An Ontario appeal court ruling could pave the way for climate-related legal challenges across the country.
On Thursday, the Ontario Court of Appeal unanimously agreed a lower court erred by rejecting the youth-led constitutional challenge to the province’s climate action. Now the case, called Mathur v. Ontario, will be reheard, although a date has not yet been set.
“This is an important day for climate justice, it's an important day for government accountability, and the fight goes on,” said Nader Hasan, a lawyer with Stockwoods LLP who represented the seven young people fighting the province. “Ontario's highest court made it clear that government conduct, as it relates to climate change, is subject to judicial scrutiny and can be reviewed by the courts… So I expect all governments across the country to take note of this, and I'm hopeful that this case will serve as a blueprint for further legal action across the country.”
The case centres on Premier Doug Ford’s decision in 2019 to gut the province’s emissions reduction target from 37 per cent below 1990 levels by 2030, to 30 per cent below 2005 levels by the same year. In practice, the revised target would allow an additional 200 megatonnes of greenhouse gas pollution by decade’s end, comparable to 47 million gas powered cars driven for one year.
The first-of-its-kind constitutional challenge argued the weakened target would dangerously expose people to higher levels of emissions, putting their health at risk, while exacerbating extreme weather, and is therefore a violation of their Charter rights to life, security of person and equality.
York University and Osgoode Hall law professor Barnali Choudhury told Canada’s National Observer the ruling will make it more difficult for governments to slow climate action, once in progress.
That’s because a major question in the case rests on what a government’s obligation to fight climate change is. Ontario voluntarily committed to fight climate change, and the question at hand is whether its failure to comply constitutes a violation of the appellants’ rights, the Appeal Court’s decision found. In other words, it’s not about whether a government is legally required to fight climate change, but rather, once it has committed to doing so, are the measures it takes subject to legal scrutiny?
“The court makes clear that there is no obligation for a government to take a positive action, but once it’s taken an action, such as legislating climate emissions, it has to ensure that the legislation is Charter-compliant,” Choudhury explained. “That means if Pierre [Poilievre] and friends weaken any climate change related legislation, they should expect a challenge that in doing so they have made the legislation Charter-non compliant.
“This doesn’t mean they can’t weaken the legislation (the Charter specifies that Charter rights can be limited in certain scenarios), but this case has certainly made it more difficult to arbitrarily do so,” she said.
Ontario Attorney General press secretary Jack Fazzari said the Court of Appeal did not rule on the constitutionality of Ontario’s climate targets, and that the matter has been sent back to the Superior Court for a new hearing.
“Ontario is a leader in tackling climate change, with 86 per cent of Canada’s total emissions reductions attributed to our province's efforts,” he said. “We are on track to meet emissions reduction targets and will continue to build on our success by ensuring Ontario remains a global leader.”
Hasan said Ontario tried to dodge accountability in the courtroom using legal technicalities, but “one by one the dominoes have fallen.”
“Ontario's position has essentially always been that even though climate change is real, even though it's catastrophic, even though it's a threat to all of us, Ontario should nonetheless be immune from judicial scrutiny when it comes to its actions on climate change,” he said.
“Now they have to meet us on the science and the evidence, where they know they are weak, because climate change is a reality and the science backs that up, and Ontario knows this.”
Extreme weather and environmental racism
Celebrating the court win, young people involved in the case cited extreme weather and environmental racism in their rationale for fighting the Ontario government’s weakened climate targets.
Sophia Mathur, who was 12 years old when the challenge was launched in 2019, said she joined the case because the climate crisis is impacting everyone, and she personally has seen the danger firsthand. She described her home in Sudbury being “walloped” by record snowfall, and “rapid thawing and freezing cycles” in the winter of 2019.
“We had to evacuate our home, and rebuild our roof and walls after they buckled under a metre of ice and snow,” she said. Her family lived in a hotel for six months while the damage was repaired.
“I believe that our case can make a real difference for young people in Canada, and put Ontario back on track to take real climate action, and start working for a safer future,” she said.
Another young person fighting Ontario is Beze Gray from the Aamjiwnaang First Nation, who described growing up in Ontario’s Chemical Valley and witnessing the health impacts of the country’s largest concentration of refineries.
“I've experienced environmental racism first hand,” they said. “The impacts of the refineries show up in foods and plants, restricting my community's access to traditional food sources and causing havoc on the lives of Indigenous people.”
Earlier this year, the Aamjiwnaang First Nation issued an emergency alert to community members after dangerously high benzene levels polluted the air, leading to Aamjiwnaang First Nation elected councillor CJ Smith-White to say “our lands have become a sacrifice zone for the benefit of industry.”
Ecojustice lawyer Fraser Thomson called the ruling an “important win.”
“By confirming that the Charter applies to Ontario's inadequate target, and that Ontaio's failure to act on climate change is risking the lives and wellbeing of its citizens, this ruling boxes Ontario in a corner,” he said.
“For the last 30 years, politicians and governments around the world have delayed action, deceived the public, and fuelled the climate crisis,” he said. “The consequences of these failures play out almost daily, with severe heat waves, catastrophic storms and out of control wildfires.
“This is the perilous future the youth of today, and especially Indigenous youth, face.”
The Mathur v. Ontario case is just one example of environmental advocates using the courts to force stronger climate action.
There are 2,666 climate related litigation cases around the world, according to a Global Climate Change Litigation database maintained by Columbia law school’s Sabin Centre for Climate Change Law. The majority of those cases (70 per cent) have been filed since 2015 –– the year the Paris Agreement was signed. The majority of the total cases are also occurring in the United States (1,745), followed by the U.K (139), Brazil (82) and Germany (60). According to the database, Canada has had 38 climate-related cases to date.
As previously reported by Canada’s National Observer, the International Court of Justice (ICJ), housed in The Hague, is set to decide what legal obligations countries have to respond to climate change. In December, the ICJ will begin hearings to answer two broad questions. The first is, what are the obligations of states under international law to protect the climate from human-caused greenhouse gas emissions? The second: what are the legal consequences for failing to act?
The ICJ’s answers to those questions will be in the form of an advisory opinion. It would be non-binding, but nonetheless would clarify countries’ legal responsibilities, and is widely expected to influence international climate change negotiations.
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