The Heat Is On: The Justiciability Of Climate Claims

• Law Firm: McCarthy Tétrault LLP
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Climate Change
• Author: Mr Robert J. Richardson, Sean Petrou, Kyle McMillan, Gurvir Sangha, Stephan Possin and Val Lucas
• Published date: 03 July 2023

A recent Ontario decision held that, among other things, climate-related challenges are justiciable, opening up (at least) the possibility of increased climate change litigation in Canada.

In Mathur v. His Majesty the King in Right of Ontario,¹ a group of seven young climate change activists commenced a constitutional challenge against the Ontario government in response to legislation that substantially weakened targets for the reduction of greenhouse gas ("GHG") emissions in the province. The applicant-activists argued that Ontario's adoption of weaker GHG reduction targets would lead to climate catastrophe, violating the rights of Ontario youth and future generations under Sections 7 (life, liberty and security of the person) and 15 (equality) of the Canadian Charter of Rights and Freedoms. In response, Ontario filed a motion to dismiss the activists' challenge, arguing that the subject matter of the litigation was a policy decision that was not reviewable by the court.

Although the climate change activists in Mathur were not successful on the merits of their Charter challenge, Justice Vermette of the Ontario Superior Court of Justice held that climate change lawsuits are nonetheless justiciable, meaning that they are suitable for determination by a court. Mathur leaves open the possibility, perhaps even likelihood, of future climate change litigation against governments in Canada. Moreover, Ecojustice has announced that the applicant-activists in Mathur plan to appeal the decision on the merits.²

Although Mathur is the first Ontario decision to find that climate-related claims are justiciable, the decision comes on the heels of a British Columbia Supreme Court decision, in Sierra Club of British Columbia Foundation v. British Columbia (Minister of Environment and Climate Change Strategy), that similarly concluded a climate-related claim was justiciable (but the BC Government's challenged climate change accountability reports were reasonable).³ Our summary of Justice Basran's decision in Sierra Club can be found here.

These findings of justiciability are significant developments on the frontier of climate-related litigation in Canada, particularly where applications and claims are brought in an effort to hold governments accountable. We anticipate further develops to the doctrine of justiciability in the context of Canadian climate-related litigation.

Background

On October 31, 2018, Bill 4⁴ enacting the Cap and Trade Cancellation Act (the "CTCA") received royal assent.⁵ Section 3(1) of the CTCA provides that the Government of Ontario shall establish targets for the reduction of GHG emissions in the province.⁶ Section 16 of the CTCA repealed a previous GHG reduction target (37% below 1990 levels by the end of 2030),⁷ replacing it with a target of 30% below 2005 levels by 2030.⁸

The applicants in Mathur challenged the revised GHG reduction target, arguing that it was unconstitutional on the basis that it violated the applicants' right to life and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms as well as their equality rights under Section 15 of the Charter.⁹

The applicants' Section 7 claim was premised on the...