Climate change litigation continues to simmer: Court of Appeal for Ontario remits Mathur Charter case back for rehearing

In Jan. 2024, the Court of Appeal for Ontario ("ONCA") heard the appeal of the Ontario Superior Court's ("ONSC") dismissal of the application in Mathur v Ontario, 2023 ONSC 2316. On Oct 17, 2024, the ONCA released its long-awaited decision (Mathur v. Ontario, 2024 ONCA 762), allowing the appeal and referring the matter back to the application judge for redetermination.

This unanimous decision found that the application judge erred in framing the request as a "positive rights" case seeking to impose freestanding obligations on Ontario, and that this error skewed the judge's entire analysis. The ONCA found that by enacting the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13 ("CTCA"), the Ontario government voluntarily assumed a positive statutory obligation to combat climate change in a Charter compliant way. The matter was remitted back to the application judge to be considered afresh.

Significantly, the ONCA invited the applicants to amend their application to incorporate intervenor arguments and adduce further evidence to this effect. This signals that the groundbreaking dispute in Mathur is far from over.

Background and application decision under appeal

In Mathur v Ontario, the ONSC considered an application brought by seven young climate rights activists, claiming that Ontario's revised greenhouse gas targets in the CTCA violated their rights under sections 7 and 15(1) of the Charter. The applicants argued that the level of emissions permitted by the provincial government's targets would lead to serious, harmful environmental consequences, and that the impact would disproportionately harm young people and future generations. The application joined a growing body of climate litigation cases grounded in the Charter, such as La Rose v Canada, 2023 FCA 241, considered in our previous article.

The ONSC dismissed the application on the grounds that any deprivation of the applicants' section 7 rights was not inconsistent with the principles of fundamental justice.^[1] The ONSC went on to find no breach of the applicants' section 15 rights on the grounds that any disproportionality in impact would be caused by climate change, and not the change in greenhouse gas targets.^[2]

Although the applicants were unsuccessful, the ONSC made notable findings regarding the recognition of climate rights. For example, the ONSC found that it was indisputable that climate change causes significant harm and poses an increased risk to the security of person.^[3] The ONSC also found it was uncontroversial that greenhouse gas emissions cause climate change.^[4]

Importantly, the application judge disagreed with the youth applicants that their case was "not a positive rights claim."^[5] She found that "the application was seeking to place a freestanding positive obligation on the state to ensure that each person enjoys life and security of the person, in the absence of a prior state interference with the Applicants' right to life or security of the person."^[6]

Despite these remarks, the ONSC declined to decide the issue of whether positive obligations should be imposed under section 7 because it was able to hold that any deprivation of the right to life or security of the person alleged in this case was not contrary to the principles of fundamental justice.^[7]

This conclusion left the door open for a higher court's recognition of a positive right to be protected from the harmful effects of climate change.^[8] The ONSC also repeatedly stated that section 15(1) of the Charter does not impose a positive obligation on the state to remedy social inequalities or enact remedial legislation throughout its section 15 analysis.^[9]

Key takeaways from the ONCA decision

1. Mathur is not a positive rights case
   
   

   The ONCA unequivocally held that the Mathur claim was not a "positive rights" case, contrary to the application judge's findings.^[10] It found that Ontario "voluntarily assumed a positive statutory obligation by enacting the CTCA to combat climate change.^[11] The Ontario government had a responsibility to ensure its underlying plan and targets complied with the Charter.

   The ONCA found that the application judge's positive rights framing of the case improperly "coloured" her analysis and findings on the section 7 and 15 claims alleged by the youth litigants.^[12] More specifically, the ONCA found that the positive rights framing not only skewed the application judge's analysis on how the alleged section 7 deprivations were in accordance with the principles of fundamental justice,^[13] but also her causation analysis under section 15.^[14]
   
   

2. The requested relief does not offend the separation of powers
   
   

   The ONCA made key findings about the relief requested by the youth litigants in their application, namely the declaration that Ontario's target and the enacting provisions of ss. 3 and 16 of the CTCA are unconstitutional. The Court rejected Ontario's framing that the appellants were requesting that the court assume judicial control over environmental and climate policy.^[15]

   According to the Court, a declaration that the target violates the applicants' section 7 and 15 Charter rights could be ordered without improperly telling Ontario precisely what to do to make its target Charter compliant. Put simply, courts can exercise their discretion to grant declaratory relief as a proper remedy and remain respectful to the separation of powers.^[16]

   The ONCA rejected Ontario's argument that the appellants' request that the target conform to scientific standards was vague and imprecise.^[17] According to the Court, "[i]f a breach of the appellants' Charter rights is declared, there are clear international standards based on accepted scientific consensus that can inform what a constitutionally compliant target and plan should look like."^[18]
   
   

3. The matter is remitted back for reconsideration
   
   

   For the above reasons, the ONCA ultimately remitted the case for a new hearing to consider these issues in more detail, without making a final determination. The appellate court held that that the issues raised in the youth litigants' application must be considered afresh and looked at through the correct analytical lens.

   In coming to this conclusion, the ONCA highlighted that the interveners raised relevant and important issues that were not determined by the application judge.^[19] On this point, the ONCA agreed with the application judge that these arguments should be properly pleaded by the appellants (and not just the intervenors). The ONCA encouraged the appellants to amend their pleadings if they wished to do so,^[20] and noted the potential need for further evidence.^[21]

Implications of the ONCA decision in Mathur

This decision is a significant development for climate litigation in Canada. As the first Canadian appellate court to consider rights-based climate litigation claims on the merits, the ONCA has provided insight on the challenging questions related to the positive and negative rights dichotomy that have plagued the viability of climate litigation claims since their arrival in Canada.

In addition to asserting that climate litigation cases do not always engage positive rights, the decision makes significant contributions to the widespread concern that climate litigation claims of this nature improperly seek to have the judiciary interfere with environmental and climate policy. In this decision, the ONCA emphasizes that Courts can review government climate action that is alleged to infringe the Charter and grant declaratory relief, while leaving it up to the government to determine the precise Charter compliant steps.

While it remains to be seen whether this decision will further encourage or discourage government action on climate change, the ONCA continues the ongoing trend of courts taking judicial notice of climate change and the science surrounding it.^[22] At paragraph 70, the ONCA emphasizes the "clear international standards based on accepted scientific consensus that can inform what a constitutionally compliant [climate target] should look like."^[23] It is worth noting that international targets are also now reflected in domestic federal legislation.^[24]

All and all, this decision signals that rights-based climate litigation has a growing home in Canada, one where our courts are only just beginning to develop what will surely become a very rich jurisprudence therefrom.

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