The Court of Appeal for Ontario has given new life to the climate change-based Charter claims of seven Ontario youth in Mathur v Ontario.[1] I previously wrote about Ontario’s failed motion to strike out the Mathur applicants’ claims in Ontario Superior Court Refuses to Strike Out Climate Change Charter Application. In this case, seven youth argue that Ontario's greenhouse gas (GHG) emission reduction target fails to comply with the Charter, specifically section 7 (life, liberty, and security of the person) and section 15 (equality). The Court of Appeal’s decision provides a vital clarification that Ontario’s climate targets, set under the Cap and Trade Cancellation Act (CTCA) and the subsequent Preserving and Protecting our Environment for Future Generations plan, must be assessed through the lens of Charter compliance.
BACKGROUND
The Stakes
In 2021 the Supreme Court of Canada issued a stark warning: “Climate change is real. It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future.”[2] Canada’s highest court went on to note that “climate change has also had a particularly serious effect on Indigenous peoples, threatening the ability of Indigenous communities in Canada to sustain themselves and maintain their traditional ways of life.”[3] Ultimately, the SCC held that “the only way to address the threat of climate change is to reduce greenhouse gas emissions.”[4] In short, as I wrote about in Climate Change, Carbon Pricing, and the Constitution, Canadian courts have recognized climate change as a national concern with an urgent need for corrective action from policymakers, regulators, and the business community at large.
It is in this context, that the Mathur applicants advance claims that a provincial government’s weakening of greenhouse gas reduction targets constitutes a violation of the Charter-protected rights of Ontario youth.
Ontario’s Climate Targets
Ontario’s original 2016 Climate Change Mitigation and Low-carbon Economy Act set ambitious targets for GHG reductions: a 15% reduction by 2020, a 37% reduction by 2030, and an 80% reduction by 2050, all from 1990 levels.[5] However, with the passage of the CTCA in 2018, Ontario revoked these targets and established a new target of a 30% reduction from 2005 levels by 2030.[6] This target attempts to align with Canada’s Paris Agreement commitments, but is substantially less ambitious than Ontario’s previous targets.
Procedural History
Following Ontario’s unsuccessful motion to strike out the Mathur application,[7] the merits of the application proceeded to a hearing in the Superior Court of Justice in the fall of 2022. In reasons released April 14, 2023, Justice Vermette dismissed the application, finding no Charter violation. She held that while the issue was “justiciable” (i.e. capable of being adjudicated by the courts), the applicants sought to advance claims regarding “positive rights” that the Charter does not require.[8] Under section 7, she ruled that while climate change poses risks, the government’s target did not impose an unjustifiable increased risk on life or security. Regarding section 15, Justice Vermette found that climate change disproportionately impacts youth, but this impact stemmed from climate change itself, not from Ontario’s specific target. Moreover, she held that section 15 does not impose a positive obligation on the government to address social inequalities or enact specific climate policies. She also rejected the proposed constitutional principle of “societal preservation.”
KEY ISSUES ON APPEAL
Positive vs. Statutory Obligations
On appeal, the Court of Appeal clarified that it was an error to frame the case as a “positive rights” matter. Instead, the Court of Appeal stated that Ontario had voluntarily assumed a statutory obligation to set emission reduction targets when it enacted the CTCA. Therefore, the issue was not about imposing new obligations, but rather ensuring that Ontario's climate plan and targets complied with the Charter under its existing statutory commitments.[9] The Court of Appeal emphasized that when the government undertakes specific actions within a statutory framework, those actions must meet Charter standards. The Court of Appeal clarified that while the Charter traditionally protects citizens from state interference, so called “negative rights”,[10] it can still apply to government actions under a statutory scheme that affects rights. Ontario’s climate target and its potential to increase climate-related risks and health impacts for youth and Indigenous communities triggered a duty to ensure that these actions were Charter-compliant according to the Court of Appeal. Here, the appellants were not demanding entirely new actions; instead, they were challenging Ontario’s failure to meet its established obligations in a constitutionally compliant way.
The Court of Appeal also acknowledged that by setting these targets, Ontario was actively choosing a level of emissions reduction that could have severe and life-threatening implications for the appellants and others,[11] particularly given Ontario’s own evidence that climate change will disproportionately harm youth and Indigenous communities.[12]
Section 7 of the Charter: Life, Liberty, and Security of the Person
Section 7 of the Charter protects the right to life, liberty, and security of the person, and mandates that any deprivation of these rights must be consistent with the principles of fundamental justice.[13] The Court of Appeal found that Ontario’s climate target engaged the appellants’ right to life and security by increasing their risk of climate-related harm. Expert evidence accepted on the application explained that climate change contributes to increased mortality, mental health deterioration, and physical harm, particularly in young and Indigenous populations.[14]
The Court of Appeal held that the application judge incorrectly approached this as a positive rights case and failed to adequately assess whether Ontario’s climate measures met the principles of fundamental justice.[15] Specifically, the Court of Appeal found issues with the lower court's dismissal of concerns about arbitrariness and gross disproportionality, two principles often applied to determine whether a law’s impact aligns with its purpose.[16] Ontario’s climate target might indeed be arbitrary or grossly disproportionate, given the established gap between its target and international scientific standards.
Section 15 of the Charter: Equality Rights
Section 15 of the Charter guarantees equality under the law and protection against discrimination.[17] The appellants argued that Ontario’s failure to set more rigorous climate targets disproportionately impacted young people and Indigenous communities, thereby violating their equality rights. Young people, who will live with the consequences of climate inaction, are particularly vulnerable, while Indigenous communities are uniquely affected due to their close ties to the land.
The application judge concluded that Ontario’s climate target did not cause the inequality faced by youth and Indigenous populations, viewing the harm as a result of climate change itself rather than Ontario’s specific policies.[18] The Court of Appeal found this reasoning inconsistent, especially given the application judge’s acceptance of evidence that Ontario’s actions contribute to an increased risk of harm to these groups. The Court of Appeal reasoned that by failing to enact a more ambitious climate target, Ontario could indeed be contributing to a discriminatory impact under section 15.[19]
POTENTIAL OUTCOMES AND REMEDIES
Notwithstanding the decision to set aside the dismissal of the application, the Court of Appeal did not grant the remedies sought by the Mathur applicants. Instead, the Court of Appeal remitted the case to the Superior Court for a new hearing, allowing for a thorough reassessment of the evidence, taking into account the guidance the Court of Appeal offered in its decision, and determination of the appropriate remedy by the lower court after a rehearing.[20] The Court of Appeal’s decision not to impose a final remedy underscores the complexity of climate-related cases within a Charter framework.[21] While the appellants sought a declaration of their Charter rights and a direction for Ontario to adopt a science-based target, the Court emphasized that such remedies could be crafted without dictating specific policies, thereby respecting governmental discretion.[22]
This decision aligns with past rulings, such as Canada (Prime Minister) v. Khadr, where the SCC allowed the executive to determine the specific actions needed to comply with Charter obligations.[23] The Court of Appeal’s suggestion that Ontario’s emissions targets be constitutionally compliant signals that while courts may not set policy, they can require governments to ensure their actions do not infringe Charter rights.
BROADER IMPLICATIONS: THE ROLE OF THE JUDICIARY IN CLIMATE POLICY
This case highlights the judiciary’s role in holding governments accountable for their commitments, particularly when policies directly impact fundamental rights. By remitting the case, the Court of Appeal has underscored the judiciary’s role as a check on governmental actions that have far-reaching consequences for vulnerable populations, especially where legislative action fails to meet constitutional standards. Ontario’s commitment to a legally mandated target, paired with the obligations imposed by the Charter, places the judiciary in a critical position to ensure that climate policy respects human rights and adheres to scientific standards.
This decision reflects an evolving understanding of environmental law within constitutional frameworks, acknowledging that climate change uniquely affects various demographics. For Indigenous communities, the effects of climate change transcend environmental harm, impacting cultural practices and traditional ways of life, which Canadian courts increasingly recognize as constitutionally significant.
Further, this Court of Appeal decision recognizes the intersections between environmental policy and constitutional rights. It challenges the notion that governments can set climate policies without regard to their broader social and legal implications, particularly concerning youth and Indigenous rights. By clarifying the distinction between statutory and positive obligations, the Court has laid the groundwork for future climate litigation in Canada, emphasizing the need for scientifically sound and constitutionally compliant policies.
As the case proceeds to rehearing, it will undoubtedly influence the development of climate jurisprudence in Canada. This decision may encourage similar actions across provinces and highlight the judiciary’s vital role in ensuring governmental accountability in the face of a global climate crisis. Through this lens, Mathur v Ontario not only reaffirms the Charter’s applicability to environmental matters, but also signals a call for a rights-based approach to climate policy—one that places the well-being and security of present and future generations at its core.
I will keep a close eye on the progress of the Mathur rehearing with great interest.
[1] Mathur v Ontario, 2024 ONCA 762.
[2] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para 2.
[3] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para 11.
[4] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para 2.
[5] Mathur v Ontario, 2020 ONSC 6918, at para 17.
[6] Mathur v Ontario, 2020 ONSC 6918, at para 29.
[7] Mathur v Ontario, 2020 ONSC 6918.
[8] See Mathur v His Majesty the King in Right of Ontario, 2023 ONSC 2316, at para 139.
[9] See Mathur v Ontario, 2024 ONCA 762, at para 37.
[10] See Mathur v Ontario, 2024 ONCA 762, at para 26.
[11] See Mathur v Ontario, 2024 ONCA 762, at para 12.
[12] See Mathur v Ontario, 2024 ONCA 762, at paras 13, 23.
[13] See Mathur v Ontario, 2024 ONCA 762, at para 42.
[14] See Mathur v Ontario, 2024 ONCA 762, at para 43.
[15] See Mathur v Ontario, 2024 ONCA 762, at para 50.
[16] See Mathur v Ontario, 2024 ONCA 762, at para 48.
[17] See Mathur v Ontario, 2024 ONCA 762, at para 54.
[18] See Mathur v Ontario, 2024 ONCA 762, at para 64.
[19] See Mathur v Ontario, 2024 ONCA 762, at para 65.
[20] See Mathur v Ontario, 2024 ONCA 762, at para 8.
[21] See Mathur v Ontario, 2024 ONCA 762, at para 7.
[22] See Mathur v Ontario, 2024 ONCA 762, at para 70.
[23] See Mathur v Ontario, 2024 ONCA 762, at para 69.
