Age-discrimination-based Charter challenge brought against Ontario for emissions-reduction target
While a group of Ontario young people were recently unsuccessful in their Charter challenge of the province’s greenhouse-gas-emissions (GHG) reduction targets, the ruling included useful findings for climate-change related litigation, says Christie McLeod, an associate at Miller Thomson in Vancouver.
Ontario’s Superior Court released Mathur v. His Majesty the King in Right of Ontario, 2023 ONSC 2316 on April 14. The applicants, who are between the ages of 15 and 27, challenged s. 3(1) of the Cap and Trade Cancellation Act, 2018, which lowered Ontario’s greenhouse gas emissions reduction target from 45 to 30 percent below 2005 levels by 2030.
“The judgment is a disappointing result for the applicants, but it did set important precedents both for the appeal in this case and future climate litigation suits in Canada to build on,” says McLeod.
She says the decision builds upon the Canadian caselaw recognizing the climate crisis and the role of governments to respond. In it, Justice Marie-Andrée Vermette echoed the Supreme Court of Canada’s Greenhouse Gas Pollution Pricing Act by saying that each province’s emissions contribute to climate change and Ontario’s failure to set a stricter standard “contributing to an increase in risk of death and to the security of the person,” says McLeod.
McLeod’s practice involves advising Indigenous communities and businesses on matters of environmental, Indigenous, administrative and regulatory law. In 2020, she completed the joint JD/MA in Environmental Studies program at Osgoode Hall Law School. Her MA focused on Canadian climate accountability.
McLeod is director of Lawyers for Climate Justice, a national group that engages the legal profession on climate change and believes the climate crisis raises professional and ethical obligations for lawyers. She is also involved with the Fossil Fuel Non-Proliferation Treaty initiative.
In the Mathur case, the applicants argued that the emissions-reduction target violates ss. 7 and 15 for “Ontario’s youth and future generations.” Section 7 protects the right to life, liberty, and security of the person, and s. 15 protects equality before the law.
Section 3(1) and 16 of the Cap and Trade Cancellation Act was also unconstitutional because it allowed the province to set a target that was not aligned with the standard under the Paris Agreement, “or any kind of science-based process,” the applicants said.
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The applicants asked the court for an order requiring Ontario to “set a science-based target” consistent with the province’s share of the minimum level of reductions necessary to stay within the Paris Standard.
On the s. 7 issue, Ontario said that it was not enough for the applicants to show climate change will cause future harm to Ontario residents. The applicants were required to show that the state action challenged in the application would cause or contribute to those future harms.
On s. 15, the applicants argue that the effects of climate change create a distinction based on the enumerated ground of age because younger Ontarians will suffer more significant consequences. Ontario’s response was that s. 15 does not place a positive obligation on government to eliminate inequity, and that the applicants failed to establish a distinction based on enumerated or analogous grounds because the alleged age discrimination was based on a “temporal distinction.” If the applicants were correct, any amendment to a law would create a distinction between those governed before and after the change.
The applicants also submitted that societal preservation is a principle of fundamental justice and an unwritten constitutional principle, arguing that the court should interpret ss. 7 and 15 as recognizing that the Charter must protect against state conduct that has a causal link to climate change’s catastrophic impacts.
This proposed principle was an expanded adaptation of the Charter’s “qualified right to life,” and should be rejected, said Ontario.
In her analysis of the Charter issues, Vermette made a “strong finding” that the applicants will indisputably experience an increased risk to life and security of the person due to climate change, says McLeod. But the question was whether the province’s climate target created this enhanced risk.
“[Vermette] found that the applicants made a very compelling case that the climate crisis presented special circumstances that could justify the imposition of positive obligations,” she says. “But then she ultimately found that there was no violation of s. 7 rights. She decided not to decide on whether positive obligations could be imposed under s. 7 in this case.
But the judge ultimately found that there was no s.-7 violation and did not determine the issue of whether the Charter could impose a positive obligation under the section. That Vermette left that door open was an “important finding,” says McLeod.
On s. 15, Vermette found that the applicants did not show how the emissions-reduction target created the distinction based on age. “She found that youth are disproportionately impacted by climate change and not the Ontario target.”
But Vermette, citing reports from the UN Intergovernmental Panel on Climate Change, also noted that the provincial target “falls severely short of the scientific consensus as to what is required,” says McLeod. “She found that the gap between Ontario's target and what's required based on climate science is large, unexplained ,and without any apparent scientific basis.”