Governments in the hot seat in climate change Charter litigation

Co-authored by articling student Maggie Sainty.

In January 2024, the Court of Appeal for Ontario heard an appeal of the Ontario Superior Court’s (“ONSC”) dismissal of Ontario’s motion to strike out the application in Mathur v Ontario (“Mathur”). In Mathur, seven young Ontarians challenged a 2018 decision by the Ontario Government to lower the province’s greenhouse gas emissions (“GHG”) target. The appellants argued that the revised target was inadequate to prevent serious adverse consequences.

As we await the highly anticipated decision of the Court of Appeal in Mathur, this article explores climate litigation that paved the way for the Superior Court’s decision in Mathur.

Mathur marked the first Ontario decision to find that climate-related claims are suitable for determination by the courts or in other words, justiciable. Mathur was preceded by the British Columbia Supreme Court (“BCSC”) decision, Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74 in January 2023 and the Federal Court’s decisions in La Rose v Canada, 2020 FC 1008 and 2020 FC 1059 in the fall of 2020.

Since the Superior Court’s decision in Mathur, the Federal Court of Appeal (“FCA”) released its decision in La Rose v Canada, 2023 FCA 241. In Sierra Club and the Federal Court of Appeal’s decision in La Rose, the courts ultimately concluded that climate-related claims were justiciable but still faced challenges to success.

Sierra Club of British Columbia Foundation v British Columbia: British Columbia court finds climate challenges are justiciable

In Sierra Club, the petitioner challenged the province’s reporting on progress towards its climate change targets pursuant to the accountability framework in the Climate Change Accountability Act, SBC 2007, c 42 (the “CCAA”).

The petitioner argued that the Minister’s 2021 Accountability Report (the “Report”) failed to include plans for meeting province-wide targets for 2025, 2040 and 2050, and meeting the 2030 target to cut carbon pollution in the oil and gas sector. Sierra Club argued that the report failed to meet the CCAA’s statutory requirements and was therefore an unreasonable exercise of the Minister’s reporting obligations.

In January 2023, the BCSC made two key conclusions.

1. That the nature of British Columbia’s reporting on progress towards climate change was justiciable.
2. The Minister’s compliance with statutory reporting requirements had been reasonable to date. 

The BCSC held that the claim was justiciable given that mandatory reporting requirements could be assessed on an objective legal standard and the court was not being asked to evaluate the content or adequacy of the information provided in the Report, only whether the information was provided.^[1]

Sierra Club argued that the Report did not include an adequate plan to continue progress towards 2025, 2040, and 2050 targets, as well as the targets set for the oil and gas sector.^[2] Sierra Club contrasted the plans for these years with the quantitative detailed plan for 2030. Sierra Club argued that the CCAA required that the annual accountability reports include plans “to continue progress toward” targets, which imposes an obligation to provide a quantitative explanation of the province’s action will lead to progress towards each of the target.^[3]

The BCSC rejected Sierra Club’s interpretation that plans “to continue progress toward achieving” the targets required a detailed explanation of of how far the province’s actions progressed towards each of the legislative targets.^[4] The province’s reporting on the 2030 target exceeded the detail required.^[5]

Mathur v Ontario: Ontario court finds that climate challenges are justiciable, but Ontario did not violate the Charter

In Mathur v Ontario, seven young applicants challenged Ontario’s greenhouse gas emissions reduction target as being contrary to the Canadian Charter of Rights and Freedoms. After surviving the Ontario government’s preliminary motion to strike in 2020, this climate-related Charter challenge was permitted to proceed to a hearing on the merits in 2023.

Similar to La Rose, the applicants based their claims as violations of section 7 and 15(1) of the Charter. Specifically, the youth argued that Ontario’s target violated section 7 of the Charter, by allowing a level of emissions that would lead to serious adverse consequences and put the lives of Ontarians at risk. The youth argued that the emissions target violated section 15(1) of the Charter on the basis that young people and future generations disproportionately bear the burden and face the adverse effects of inadequate climate change policy.

At the hearing of the application on its merits, the ONSC concluded that although the matter was justiciable, there was no violation of the applicants’ section 7 security of the person rights since the applicants had not demonstrated that any deprivation of their rights were contrary to the principles of fundamental justice.^[6]

The ONSC also found that there was no breach of the applicants’ section 15 equality rights because any disproportionate impact experienced by the applicants as youth would be caused by climate change itself and not by Ontario’s greenhouse gas reduction target.^[7] The ONSC found that “a mere change in the law cannot be the basis for a Charter violation . . . even if the previous law provided greater life, liberty or security of the person.”^[8]

Although the ONSC found that there were no Charter violations, the court made notable findings regarding the harms of climate change:

1. It was uncontroversial that GHG emissions cause climate change.^[9]
2. It was well-established that climate change is causing significant environmental, economic and human harm nationally and internationally, with especially high impacts in the Canadian Arctic, in coastal regions and on Indigenous peoples.^[10]
3. It was indisputable that as a result of climate change, “Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person.”^[11]

The ONSC determined that it did not need to decide whether positive obligations should be imposed under section 7 in this case because any deprivation of the right to life or security of the person was not contrary to the principles of fundamental justice relied upon by the applicants.

However, the ONSC acknowledged that the applicants made a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under section 7 of the Charter.

La Rose: Opening the door to Charter challenges of climate change legislation

In La Rose v Canada, 2023 FCA 241, the Federal Court of Appeal opened the door further to the possibility that climate change-related actions against the federal government could proceed to trial on the basis of potential infringement of Charter rights. In the fall of 2020, the lower court had granted the Crown’s motion to strike the statement of claim without leave to amend.

The appellate court’s reasons addressed two lower court Federal Court decisions striking the appellants' statements of claim on the basis that they disclosed no reasonable cause of action and were not justiciable:

1. The appellants in La Rose are 15 Canadian children and youth who initiated a Charter challenge against Canada for its failure to address the problem of climate change. They contended that the impacts of climate change “interfere[d] with their physical and psychological integrity and their ability to make fundamental life choices.”

    

2. The appellants in the Misdzi Yikh action are two Wet’suwet’en House groups who argued that Canada’s inadequate response to climate change posed a threat to their identity, culture, relationship to the land, and food security.

Both groups of appellants initiated actions against the Canadian government claiming that the government's failure to address climate change breached the appellants' rights under:

1. Section 7 of the Charter, security of the person.
2. Section 15 of the Charter, right to equality.
3. Section 91 of the Constitution Act, peace, order, and good government.
4. The doctrine of public trust.

On appeal, the FCA grappled with the justiciability of the claims, whether the claims disclosed a cause of action, and the adequacy of the pleadings. The court ultimately upheld the lower court's decision to strike all of the appellants' claims, with the exception of the appellants' claims under section 7 of the Charter.

The appellate court agreed with the lower Court that there was no basis in law for the appellants’ claims under section 15 of the Charter, section 91 of the Constitution Act, and the public trust doctrine:

1. The appellate court also determined that the appellants’ section 15 claim, that the government’s response to climate change has a disproportionate impact on youth, had been properly struck on the basis that intergenerational equity is not currently within the scope of section 15.

    

2. In their pleadings the appellants had relied on the peace, order and good government provision in section 91 of the Constitution Act and the public trust doctrine to ground the claim that the government had certain obligations to protect, maintain, or care for the environment. The appellate court noted that section 91 is an unqualified grant of legislative power, not an overarching obligation that requires Parliament to maintain a standard of “peace, order and good government of Canada” with every legislative decision.

    

3. The appellate court agreed with the lower court that the public trust doctrine asserted by the plaintiffs is not recognized in Canadian law. In their statement of claim, the youth appellants asserted that Canada has breached its duty to preserve and protect inherently public resources—bodies of water, the air, and the permafrost—so that current and future generations may access, use, and enjoy these resources.

The FCA found that the section 7 claims were justiciable, rejecting the notion that the claims are not justiciable simply because the question of climate change is complex or the legislation reflects a political choice on how to address the problem. The FCA found that the key to justiciability is the availability of "objective legal standards" against which a claim can be evaluated, such as the Canada’s commitments in the Paris Agreement.

Reviewing the jurisprudence, the appellate court acknowledged that section 7 could one day impose positive obligations on the government and this could potentially arise in the context of climate litigation. The FCA found that the claim of a right to a healthy environment under section 7 was novel, but not necessarily doomed to fail. The appellate court struck the section 7 pleadings with leave to amend for the applicants identify specific legislative provisions allegedly responsible for the corresponding deprivation of Charter rights.

Watch this space

Leading up to the release of the Court of Appeal’s decision in Mathur, it is now clear that Canadian courts consider Charter claims in climate change litigation to be open for judicial determination, including the possibility of the imposition of positive obligations on governments to prevent the harms of climate change. Whether the Court of Appeal’s decision in Mathur is another small step or a giant leap remains to be seen.

Subscribe to the Environmental Law Newsletter and keep your eye on this space for our update upon the release of the Ontario Court of Appeal’s decision in Mathur and for Part 2 in our Modern Environmental Litigation Series.