur are imposing a positive obligation on the Ontario government. This analysis relied largely on the fact that a new and lower Target was set by the government of Ontario and that this target is included in the Application.[45]

 

Does Mathur have standing on behalf of future generations?

There is no dispute that Mathur has public interest standing but, in their argument, Ontario does raise an issue with whether this standing applies to future generations.[46]

Ontario submits that Mathur’s assertion that they have standing on behalf of those “who do not exist yet” is too broad in scope and is therefore inapplicable.[47] Mathur counters this, claiming that while this may be a novel issue, it is reasonable and, regardless, should be determined at a hearing.[48] Particularly, Mathur suggests that due to the impacts of climate change, if the matter was left to these future generations to argue on their own, it would be too late.[49]

The Court agreed in part with Mathur, holding that it is too early to determine if they should be granted this expanded standing, leaving it to a future hearing and finding that Mathur has met the test for standing on behalf of future generations at a preliminary level.[50]

 

What remedies are available for Mathur?

In their submission, Ontario took issue with two of Mathur’s relief sought – specifically the request for orders requiring Ontario to set a “science-based GHG reduction target” in order to ensure a right to a “stable climate system” and a “sustainable future.”[51] However, the Court found that these were manageable forms of relief, stating that Courts have the option to limit an awarded remedy to a declaration while leaving the next steps up to the government.[52]

Again, the Court determined that the details of awarding such a remedy are best left to a hearing.[53]

 

Is this the correct venue for the matter to be heard?

The final issue to be determined is venue. Ontario submitted that it is an application for judicial review and thus should be heard at the Divisional Court while Mathur submitted that it is a Charter challenge and is rightfully located at the Superior Court.[54]

The Court sided with Mathur, finding that the matter is a Charter challenge, noting that Mathur is seeking relief under section 52(1) of the Constitution and section 24(1) of the Charter and; therefore, that the Superior Court of Justice is indeed the proper venue.[55]

 

The Court’s Conclusion

Despite the numerous issues raised, the Court found enough merit at each stage of the matter to allow the Application to continue to a hearing.[56] Although this is a preliminary action, it is a major breakthrough for Canadian climate litigation. Notwithstanding the potential to be overturned on appeal, this decision means that we may finally get a climate change decision on the merits of the claim – so far climate cases in Canada have not proceeded beyond preliminary, procedural issues.

Further, if a future Court ultimately finds that there is a positive obligation to address climate change in order to avoid violating charter rights, it would be a major shift in how governments can be held accountable for these rights. It is not clear; however, whether this particular issue will be litigated, as the Court could instead focus on the new Target and avoid resolving the issue of positive obligations. Regardless of the minutiae of each issue in this preliminary decision, this is a success for climate litigation in Canada particularly as it was released so soon after the disappointing decision in La Rose. As Ecojustice, the lawyers for the case aptly stated, “Mathur v Ontario is the only time a Canadian Court has recognized that the harms caused by climate change can engage our Charter protected rights to life, liberty and security of the person.”[57]

This case also highlights the principle of non-regression. Non-regression embraces the idea that existing environmental laws form a baseline standard of environmental protection which should not be reduced by later decisions or amendments.[58] The principle does not prohibit any changes to the law but instead requires changes to ensure the same level of environmental protection.[59] In the Mathur v Ontario case, the principle of non-regression is relevant to the lower GHG emissions target implemented by the Ontario government. If the principle of non-regression was adopted in this case, the lower target would be unacceptable because it sets a less stringent approach to GHGs. If the principle of non-regression was recognized by the Courts it would certainly impact future decisions.

It will also be noteworthy to consider whether the new federal Canadian Net-Zero Emissions Accountability Act, which sets targets for GHG emissions across the country, will impact how future climate litigation cases are pursued.

We will continue to update this blog with this case as it makes its way through the courts.

 

[1] Mathur v Ontario, 2020 ONSC 6918 at para 1.

[2] Ecojustice, “#GenClimateAction: Mathur et. Al. v Her Majesty in Right of Ontario” online: https://ecojustice.ca/case/genclimateaction-mathur-et-al-v-her-majesty-in-right-of-ontario/.

[3] Cap and Trade Cancellation Act, 2018, SO 2018, c 13.

[4] Cap and Trade Cancellation Act, 2018, SO 2018, c 13, ss 3 & 4.

[5] Government of Ontario, “Archived – Climate Change Action Plan” (2017) online: https://www.ontario.ca/page/climate-change-action-plan; Government of Ontario, “Climate change” (24 October 2019) online: https://www.ontario.ca/page/climate-change.

[6] Mathur v Ontario, 2020 ONSC 6918 at para 2.

[7] Mathur v Ontario, 2020 ONSC 6918 at para 29.

[8] Mathur v Ontario, 2020 ONSC 6918 at para 31.

[9] Mathur v Ontario, 2020 ONSC 6918 at para 31.

[10] Mathur v Ontario, 2020 ONSC 6918 at para 32.

[11] Mathur v Ontario, 2020 ONSC 6918 at paras 43 & 44.

[12] Mathur v Ontario, 2020 ONSC 6918 at paras 48 & 50.

[13] Mathur v Ontario, 2020 ONSC 6918 at para 52.

[14] Mathur v Ontario, 2020 ONSC 6918 at para 53.

[15] Mathur v Ontario, 2020 ONSC 6918 at para 60.

[16] Mathur v Ontario, 2020 ONSC 6918 at paras 62-65.

[17] Mathur v Ontario, 2020 ONSC 6918 at paras 70-71.

[18] Mathur v Ontario, 2020 ONSC 6918 at paras 86 & 89.

[19] Mathur v Ontario, 2020 ONSC 6918 at para 92.

[20] Mathur v Ontario, 2020 ONSC 6918 at para 92

[21] Mathur v Ontario, 2020 ONSC 6918 at para 95.

[22] Mathur v Ontario, 2020 ONSC 6918 at para 97.

[23] Mathur v Ontario, 2020 ONSC 6918 at para 101.

[24] La Rose v Canada, 2020 FC 1008.

[25] Mathur v Ontario, 2020 ONSC 6918 at para 111.

[26] La Rose v Canada, 2020 FC 1008 at para 45.

[27] Mathur v Ontario, 2020 ONSC 6918 at para 226.

[28] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss 7 & 15.

[29] Mathur v Ontario, 2020 ONSC 6918 at para 142.

[30] Mathur v Ontario, 2020 ONSC 6918 at para 148.

[31] Mathur v Ontario, 2020 ONSC 6918 at para 165.

[32] Mathur v Ontario, 2020 ONSC 6918 at para 166.

[33] Kahkewistahaw First Nation v Taypotat, 2015 SCC 30.

[34] Mathur v Ontario, 2020 ONSC 6918 at para 176.

[35] Mathur v Ontario, 2020 ONSC 6918 at para 178.

[36] Mathur v Ontario, 2020 ONSC 6918 at paras 179 & 186.

[37] Mathur v Ontario, 2020 ONSC 6918 at para 189.

[38] Mathur v Ontario, 2020 ONSC 6918 at para 190.

[39] Mathur v Ontario, 2020 ONSC 6918 at para 196.

[40] Mathur v Ontario, 2020 ONSC 6918 at para 197.

[41] Mathur v Ontario, 2020 ONSC 6918 at para 194.

[42] Mathur v Ontario, 2020 ONSC 6918 at para 194.

[43] Gosselin v Quebec (Attorney General), 2002 SCC 84. See paragraph 83 of this case which states that “a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances.”

[44] Mathur v Ontario, 2020 ONSC 6918 at para 195.

[45] Mathur v Ontario, 2020 ONSC 6918 at para 225.

[46] Mathur v Ontario, 2020 ONSC 6918 at para 244.

[47] Mathur v Ontario, 2020 ONSC 6918 at paras 245.

[48] Mathur v Ontario, 2020 ONSC 6918 at paras 245 & 247.

[49] Mathur v Ontario, 2020 ONSC 6918 at para 247.

[50] Mathur v Ontario, 2020 ONSC 6918 at paras 249 & 250.

[51] Mathur v Ontario, 2020 ONSC 6918 at para 254.

[52] Mathur v Ontario, 2020 ONSC 6918 at para 257.

[53] Mathur v Ontario, 2020 ONSC 6918 at para 259.

[54] Mathur v Ontario, 2020 ONSC 6918 at para 260.

[55] Mathur v Ontario, 2020 ONSC 6918 at paras 261 & 265.

[56] Mathur v Ontario, 2020 ONSC 6918 at para 266.

[57] Devon Page, “Victory! Youth-led climate case prevails over government attack” (13 November 2020) ecojustice online: https://ecojustice.ca/victory-youth-led-climate-case-prevails-over-government-attack/.

[58] Brenda Heelan Powell, “Environmental Rights in Alberta: An Annotated Environmental Bill of Rights for Alberta” (1 March 2018) Environmental Law Centre at 12; David Boyd, “Elements of an Effective Environmental Bill of Rights” (2015) 27(3) J. Env. L. & Prac. 201; Linda Collins and David Boyd, “Non-regression and the Charter Right to a Healthy Environment” (2016) 29 J. Env. L. & Prac. 285.

[59] Brenda Heelan Powell, “Environmental Rights in Alberta: An Annotated Environmental Bill of Rights for Alberta” (1 March 2018) Environmental Law Centre at 13.

 

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