Climate change poses an increasing danger to the planet and its inhabitants. How to combat it is a source of social and political debate. The Court of Appeal for Ontario recently recognized that “there is no dispute that global climate change is taking place and that human activities are the primary cause”. Building on this judicial recognition, a legal proceeding has recently been given the green light to proceed that, if successful, would severely limit the government’s ability to make unilateral decisions which might have the effect of undermining the protection and preservation of a healthy environment.
In 2018, the Ontario government repealed the Climate Change Mitigation and Low-carbon Economy Act, 2016, which had established a cap and trade program, as well as targets for reducing greenhouse gas emissions in Ontario. In place of the Act, Ontario introduced a less ambitious emission reduction target to be achieved by 2030 (“the Target”).
In a court application brought by seven Ontario youth between the ages of 12 and 24, the applicants challenged the validity and constitutionality of the Target (“the Application”). The Application is framed as a Charter-based constitutional challenge. In it, the youth allege that the Target is insufficient to effectively combat climate change, such that it violates the rights of Ontario’s youth under sections 7 (life, liberty and security of the person) and 15 (equality) of the Charter. The applicants seek declaratory and mandatory orders requiring the Ontario government to revise its plan and set a more stringent target for reducing greenhouse gas emissions.
In her well-reasoned decision in Mathur v. Ontario, 2020 ONSC 6918, released on November 12, 2020, Justice C. Brown of the Ontario Superior Court of Justice denied a motion brought by the Attorney General of Ontario (“AG Ontario”) to strike the Application.
AG Ontario argued that it was clear the Application must fail on several grounds, including that the applicants’ claims under the Charter have no reasonable prospect of success, positive obligations to redress the future harms of climate change cannot be imposed on the government by courts, and the applicants do not have standing on behalf of future generations.
Justice Brown rejected each argument. Analyzing the several novel legal claims advanced, she held that it was not “plain and obvious” that the Application discloses no reasonable cause of action or that it has no reasonable prospect of success. Justice Brown wrote that it is not clear that the Target will not lead to increased greenhouse gas emissions and negatively impact the life, liberty and security of Ontario’s youth and future generations, or that Ontario’s youth will not be disproportionately affected by the effects of the Target. Further, she found that it is unsettled, in the climate change context, whether a positive obligation can be imposed on the government to protect citizens’ rights under sections 7 and 15 of the Charter. Justice Brown was also unable to conclude, at this early stage of the proceeding, that the applicants should not be granted discretionary standing to advocate on behalf of future generations.
It should be stressed that this is only a procedural victory for the applicants. Although she denied Ontario’s motion to strike the Application, Justice Brown did not rule on the merits of the Application or the Charter claims made by the applicants. The applicants face a continued uphill climb to obtain the relief they seek, which is unprecedented in Ontario.
However, the importance of protecting the environment has been well-established in Canadian jurisprudence over the last two decades. Meanwhile, countries and courts across the world have been legislating or recognizing, in some cases constitutionally, the right of citizens to a healthy environment. With the ever-growing awareness of the threat climate change poses to our planet, the door remains open for Canadian courts to recognize a constitutionally-protected right to specific environmental standards.
We will be keeping a close eye on the progress of this Mathur Application.
APPROVED SOCIAL MEDIA
 S.O. 2016, c. 7.
 See R v Hydro-Québec,  3 SCR 213 at para 85; 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 at para 1.
 Sweden, Czech Republic, Greece and Jamaica are among the over 140 countries whose constitutions contain express provisions granting environmental rights and/or imposing governmental duties with respect to the environment. In February 2020, the Inter-American Court of Human Rights interpreted the rights enshrined in the American Convention on Human Rights to include a human right to a healthy environment and positive obligations on states to protect that right: Comunidades Indígenas Miembros de la Asociación Lhaka Honhat (Nuestra Tierra) v. Argentina, Inter-Am. Ct. H.R. (Feb 6, 2020).
 For more information on the state of environmental rights in Canada and the world, see The Environmental Rights Revolution (2012) and The Right to a Healthy Environment (2012), two books authored by British Columbia lawyer and law Professor David R. Boyd. Mr. Boyd is currently serving as a United Nations Special Rapporteur on human rights and the environment.