Ontario Court finds Climate Litigation Fails on Charter Arguments

Ontario Court finds Climate Litigation Fails on Charter Arguments

In April 2023, the Ontario Superior Court of Justice released a decision in one of the first ever climate litigation trials in Canada – Mathur v Ontario. [1] This was the culmination of years long litigation, hard won Court decisions, and a group of determined youth; however, for those hoping that this type of litigation would result in ambitious climate action will be disappointed by the constraints of the limits to Charter rights.[2]

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.[3] Their action was initiated when the Ontario government passed the Cap and Trade Cancellation Act (“CTCA”).[4] This Act authorized the Minister to create a climate change plan and set targets for the reduction of greenhouse gas (“GHG) emissions in Ontario (the “Target”) signalling a change from the previous legislation.[5] 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.[6] This is also less stringent than the federal GHG reduction targets of 40-45% below 2005 levels by 2030.[7]

In light of these changes, Mathur sought “declaratory and mandatory orders relating to Ontario’s Target for the reduction of greenhouse gas emissions in the province by the year 2030.[8] Specifically, Mathur sought the following relief:[9]

1. a declaration that the Target is unconstitutional and violates the rights of Ontario’s youth and future generations under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (“Charter”), in a manner that cannot be saved under section 1 of the Charter;
2. a declaration that sections 3(1) and/or 16 of the CTCA are unconstitutional and violate sections 7 and 15 of the Charter, in a manner that cannot be saved under s 1 of the Charter, to the extent that they allow for the imposition of the Target without mandating that it be set with regard to the Paris Standard or any kind of science-based process;
3. an order directing Ontario to set a science-based target for the allowable levels of GHG under section 3(1) of the CTCA that is consistent with Ontario’s share of the minimum level of GHG reductions necessary to limit climate change to the Paris Standard; and
4. an order directing Ontario to revise its climate change plan under section 4(1) of the CTCA once it has set the Revised Target.

Earlier in this litigation, the Respondent (“Ontario”) brought a motion to strike the Application under Rule 21 of the Rules of Civil Procedure; however, this motion was dismissed in 2020 moving the matter to a hearing on the merits.[10]

In this hearing, the Court confirmed again that the issues brought by the Applicants were justiciable. However, after a review of the evidence, the Court concluded that any deprivation under section 7 was not found to be contrary to principles of fundamental justice and, as such, it was found that no violation of section 7 had occurred. In considering this, the Court raised the issue of positive obligations under section 7 finding that there was no general positive obligation but did not decide whether a positive obligation should be imposed in this particular case. Similarly, with regard to the section 15 claim, the Court found that the age distinction raised in the section 15 claim was more properly characterized as a temporal distinction and therefore no violation of section 15 had occurred. Below, we explain how the Court came to these conclusions.

The Court’s Analysis

The Court began their analysis of this case with a review of the evidence of climate change. Specifically, they cited directly from both the Supreme Court of Canada (“SCC”) decision in Reference re Greenhouse Gas Pollution Pricing Act and the Intergovernmental Panel on Climate Change.[11] They also cited directly from Mathur’s materials regarding the impacts of climate change in the province – most of which went unchallenged by Ontario.[12] Perhaps most relevant to this decision was the citation of expert evidence brought again by Mathur and which demonstrated that climate change has disproportionate impacts on young people and Indigenous peoples.[13]These facts are not in dispute. As such, they moved on to the main issues.

Justiciability

The first issue was that of justiciability. Ontario argued that Mathur’s claim was non-justiciable and should be dismissed outright. They distinguished these arguments from the previous failed motion to strike, arguing that in that instance, the motions judge “found only that it was not plain and obvious” that the claim was not justiciable and that at this stage the standard should be higher.[14] Mathur disagreed, arguing that “recognizing constitutional violations and instituting a fair process to remedy those violations is well within the Court’s core capacities.”[15]

The Court determined the matter to be justiciable and from there moved on to the substantive arguments.[16]Specifically, the Court found that the “[a]pplicants are challenging specific state action and legislation” and the Constitution requires that “courts review legislation and state action for Charter compliance when citizens challenge them, even when the issues are complex, contentious and laden with social values.”[17]

Section 7

The first substantive issue was the argument that the Target “will lead to section 7 deprivations.”[18] Mathur cited evidence, including from the SCC that climate change poses dangerous risks to life and to the well-being of Ontarians and, that this is sufficient to engage the protected grounds under section 7 of the Charter.[19] They argued that “Ontario is authorizing, incentivizing, facilitating, and creating the very level of dangerous GHGs that will lead to the catastrophic consequences of climate change for Ontarians” and that it is sufficient that Ontario is but one contributor to these GHG emissions.[20]

While Ontario did not contest the fact of anthropogenic climate change, they argued that Mathur must demonstrate that “the state action challenged in this Application, i.e., the Target, will cause or contribute to those future harms, and they have not done so.”[21] The Target according to Ontario is a minimum and does “not authorize or permit any emissions” – a crucial distinction.[22]

The Court began with the finding that a “mere change in the law cannot be the basis for a Charter violation” without further action.[23] This means that there is no constitutional right to the continuation of measures (like the past Target), even if those measures would ‘enhance Charter values’ unless the new measures represented a violation themselves.[24] The Court also disagreed with Mathur’s characterization of the Target, finding that it is a reduction target for GHG emissions, “no more, no less” and it does not authorize or incentivize any particular emissions.[25]They boil down Mathur’s “real complaint in this case” as the fact that “Ontario did not aim sufficiently high when setting the Target.”[26]

As such, the Court found Mathur’s section 7 arguments raise the issue of whether this Charter section imposes positive obligations on the state.[27] In this regard, the Court answered in the negative, finding that “no freestanding positive obligation on the part of the state to ensure that each person enjoys life, liberty or security of the person has been recognized under section 7.”[28] We discuss the idea of a positive obligation further in our concluding remarks.

From there, the decision moved on to consider whether the section 7 deprivation is contrary to the principles of fundamental justice against arbitrariness and gross disproportionality.[29]

Arbitrariness refers to a situation where “there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person” and the principle of gross disproportionality is infringed if “the impact of the restriction on the individual’s life, liberty or security of the person is grossly disproportionate to the object of the measure.”[30] In this instance, the Court found that the Target and its effects are not arbitrary as the Target furthers the goals that it states are intended and even if it does not go far enough, as Mathur alleges, this does not mean that it bears “no connection to its objective.”[31] Moving on to gross disproportionality, the Court noted that the rule against gross disproportionality “only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure.”[32] Again, the Court focused on the complaint that the Target does not go far enough finding that it cannot be that Mathur would argue it would be better if the Target did not exist at all.[33]

As such, any deprivation under section 7 was not found to be contrary to principles of fundamental justice and therefore no violation of section 7 has occurred.[34]

Section 15

The section 15 claim alleges that there are “adverse effects discrimination flowing from the Target” and that the Target “creates a distinction based on the enumerated ground of age because it imposes distinct burdens on different Ontarians based on their age and when they were born.”[35] Mathur argued that while the Target does not specifically distinguish between Ontarians of different ages, youth and future generations “will be impacted more acutely and more substantially due to their age.”[36] They specify three ways:[37]

1. young people are particularly susceptible to health impacts from climate change;
2. the impacts of climate change will worsen over time and youth and future generations will bear the brunt of these impacts; and
3. young people’s future is being impacted by decisions made today which they have no control over.

Ontario responded with the argument that section 15 does not place a positive obligation on government “to eliminate inequity.”[38] In the alternative, they argued that the theory “of discrimination on the basis of generation or birth cohort is based on a temporal distinction” not an age.[39] They alleged that if a distinction in treatment over time was a distinction on the basis of age, then every change in the law would create such a distinction “because every change in the law creates a distinction between those who were governed by the law before the change and those who are governed by the new law.”[40]

In their analysis, the Court acknowledged that young people are disproportionately impacted by climate change but found that this is not caused by the Target. As such, because the Charter does not impose a positive obligation “on the state to remedy social inequalities or enact remedial legislation”, leaving a gap between affected group members and non-group members does not infringe section 15(1).[41] Justice Vermette also agreed with Ontario’s assertion that the distinction is not based on age but is instead a temporal distinction.[42] According to the Court, it is more properly characterized as a temporal distinction because “the impacts of climate change will be experienced by all age groups in the future” and in 2050 the impacts will be experienced by all Ontarians including people who are, today, in their older years.[43]

The Court finds; therefore, that Mathur has not established a violation of section 15(1).[44]

Principle of Societal Preservation

The third argument that Mathur put forward was a novel one focused on the principle of societal preservation. They defined this principle as the idea that “a government cannot engage in conduct that will, or could reasonably be expected to, result in the future harm, suffering, or death of a significant number of its own citizens.”[45] In relation to the case at hand, Mathur argued that the principle of societal preservation should be properly considered both a principle of fundamental justice and an unwritten constitutional principle and that “the societal preservation principle supports their interpretation of sections 7 and 15 of the Charter.”[46] Ontario disagreed, arguing that the proposed principle would be contrary to the Constitution “which permits the state to deprive a person of life, liberty and security of the person so long as that deprivation is in accordance with the principles of fundamental justice.”[47]

With regard to the argument that societal preservation should be considered a principle of fundamental justice, the Court disagreed for two reasons. The first was that they did not agree that the principle of societal preservation is a legal principle “or a basic tenet of our legal system” but rather that it would be more properly characterized as a policy principle.[48] The second is that the principle is not properly characterized as “fundamental to the way in which the legal system ought fairly to operate.”[49]

From there, the Court went on to analyze the argument that this principle should be recognized as an unwritten constitutional principle. However, before proceeding with this analysis, the Court prefaced this section by stating that “[u]nwritten constitutional principles cannot serve as bases for invalidating legislation” and can only be used in the interpretation of constitutional provisions or to develop structural doctrines necessary to the coherence of, and flowing from, the Constitution.[50] As such, the Court found that even if the principle of societal preservation was determined to be an unwritten constitutional principle, it would only help with the analysis of the alleged Charter violations and, further, that in this case it would not alter the decision.[51]

In the end, the Court did not find that there had been a violation of either section 7 or 15 and the Application was dismissed.[52]

No Positive Obligation under Section 7 of the Charter

In particular with regard to the section 7 arguments, the Court did not find that there was a general positive obligation flowing from this Charter section. The Court did acknowledge instances in the past where the government was obligated to “take positive steps under section 7”; however, these were “in response to laws or state actions that aggravated risks to life, liberty or security of the person, and not as a result of a freestanding positive obligation.”[53] Specific examples included a law that prevented health care access and the requirement to seek assurances with regard to the death penalty prior to an extradition order.[54] In each of the examples, a positive obligation was only found after “the state had interfered with an applicant’s right to life, liberty or security of the person.”[55] This was distinguished from the facts at hand as the Court found that in this instance the Application “is seeking to place a freestanding positive obligation on the state to ensure that each person enjoys life and security of the person, in the absence of a prior state interference with the Applicants’ right to life or security of the person.”[56]In other words, the “Applicants are not seeking the right to be free … from the Target” but rather they “would prefer a more restrictive target.”[57] The Court did acknowledge that the “Federal Court of Appeal has recognized that section 7 is not frozen in time and that it may evolve to encompass positive obligations, possibly in the domain of ‘climate rights’.”[58] This case; however, was not the one to chip away at this principle.

Without a more generous interpretation of positive obligations, it will be difficult to find a Charter infringement for inadequate government action related to climate change targets.[59] Instead, we may need to look to other guiding principles such as the principle of non-regression. The principle of 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.[60] The principle does not prohibit any changes to the law but instead requires changes to ensure the same level of environmental protection (or better).[61] The enforcement of this principle would likely have prevented Ontario from lowering the Target and would have acted as a minimum standard for protection.

It remains to be seen whether a future Court would be more willing to assign a positive obligation to government action on climate change; however, this is but an early shot at this type of litigation and we will wait and see if future litigants have more success.

[1] The ELC has written about the ongoing litigation in Mathur v Ontario – see here and here for background.

[2] Mathur v Ontario, 2023 ONSC 2316 [Mathur 2023].

[3] 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/.

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

[5] Ibid, c 13, ss 3 & 4.

[6] 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.

[7] Mathur 2023, supra note 1 at para 9.

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

[9] Mathur 2023, supra note 1 at para 2.

[10] Mathur 2020, supra note 7.

[11] Mathur 2023, supra note 1 at paras 17-21.

[12] Ibid at paras 22-24.

[13] Ibid at para 25.

[14] Ibid at para 47.

[15] Ibid at para 40.

[16] Ibid at para 96.

[17] Ibid at para 106.

[18] ibid at para 48.

[19] Ibid at para 48.

[20] Ibid at para 49.

[21] Ibid at para 59.

[22] Ibid at para 60.

[23] Ibid at para 113.

[24] Ibid at para 113.

[25] Ibid at para 122.

[26] Ibid at para 122.

[27] Ibid at para 124.

[28] Ibid at para 126.

[29] Ibid at para 152.

[30] Ibid at paras 153 & 161.

[31] Ibid at para 160.

[32] Ibid at para 161.

[33] Ibid at para 162.

[34] Ibid at para 171.

[35] Ibid at para 68.

[36] Ibid at para 69.

[37] Ibid at para 69.

[38] Ibid at para 75.

[39] Ibid at para 76.

[40] Ibid at para 76.

[41] Ibid at para 178.

[42] Ibid at para 180.

[43] Ibid at para 180.

[44] Ibid at para 183.

[45] Ibid at para 163.

[46] Ibid at para 79.

[47] Ibid at para 81.

[48] Ibid at para 165.

[49] Ibid at para 166.

[50] Ibid at para 185.

[51] Ibid at para 185.

[52] Ibid at para 188.

[53] Ibid at para 126.

[54] Ibid at paras 126 & 127.

[55] Ibid at para 129.

[56] Ibid at para 132.

[57] Ibid at para 132.

[58] Ibid at para 138 citing Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 139 and La Rose v Canada, 2020 FC 1008at paras 67, 69-72.

[59] The SCC acknowledged the possibility of a positive obligation in 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.”

[60] Linda Collins and David Boyd, “Non-regression and the Charter Right to a Healthy Environment” (2016) 29 J. Env. L. & Prac. 285.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.

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