Ontario’s top court says government climate action subject to the Charter

A court decision finding that Ontario’s climate action is subject to the Charter of Rights and Freedoms could have implications for federal political parties seeking to reverse the existing federal climate measures.

Last week, the Ontario Court of Appeal ruled in favour of a youth-led climate lawsuit against the provincial government, which argues that its decision to do away with the province’s carbon pricing program with the Cap and Trade Cancellation Act (CTCA) in 2018 and weaken its 2030 climate target violates their Section 7 and Section 15 Charter rights.

The Court rejected Ontario’s argument that its climate actions were not subject to the Charter. While this issue has been raised in other cases amid questions of justiciability and during motions to strike, this “landmark ruling” is the first time a court has ruled on a full evidentiary record and said a government's climate record and action is subject to the Charter, says lawyer Fraser Thomson of Ecojustice, which is backing the seven young applicants, along with Stockwoods LLP, in Mathur v. Ontario.

In its unanimous decision, the Court was clear this is not a positive rights case, as the application does not seek to impose any new positive climate obligations on the province.

"By enacting the CTCA, Ontario voluntarily assumed a positive statutory obligation to combat climate change and to produce the Plan and the Target for that purpose,” the Court said. "Ontario was therefore obligated to produce a plan and a Charter-compliant target.”

Nick Daube, counsel at Resilient LLP, says this “is very significant” coming from the province’s top court, and the ripple effects will be felt beyond Ontario.

“There’s obviously a lot that's in flux politically at the moment,” says Daube, who was director of policy to Ontario’s environment and climate change minister during the implementation of the province’s first carbon pricing regime.

“So, if the objective (of federal parties) is to remain in the climate space but retrench on some of what the Liberals have put in place, I think cases like this will just invite more and more litigation.”

And while axing the federal carbon tax might not be so straightforward in light of this decision, Daube says it goes beyond that to include clean energy regulations, a cap on oil and gas emissions, climate taxonomies and climate disclosures.

“There's a lot in there where the federal government has its paddle in the water, so it’s arguably engaged. For any new government, it's going to be hard politically to abandon the field completely,” he says.

“Decisions like this really complicate some of the political questions that opposition parties may be facing at the moment.”

Mathur was launched in 2019. It was heard before the Ontario Superior Court two years ago, which dismissed the application in the spring of 2023. The appeal of that lower court decision went ahead this past January. The three Ontario appeal court judges have now returned the matter to Superior Court for another look.

While the case still has a long road to travel, the Court of Appeal’s finding is something that others can use in their efforts to hold governments in other parts of the country accountable for climate action—or a lack thereof.

“This really puts all governments on notice that they cannot continue to fuel the climate crisis without risking similar lawsuits under the Charter,” Thomson says.

He notes that since the youth first launched the case, Ontario has fought against it moving forward, arguing it was not justiciable, that this was a positive rights case, and that there was no possible remedy in the matter. One by one, each of these legal barriers has fallen.

“It’s an important moment for climate justice and an important moment for government accountability.”

Christie McLeod, an associate with Miller Thomson’s advocacy group in Vancouver and director with Lawyers for Climate Justice, agrees.

She points to Ontario's argument that its emissions didn’t matter, its climate target was meaningless, and it didn’t have to comply with any target it set — which the both courts rejected.

“That’s really important because Canada has been setting and failing to meet its emission targets since I was a toddler and before any of the applicants in this matter were even born,” McLeod says.

It’s also significant that the Court of Appeal echoed the lower court’s rejection of Ontario's claim that its target and climate legislation didn't cause or worsen climate change, recognizing that emissions transcend borders.

“The causation argument has been a big hurdle historically,” she says.

“Here, (both courts stated) that each province's emissions contribute to climate change, and that Ontario's failure to set a more stringent target was contributing to an increase in the risk of death and the security of the person.”

In a statement, a spokesman for Ontario’s attorney general said the Court of Appeal made no decision on the constitutionality of Ontario’s climate change plan or target.

“Ontario is a leader in tackling climate change, with 86 per cent of Canada’s total emissions reductions attributed to our province's efforts,”  press secretary Jack Fazzari wrote.

"We are on track to meet emissions reduction targets and will continue to build on our success by ensuring Ontario remains a global leader.”

Mathur is part of a growing wave of global climate litigation in recent years. Daube says climate lawsuits differ from legal efforts in other areas, as they take place in a broader context, with significant learnings being passed from jurisdiction to jurisdiction. The cases are underpinned by science, which is also international and, at this point, irrefutable.

In many instances, it’s youth driving challenges to government failures to reduce emissions and limit global warming.

“I think it's important to recognize that,” says McLeod.

“It's really troublesome that youth have been put in this position to have to bring a lawsuit as a child or a young adult, especially because there has been a scientific consensus that our world is warming due to human action for several decades now. We should thank them for what they’re doing.”

Thomson says their clients are emerging as climate leaders.

“They have shown how crucial the voice of youth is in pushing forward the fight against climate change,” he says.

“Ultimately, youth have the most to lose from a world engulfed in climate chaos, and they know that. They know the science, they see it in their communities and the impacts that are being felt. They are bringing hope to this fight because they know that it's a battle that will determine their future. They are empowered, and they believe that they can win.”

As for when things might move forward, Thomson says the hope is for as soon as possible.  

“We're in a climate emergency and have no time to waste.”