Mathur et al: Youth climate litigation against Ontario government found to be justiciable but dismissed for failing to establish charter violations

• Law Firm: Miller Thomson LLP
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Class Actions, Trials & Appeals & Compensation, Climate Change
• Author: Christie McLeod, Annafaye Dunbar and Rosemarie Sarrazin
• Published date: 04 May 2023

On April 14, 2023, the Ontario Superior Court (the "ONSC") released its highly-anticipated decision in Mathur et al v His Majesty the King in Right of Ontario [Mathur et al] in which it held that, although the Application raised justiciable issues, the Applicants had not established any violations of sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter") and dismissed the Application.¹

The lawsuit, initially filed in late 2019 by Ecojustice and seven youth environmental activists against the government of Ontario, challenged the constitutionality of the government's weakened 2030 greenhouse gas emissions ("GHG") reduction target. The target was set pursuant to the Ontario government's adoption of the Cap and Trade Cancellation Act (the "Cancellation Act") in 2018, which repealed the Climate Change Mitigation and Low-carbon Economy Act and nullified the emissions reduction target it had set out for Ontario to reduce its emissions by 45 percent below 2005 levels by 2030. The Cancellation Act set a new and substantially weaker target of reducing emissions in Ontario by 30 percent below 2005 levels by 2030 (the "Ontario Target"). The Applicants argued, among other things, that the adoption of the Ontario Target was insufficient to effectively combat climate change, such that it violated the rights of Ontario youth and future generations under sections 7 (life, liberty and security of the person) and 15 (equality) of the Charter. The applicants specifically sought:

• a declaration that the Ontario Target was unconstitutional;
• a declaration that sections 3(1) and/or 16 of the Cancellation Act were unconstitutional;
• an order directing Ontario to set a revised science-based target consistent with its share of the minimum level of emissions reduction needed to limit change in accordance with the commitments made under the Paris Agreement; and
• an order directing Ontario to revise its climate change plan under section 4(1) of the Cancellation Act after setting a revised target.²

In response to the Application, the Attorney General of Ontario brought a motion to strike the claim on the grounds that the issue was not justiciable (i.e. not suitable for judicial determination). Justice Brown denied this motion for the ONSC in Mathur v. Ontario, finding that the application was prima facie justiciable.³ The case was then heard on its merits in September 2022. The Mathur et al case was the first climate lawsuit based on the Charter to reach a full hearing and be heard on its merits in any Canadian court.

Justiciability hurdle overcome

Justice Vermette first considered whether the case was justiciable and concluded that the Charter issues raised by the Applicants were challenging specific state action and legislation and were thereby justiciable.⁴ She noted, however, that the issue of determining Canada and Ontario's "fair" shares of the remaining carbon budget was an issue "that should be determined in another forum" and was not a justiciable matter.⁵

Justice Vermette's finding that the Mathur et al claim was justiciable mirrored a recent finding from Justice Basran at the BC Supreme Court in Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy) [Sierra Club].⁶ In this case, the Sierra Club of British Columbia Foundation ("Sierra Club of BC") sought a declaratory judgment that the Minister of Environment and Climate Change Strategy (the "Minister") had breached its statutory obligations to prepare an annual climate accountability report pursuant to the Climate Change Accountability Act, SBC 2007, c. 42 ("CCAA") by failing to include plans to continue progress towards achieving the 2025, 2040, 2050, and oil and gas sector targets in its reporting materials.

Justice Basran concluded that as the reporting requirements of the CCAA were sufficiently clear and could be enforced by the courts, the Minister's compliance with the reporting requirements of the CCAA was a justiciable issue. Here, Justice Basran noted that if the Sierra Club of BC had sought to evaluate whether the policies would reduce emissions and achieve the targets identified by the Minister, this would not have been a justiciable issue.⁷ Despite this finding of justiciability, the Court held that the CCAA did not require the Minister to include specific percentages of target achievement and found that the Minister had complied with its statutory reporting obligations under the CCAA and denied Sierra Club of BC's petition.⁸

While neither Mathur et al or Sierra Club were successful on the merits, the findings of justiciability were a significant departure from the line of climate cases in Canadian courts which have been preliminarily dismissed on this procedural ground.

In La Rose v Canada ⁹ (which we wrote about in a previous issue), a group of fifteen Canadian youth alleged that Canada was:

• continuing to cause, contribute to, and allow a level of GHG emissions that is incompatible with a stable climate system;
• adopting GHG emission targets that failed to match the level of ambition dictated by the best available climate science;
• ...