Case name:                      Mathur v. Ontario

Jurisdiction:                     Canada

Type of claim:                  Claim against sub-state legislature or government to enact stricter GHG reduction targets

Summary of result:       A motion brought by the Ontario government to strike the case because it has no reasonable process of success is dismissed. The Court allows the case to proceed to the merits stage, which is the main procedural stage in which the court will deal with all the arguments in detail.

Judgment final:               No

Court instances:

Source of claims:            Sec. 7 (Right to life, liberty and security of person) and Sec. 15 (Equality) of the Canadian Charter of Rights and Freedoms

Summary of Judgment

Background of the case

Ontario had previously enacted the Climate Change Mitigation and Low-carbon Economy Act, 2016, which established a cap and trade program as well as three targets for reducing the amount of greenhouse gas emissions in Ontario by 15% by the end of 2020, by 37% by the end of 2030, and by 80% by the end of 2050, compared to 1990 levels. The Act also stipulated that “When increasing the targets […] or establishing interim targets for the reduction of greenhouse gas emissions, the Lieutenant Governor in Council shall have regard to any temperature goals recognized by the Conference of the Parties established under Article 7 of the United Nations Framework Convention on Climate Change.”^[1]

In 2018, Ontario repealed the Climate Change Mitigation and Low-carbon Economy Act, 2016, through the Cap and Trade Cancellation Act, 2018 (“Cancellation Act”). Section 4(1) of the Cancellation Act states that “The Minister [of the Environment, Conservation and Parks], with the approval of the Lieutenant Governor in Council, shall prepare a climate change plan and may revise the plan from time to time.”

The Minister subsequently published a plan titled “Preserving and Protecting our Environment for Future Generations: A Made-in-Ontario Environment Plan” (the “Plan”). This new plan sets greenhouse gas reduction goals that are lower than the ones previously mandated by the Climate Change Mitigation and Low-carbon Economy Act, 2016, namely of 30% below 2005 levels by 2030.^[2]

Claims of the parties

The Applicants are seven young Ontario residents between the ages of 12 and 24 at the time. They bring the action on behalf of themselves, their generation and future generations of Ontarians.

They Applicants challenge the new reduction goals set out in the Plan as insufficient to meet Canada’s commitments under the Paris Agreement, as well as arbitrary. The resulting dangerous level of climate change will have devastating consequences on the Applicants’ rights under Sec. 7 (life, liberty and security of person) and Sec. 15 of the Canadian Charter of Rights and Freedoms (Charter) and violates principles of fundamental justice.

The Applicants ask the Court to:

• Declare that the new reduction target violates their rights under Sec. 7 and 15 of the Charter, as well as the unwritten constitutional principle that governments are prohibited from engaging in conduct that will, or reasonably could be expected to, result in the future harm, suffering or death of a significant number of its own citizens;
• Declare that Sec.7 of the Charter includes the right to a stable climate system, capable of providing youth and future generations with a sustainable future;
• Declare that the Cancellation Act violates Sec. 7 and 15 of the Charter;
• Order that Ontario forthwith set a science-based greenhouse gas reduction target that is consistent with Ontario’s share of the minimum level of greenhouse gas reductions necessary to limit global warming to below 1.5° Celsius above pre-industrial temperatures or, in the alternative, well below 2° Celsius;
• Order Ontario to revise its climate change plan once it has set a science-based greenhouse gas reduction target.^[3]

The Defendant (Ontario) brought a motion to strike out the application pursuant to Rule 21 of the Rules of Civil Procedure. ^[4] Such a motion is dealt with by the Court before the full trial begins and evidence on the claims will be heard. The Court may strike out the case if the application discloses no reasonable cause of action, or in other words, the case has no prospect of success.

The Defendant submits that the application is certain to fail for four reasons: (1) it is not justiciable; (2) it is based on unprovable speculations about the future climate consequences of Ontario’s greenhouse gas reduction target; (3) there is no positive constitutional obligation to prevent harms associated with climate change; and (4) the Applicants have no standing to seek remedies for “future generations”.^[5]

Ontario Superior Court of Justice

The Court rejects the Defendant’s motion to strike out the application, allowing the case to proceed to the “main” stage of merits review.

It should be noted, however, that this is not an indication that the case will be successful on the merits. The Court leaves many important questions open, holding that a pre-trial procedure is not the right place to review such difficult questions. Rather, the Court errs on the side of allowing the Application to proceed, so that the Applicants can provide evidence for their allegations, and the Court can review the arguments of both parties in more detail, at the merits stage.

The Court reviews the following points raised by the Defendants and holds that none of them shows that the application can clearly not be successful.

a) Are the new reduction target and the Plan reviewable by the courts?

The Court starts by asserting that Ontario’s greenhouse gas reduction target and the Plan are reviewable by the judiciary.

The Defendant argues that the reduction target and the Plan are not a legal instrument, but rather an expression of Ontario’s intentions and aspirations, and therefore not reviewable.^[6]

The Court disagrees, holding that the reduction target and the Plan are government action to which the Charter applies and that is reviewable by courts. Irrespective of whether they constitute law or policy, they are more than non-binding political aspirations.^[7] This follows from (a) the fact that the Cancellation Act mandates the Minister to issue the Plan and reduction targets;^[8] (b) the fact that the Plan and reduction targets resemble quasi-legislation or “soft law” that guide internal policy making within the government;^[9] and (c) the fact that the Plan and reduction targets have a mandatory effect, similar to that of administrative guidelines which are also judicially reviewable.^[10]

b) Are the claims by the Applicants capable of being proven?

Next, the Court holds that the Applicants’ claims are capable of being proven. Comparing the case at hand to the Supreme Court of Canada’s decision in Operation Dismantle, the Court holds that many of the Applicants’ assertions are susceptible to scientific evidence and are not “uncertain, speculative and hypothetical”. This is sufficient at the current stage of proceedings in order to not dismiss the claim; the scientific evidence will be assessed at a later stage.^[11]

c) Do the Charter claims have a reasonable prospect of success?

The Court further rejects the Defendant’s argument that the claim is not justiciable because it concerns a matter of complex public policy which, by its nature, cannot be determined by courts.^[12] The Court holds that the Applicants challenge specific legislation and government actions rather than a broad policy approach.^[13] The claim alleges a violation of Charter rights, which is a typical concern of courts.^[14]

Also, the Charter claims have a reasonable prospect of success.^[15] Especially, the right to life under Sec. 7 may be harmed by environmental pollution.^[16] The impacts of climate change may interfere with the liberty to choose where to live under Sec. 7.^[17] The psychological harm and mental distress resulting from the impacts of climate change may engage the security interest under Sec. 7.^[18] The Court notes that the Applicants will have a high evidentiary burden at the merits hearing, but that it does not seem impossible that the Applicants can succeed.^[19]

With regard to the Equality provision under Sec. 15 of the Charter, the Court notes that it remains to be seen whether the Applicants are able to prove a violation, but it cannot be excluded at this stage of proceedings.^[20]

d) Does the Application depend on positive obligations of the Province?

The Defendant further argues that the claim cannot succeed because the Charter does not confer positive obligations on the Province.

The Applicants contest that this is not a question of positive obligations. Rather, if the Defendant chooses to adopt a scheme to protect against climate change – which they have done by issuing the Plan and the reduction target – this scheme must comply with the Charter.^[25]

The Court refrains from deciding the issue, but rather holds that a motion to strike is not the appropriate forum for such a complex issue. Past jurisprudence is open to accepting positive state obligations in special circumstances. The Applicants should therefore be given the chance to make full submissions at the merits hearing.^[26]

e) Do the Applicants have standing on behalf of future generations?

The Court also leaves open the question whether the Applicants have standing to bring the case on behalf of future generations.^[27] This remains to be decided at the merits stage. It does not, in the opinion of the Court, seem impossible to grant public interest standing to the Applicants, particularly because future generations are unlikely to be able to bring the same suit in the future, as the state of the world will have changed.^[28]

f) What remedies are potentially available to the Applicants?

Finally, the Court notes that the remedies requested by the Applicants are not beyond the institutional capacity of courts. It is possible for courts to avoid venturing into questions of public policy by limiting themselves to declaratory relief and leaving it to the government to determine the best means forward.^[29]

[1] Paras. 16-19.

[2] Paras. 24-29.

[3] Para. 31.

[4] Para. 32.

[5] Para. 41.

[6] Paras. 48-51.

[7] Paras. 59-62.

[8] Para. 63.

[9] Paras. 64-67.

[10] Paras. 68-70.

[11] Paras. 72-102, especially paras. 95-96.

[12] Paras. 103-140.

[13] Para. 132. The Court explicitly distinguishes the case from La Rose v. Canada, in which the Applicants did not challenge a specific legislation or governmental action, but rather the totality of Canada’s response to climate change.

[14] Paras. 137-38.

[15] Paras. 141-189.

[16] Para. 152, citing Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 55 and R. v. Hydro-Québec, [1997] 3 S.C.R. 213, at para. 127.

[17] Paras. 154-156.

[18] Paras. 157-59.

[19] Para. 166.

[20] Paras. 172-189, especially para. 186.

[21] Paras. 190-237.

[22] 2008 ONCA 538, 91 O.R. (3d) 412.

[23] Paras. 201-207.

[24] Para. 196.

[25] Para. 226. This differentiates the case from La Rose v. Canada, in which Canada has not adopted an encompassing greenhouse gas reduction scheme which could be subjected to Charter review.

[26] Paras. 227-236.

[27] Paras. 249-253.

[28] Para. 250.

[29] Paras. 254-259, especially 257.