Introduction
On October 17, 2024, the Court of Appeal for Ontario (Court) issued an important decision in Mathur et al. v. His Majesty the King in Right of Ontario (Mathur), ordering a new hearing for the youth-led constitutional challenge of the Ontario government’s emissions reduction target. Mathur challenged the provincial government’s greenhouse gas (GHG) reduction target on the grounds that it violated the Canadian Charter of Rights and Freedoms (Charter). The unanimous ruling by Ontario’s highest court sets a significant precedent for climate change litigation in Canada, reviving the possibility that Ontario’s emissions target could be found unconstitutional.
Background
The Mathur case originated after the Ontario legislature passed the Cap and Trade Cancellation Act in 2018, which (1) repealed the Climate Change Mitigation and Low-carbon Economy Act, which contained GHG emission reduction targets; and (2) required the provincial government to set new reduction targets. The applicants challenging the legislation (a group of seven young activists) argued that the provincial government’s subsequent target calling for a 30% reduction in GHG emissions from 2005 levels by 2030 was unconstitutional and fell short of international science-based standards. The applicants argued that the target violated their section 7 rights to life, liberty and security of the person and their section 15 equality rights under the Charter. They sought an order requiring the provincial government to establish an amended science-based emissions reduction target and revise its climate change plan in accordance with international standards.
In April 2020, the provincial government brought a motion to dismiss the case on the basis that the applicants’ claims were not justiciable, which was ultimately denied by the Ontario Superior Court. However, the Superior Court later dismissed the application on its merits in April 2023, holding that the target set by the provincial government did not violate the applicants’ rights under sections 7 or 15 of the Charter.
The application judge found that the issue of whether the applicants’ Charter rights were violated was justiciable but characterized the application as raising a “positive rights case.” The application judge concluded that any deprivation of Charter rights was not contrary to the principles of fundamental justice and that the Charter did not impose a positive obligation on the provincial government to take any specific steps to combat climate change.
The Appeal Decision
On appeal, the applicants argued that the application judge mischaracterized the application as seeking to impose freestanding positive obligations on the provincial government to combat climate change. The Court agreed, ruling that the lower court had erred in framing the case as a positive rights case.
The Court noted that the application did not seek to impose any new positive obligations to combat climate change. Rather, the applicants argued that, since Ontario had voluntarily implemented a positive statutory obligation to set an emissions reduction target, the provincial government was obligated to set the target in a constitutionally compliant manner. As a result, the Court held that the applicants’ Charter claims raised live issues to be determined. The Court found the application judge had erred in prematurely dismissing the application rather than considering whether the government’s GHG reduction target was Charter-compliant. In the Court’s view, the application judge’s approach was contrary to existing Supreme Court of Canada case law and risked immunizing government action from Charter review.
The Court ultimately declined to decide the Charter claims itself and sent the case back to the Ontario Superior Court for a new hearing, on the basis that courts of first instance were better placed to determine whether the declarations and directions sought should be granted. In particular, the Court noted that given the seriousness of the claims, the additional issues raised on appeal, and the potential need for further evidence, it would not be in the interests of justice for the Court to take on a fact-finding role and conduct the Charter analysis itself. The Court also found that if the application were ultimately successful, the Superior Court would be best positioned to determine the appropriate remedy.
Conclusion
Mathur revives the possibility that Ontario’s emissions target may be constitutionally challenged. Following the Federal Court of Appeal’s decision in LaRose v. Canada (see our Blakes Bulletin), which permitted certain Charter claims concerning the federal government’s GHG reduction policies to proceed, it is clear that constitutional challenges to government climate policy are alive and well in Canada.
