Want to keep up with climate news, law, and policy? Sign up for the Green Economy Law Monthly Newsletter here.
On October 17, 2024, Ontario’s Court of Appeal sided with a group of young climate activists in its Mathur v. Ontario decision, reviving a case against the province which was previously dismissed in April 2023.
Represented by Ecojustice, the plaintiffs commenced litigation in 2019. They alleged that 2018's Cap and Trade Cancellation Act, passed by the (at the time) newly-elected Progressive Conservative government, under the leadership of Premier Doug Ford, substantially increased the likelihood of Ontario’s future generations suffering serious and disproportionate harm resulting from anthropogenic climate change. And because Ontario’s new climate policy (or lack thereof) recklessly exacerbated climate change, the province was violating the Charter rights of its youth. Specifically, their right to life, liberty and security of the person under s. 7, and their equality right under s. 15.
Having survived two attempts at summary dismissal, the case came before Justice Vermette in Ontario’s Superior Court in 2022. Though scathing in her assessment of the provincial government’s decision to limit climate efforts “to an objective that falls severely short of the scientific consensus as to what is required,” the Justice nevertheless concluded the Charter cannot impose positive obligations on government to set more ambitious climate goals. She dismissed the claim accordingly.
However, the Court of Appeal disagreed with the lower court’s view. It determined that the plaintiffs were not looking to impose upon the province a “new positive obligation”. Rather, the court regarded Ontario as having already voluntarily taken on an emissions reduction obligation pursuant to s. 3(1) of CTCA, which states that “[t]he Government shall establish targets for the reduction of greenhouse gas emissions in Ontario and may revise the targets from time to time.”
Soon after passing the CTCA, the Ford government released its Made-in-Ontario Environment Plan, which stated that “Ontario will reduce its emissions by 30% below 2005 levels by 2030.” The Court of Appeal regarded this as effectively fulfilling the promise made by s. 3(1), even if the government did it by means of a policy plan rather than official legislation or regulation. Once assumed, the government’s legislative obligation had to be fulfilled in a manner compatible with the Charter.
The Court of Appeal then faced the legal question of whether Ontario’s climate action plan and emission reduction targets are Charter compliant - and decided to punt, remitting the case back to Superior Court for a new trial on revised grounds.
The Court of Appeal did, however, offer some promising guidance concerning the remedies sought by the plaintiffs, giving short shrift to the government’s claim that the plaintiffs’ request for a science-based emissions target was “impossible to order” or “vague and imprecise”. With reference to relevant case law, the judges made it clear that “ordering Ontario to produce a constitutionally compliant” climate plan and emissions target was well within the range of remedies available to the lower court.
Please contact our firm at 647-725-4308 or info@greeneconomylaw.com for legal assistance in connection with climate policy or green business matters.