Court of Appeal Orders New Hearing in First Charter Challenge to Ontario’s Climate Policy

Introduction

On October 17, 2024, the Ontario Court of Appeal (“ONCA”) released a unanimous decision in Mathur v. Ontario (“Mathur”),^[1] the latest decision in an ongoing challenge to Ontario’s Cap and Trade Cancellation Act (“CTCA”).^[2] The appellants, a group of Ontario youth, some of whom are Indigenous, successfully appealed the decision of Justice Vermette of the Ontario Superior Court of Justice (“ONSC”) which ruled that while the challenge raised justiciable issues, it did not establish any violations of sections 7 and 15 of the Canadian Charter of Rights and Freedoms (“Charter”).^[3]

The ONCA allowed the appeal, on the basis that Justice Vermette erred in viewing this as a positive rights case – whether the court can impose a positive obligation on Ontario to combat climate change. Instead, the ONCA found that the question should have been whether whatever action taken by Ontario to combat climate change was Charter compliant. As such, the ONCA ordered a new hearing before the ONSC to provide an adequate opportunity to consider an expanded evidentiary record based on this clarified question as well as the issues raised by the intervenors that were not determined at first instance.^[4]

Legislative Scheme and Procedural History

In 2018, Ontario repealed the Climate Change Mitigation and Low-carbon Economy Act (“Climate Change Act”), which set out a greenhouse gas emission reduction target (“Target”) of 37% below 2005 levels by 2030, and replaced it with the CTCA.^[5] The CTCA itself does not set out a target but requires the government to do so. Shortly after the CTCA came into force, the Ministry of the Environment, Conservation and Parks released a plan that set the new emissions target (“Revised Target”) at 30% below 2005 levels by 2030.^[6]

In response, the appellants brought an application to the ONSC, arguing that the adoption of the Revised Target was insufficient to effectively combat climate change, such that it violated their Charter rights. Specifically, the appellants argued that their section 7 right to life, liberty and security of the person was violated because climate change poses dangerous risks to Ontarians’ life and well-being, and that their section 15 right to equal treatment was violated due to climate change having a disproportionate impact on young people.^[7]

The Attorney General of Ontario attempted to have the claim struck on the grounds that the issue was not justiciable – something not suitable for judicial determination (e.g., a political issue).^[8] The attempt failed and Justice Vermette heard the case on its merits – making Mathur the first climate lawsuit based on the Charter to reach a full hearing in Canada.

ONSC Decision

In a landmark decision, Justice Vermette found that the appellants raised a justiciable issue because they challenged specific state action and legislation for Charter compliance. Such challenges must be considered, “even when the issues are complex, contentious and laden with social values.”^[9] In this case, the specific action was the enactment of the CTCA which eliminated the Target in the Climate Change Act and required the creation of the Revised Target.^[10]

After dealing with this issue, Justice Vermette went on to analyze the merits of the Charter claim.

Based on the expert evidence, Justice Vermette found it indisputable that, as a result of climate change, Ontarians are experiencing an increased risk to life and security of the person, and that climate change has a disproportionate impact on young and Indigenous Peoples.^[11] She also found that the Revised Target fell severely short of the scientific consensus as to what is required to combat climate change and that, by not taking further steps to reduce greenhouse gas emissions, Ontario is contributing to an increase in the risks to life and security of the person.^[12]

Despite that, Justice Vermette found that the appellants failed to establish a violation of sections 7 or 15.

The basis for her decision was that while the Revised Target is not meaningless, the Revised Target itself does not impose any risks on the appellants. It is merely a goal and neither authorizes nor creates the greenhouse gas emissions that will lead to climate change.^[13] Therefore, the issue became whether section 7 or 15 imposes a positive obligation on the state to protect life, liberty and security of the person or to remedy social inequalities. Justice Vermette found that even if section 7 did impose a positive obligation on the state, section 7 was not violated because the Revised Target does limit the amount of allowable emissions – it just does not go far enough. Therefore, the Revised Target’s purpose and effect were connected to the objective in reducing greenhouse gas emissions and were not arbitrary. Lastly, the principle of gross disproportionality is designed to rein in draconian impacts of the law, so it cannot apply in positive rights cases.^[14]

Justice Vermette found that section 15 imposes no such positive obligation.^[15] Furthermore, the worsening impacts of climate change over time does not constitute a disproportionate impact based on age; it is merely a temporal distinction. The impacts of climate change in the future will be experienced by Ontarians of all age groups.^[16]

Given these findings, Justice Vermette dismissed the appellants’ application.

ONCA Decision

The appellants appealed Justice Vermette’s decision on the basis that she incorrectly mischaracterized their application as seeking to impose freestanding positive obligations on Ontario to combat climate change. The ONCA heard the appeal on January 15, 2024, and released their decision on October 17, 2024.

The ONCA agreed with Justice Vermette that the Charter applies to the Revised Target and the CTCA, therefore the issues raised by the appellants are justiciable.^[17] However, the ONCA also agreed with the appellants’ submission that Justice Vermette erred in considering this case as a positive rights case.

Referencing the Supreme Court of Canada, the ONCA agreed that sections 7 and 15 of the Charter have not yet been interpreted to place a positive obligation on the state to protect life, liberty and security of the person nor to remedy inequalities.^[18] However, whenever the state chooses to take action, it must do so in a manner that complies with the Charter, in that the action does not have an adverse impact on the rights guaranteed by the Charter.^[19]

As such, the ONCA viewed the issue as follows: in creating the Revised Target, which Ontario was statutorily obligated to do, has Ontario committed itself to levels of greenhouse gas emissions that violate the appellants’ Charter rights?^[20]

Charter Analysis

Notably, the ONCA endorsed Justice Vermette’s finding that, regardless of what other countries do or do not do to combat climate change, Ontario’s contribution is real, measurable and not speculative.^[21] Furthermore, it is indisputable that Ontarians are experiencing an increased risk to life and security of the person due to the impacts of climate change. Therefore section 7 is engaged.^[22]

However, the ONCA found that Justice Vermette’s incorrect framing of the issue as a positive rights case coloured her analysis of whether the deprivation of the appellants’ rights was in accordance with the principles of fundamental justice. Justice Vermette focused on whether the Revised Target went far enough in the absence of a positive obligation to do anything. However, Ontario voluntarily assumed a positive statutory obligation to combat climate change, so Justice Vermette should have considered whether the Revised Target was Charter compliant in that context.^[23] The ONCA found the same error in Justice Vermette’s analysis of section 15.^[24]

Furthermore, the ONCA found that Justice Vermette’s conclusion that the appellants had not proved a causal link between the Revised Target and the impact on their section 15 rights was inconsistent with her evidentiary findings in her section 7 analysis. The ONCA found this conclusion to be difficult to reconcile with Justice Vermette’s acceptance of the expert evidence that the Revised Target was well below the scientific standard, that the Revised Target would contribute to risks to life and security of the person, and that young people would be disproportionately impacted by climate change. The ONCA stated that the judge presiding over the new hearing should be alive to this issue and offer a more fulsome explanation of this apparent inconsistency.^[25]

Decision to Remit to ONSC

Additionally, several issues were raised by interveners that were either not put before Justice Vermette, not necessary for her analysis, or were not pleaded in the notice of application. These included whether the Revised Target breached the Charter rights of Indigenous Peoples and their section 35 rights under the Constitution Act, 1982; the public trust doctrine; the application of international law; the best interests of the child principle; and the recognition of unwritten constitutional principles of societal preservation and ecological sustainability.^[26]

Because of these issues and the reframing of the Charter question, the ONCA decided to remit the application for a new hearing before Justice Vermette, or another judge of the ONSC. The ONCA observed that the appellants may wish to amend their pleadings to pursue the issues raised by the interveners, which along with the reframed question, may require an amplified evidentiary record. As the ONCA explained, the ONSC is better suited to considering such a record and making the findings necessary to determine whether the appellants’ rights were breached and what relief they may be entitled to.^[27]

Lastly, the ONCA provided guidance as to what sort of relief may be possible if the appellants are successful in the new hearing. Ontario argued that the appellants’ request that the Revised Target conform to scientific standards is vague and imprecise, making it impossible for the court to order.^[28] The ONCA disagreed with Ontario. Scientific evidence shows that the amount of greenhouse gases that Ontario emits can be measured, and the level of reduction in emissions required to meet international standards can be determined with precision.^[29] Therefore, the ONCA found it possible for the ONSC in the new hearing to order Ontario to set a new science-based Target. Regardless, the ONCA stated that it is also possible for the ONSC to issue a declaration that the Revised Target violates Charter rights, without necessarily telling Ontario precisely what to do to make the Revised Target Charter compliant.^[30]

Conclusion

While this is the first case in Canada to challenge climate policy on constitutional grounds in a full hearing, claimants in other jurisdictions have been successful in compelling their governments to enact stronger climate measures. In a case cited by Justice Vermette, the Supreme Court of the Netherlands upheld a ruling that the government of the Netherlands breached their duty of care towards its citizens by adopting an emissions reduction target that fell below established international standards.^[31] Furthermore, the Federal Constitutional Court of Germany found that, in failing to set sufficient provisions to reduce emissions beyond the year 2030, the legislature would be allowing one generation to consume large portions of the carbon budget while leaving subsequent generations with the burden of reducing consumption and limiting their freedoms.^[32]

The ONCA’s ruling does not necessarily mean that the Revised Target will be found to be unconstitutional. However, the ONCA frequently cited the expert evidence accepted by Justice Vermette regarding the discrepancies between Ontario’s scheme and what is recommended by the scientific community. By then concluding that there is nothing preventing the ONSC from ordering Ontario to produce a Target that is in line with scientific standards, the ONCA may be signalling to the ONSC what to do, pending the analysis of the expanded evidentiary record contemplated by the ONCA as a result of the interveners’ issues.

Regardless, any decision in the new hearing is expected to be significant. The result has the potential to impact how the government develops climate policies and how citizens and groups may challenge them.

We will continue to stay informed about any developments in these proceedings and any other changes to Ontario’s climate change policy.

[1] Mathur v. Ontario, 2024 ONCA 762 (“Mathur”) .