Climate Change Suits Against the Government: Mathur v. Ontario Appeal Decision
The Court of Appeal for Ontario has released its appeal decision in Mathur v. Ontario involving a lawsuit by youth applicants challenging as inadequate Ontario’s legislated targets and plans for reducing greenhouse gas (GHG) emissions. Although it allowed the appeal in favour of the applicants, the Court of Appeal declined to decide the constitutional issues, instead sending the matter back to the court of first instance to determine them afresh.
As we wrote last year, the youth applicants sought a court order requiring the Ontario government to set a “science-based [GHG] reduction target that is consistent with Ontario’s share of the minimum level of [GHG] reductions necessary to limit global warming to below 1.5 [degree Celsius] above pre-industrial temperatures”. The application judge held that the application was an impermissible “positive rights” case, and dismissed it. The Court of Appeal disagreed, holding that the “application does not seek to impose on Ontario any new positive obligations to combat climate change”, since Ontario voluntarily assumed those obligations when it passed its climate change legislation. The Court of Appeal held that Ontario, through its legislation, was “obligated to produce a plan and a target that were Charter compliant” and sent the matter back to the court of first instance to address whether Ontario’s legislated targets and plans were Charter compliant.
Background
The application concerned provincial legislation passed in 2016 that implemented a cap and trade program for GHG emissions, and subsequent legislation, the Cap and Trade Cancellation Act, 2018 (CTCA) passed by the then-newly elected Ontario provincial government. The CTCA repealed the 2016 legislation and stated that the new Ontario government would establish its own targets for the reduction of GHGs. The government later released a plan that set a more lenient target for GHG emission reductions than had been in effect under the 2016 legislation. In effect, the lawsuit sought to force the government to set more stringent targets for GHG emissions. To support their lawsuit, the applicants tendered expert evidence regarding the impacts of climate change and what they alleged was Canada’s and Ontario’s “fair share” of future carbon emissions. The application judge made numerous factual findings about climate change, including that because of it, the applicants and Ontarians in general “are experiencing an increased risk of death and an increased risk to the security of the person.”
The Court of Appeal’s Decision
The applicants alleged that the CTCA violated section 7 of the Charter, i.e., their right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice. They also alleged that the CTCA violated section 15 of the Charter, which provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law.
The Court of Appeal noted rulings from the Supreme Court of Canada that sections 7 and 15 of the Charter did not impose positive obligations on the state to ensure that each person enjoys life, liberty or security of the person or to remedy social inequality or enact remedial legislation. It held that, since the Ontario government chose to legislate regarding climate change through the CTCA (i.e., the CTCA stated that the Ontario government would establish GHG reduction targets), the court was obligated to decide whether that legislation violated the Charter. The Court of Appeal did not decide the Charter issues raised, but remitted the matter back to the court of first instance in recognition of that court’s “institutional advantage in making the findings necessary to fairly determine whether the appellants’ rights were breached”.
One interesting question raised by the case is whether it would be Charter compliant for the Ontario government to amend the CTCA to remove the requirement for the Ontario government to establish any GHG reduction targets at all (i.e., to cancel the previous 2016 legislation without implementing any new requirement for GHG reduction in Ontario). The application judge had held that a “mere change in the law cannot be the basis for a Charter violation”, which implied that it would be permissible for a government to do just that without violating the Charter. Despite the importance of this question, especially given that the federal government’s “carbon tax” faces the prospect of being “axed” if it loses the next federal election, the Court of Appeal’s decision left the question undecided.
Positive Rights
It can be difficult to grasp what might be a “positive right” under constitutional law. A review of another climate lawsuit brought by youth in Montana may be illustrative.
The Montana state government enacted provisions in Montana’s State Energy Policy and the Montana Environmental Policy Act (MEPA) that forbade the state or its agents from considering the impacts of GHG emissions or climate change in their environmental reviews. In 2020, sixteen Montana youth challenged the constitutionality of those state provisions. The Montana government doubled down and passed in 2023 a clarification that explicitly prohibited Montana’s agencies from considering “an evaluation of [GHG] emissions and corresponding impacts to the climate in the state or beyond the state’s borders” in their MEPA reviews. In its 2023 decision in Held v. Montana, the Montana First Judicial District Court held that the legislation in question was unconstitutional, and permanently enjoined it from being enforced. The Montana court noted that Montana’s constitution protected a right to a clean and healthy environment, and that the state must have discretion to act (i.e., by denying permits for fossil fuel activity) when the activities would result in GHG emissions that caused unconstitutional degradations of Montana’s environment or infringe the rights of Montana’s children or youth.
The Montana court did not instruct the Montana government positively on how it had to act to address climate change; rather, it prevented the government from deploying legislation that violated the constitutional rights of its citizens. In this way, Held v. Montana appears to be a familiar exercise of a court’s unquestionable powers to invalidate legislation that infringes constitutional rights.
Closing Considerations
Despite numerous court rulings, no litigant in Canada has successfully challenged alleged government action or inaction on climate change-related matters. Nevertheless, litigants continue to look for avenues to impose responsibility for climate change on governments and require them to take robust action to mitigate GHG emissions. Goodmans will be watching with interest as these issues develop.
For more information concerning climate change or how it may impact businesses, please contact any member of our Litigation and Dispute Resolution or Environmental groups.
Authors
Insights
-
Capital Markets
Canada Initiates Consultations and Proposes New Measures to Strengthen Anti-Modern Slavery Efforts
The Fighting Against Forced Labour and Child Labour in Supply Chains Act (the “Act”) came into force on January 1, 2024, implementing enhanced reporting requirements for certain entities to combat… -
Intellectual Property Litigation
Rise of Trademark Phishing Scams
There has been a reported surge in trademark phishing scams. The Canadian Intellectual Property Office (“CIPO”) issued a statement warning of an email phishing scam targeting members of the public by… -
Litigation and Dispute Resolution
Climate Change Suits Against the Government: Mathur v. Ontario Appeal Decision
The Court of Appeal for Ontario has released its appeal decision in Mathur v. Ontario involving a lawsuit by youth applicants challenging as inadequate Ontario’s legislated targets and plans for… -
Capital Markets
Clarification on Rules Relating to the Removal of Directors by Shareholders
In OneMove Capital Corporation v. Dye & Durham Limited (“OneMove v. D&D”), the Ontario Superior Court of Justice (the “Court”) held that shareholders may not submit a proposal under section… -
Capital Markets
Delaware Court Finds Advance Notice Bylaw Amendments Unenforceable, But Denies Relief Based on Dissident Shareholders’ Deceptive Conduct
The Supreme Court of Delaware’s recent decision in Kellner v. AIM ImmunoTech Inc. provides important guidance on the limits of a board’s authority to amend an “advance notice” bylaw in the context of… -
Litigation and Dispute Resolution
No “Magic Words” Required: Supreme Court of Canada Holds Exclusion Clauses Released Seller From Implied Statutory Conditions
On May 31, 2024, the Supreme Court of Canada released its decision in Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, which clarifies how contractual exclusion clauses are to…
Featured Work
-
Mergers and Acquisitions
Apotex Inc. acquires Searchlight Pharma Inc.
Goodmans LLP advised Apotex Inc. in connection with its acquisition of Searchlight Pharma Inc… -
Shareholder Activism
Browning West achieves landmark victory in Gildan Activewear proxy campaign
Goodmans LLP acted for Browning West, LP in the successful reconstitution of Gildan Activewear’s entire board, culminating in the reinstatement of CEO Glenn Chamandy… -
Restructuring
LoyaltyOne cross-border restructuring
Goodmans LLP is counsel to KSV Restructuring Inc. in its capacity as court-appointed monitor of LoyaltyOne, Co. in its restructuring proceedings under the Companies’ Creditors Arrangement Act before… -
Mergers and Acquisitions
Neighbourly Announces Successful Closing of Take-Private Transaction with Persistence Capital Partners
Goodmans LLP advised Brookfield Asset Management Ltd., through its Special Investments program, in connection with its structured equity investment of $320 million to partially fund the take-private… -
Mergers and Acquisitions
Forum Energy Technologies acquires Variperm Energy Services
Goodmans LLP advised Forum Energy Technologies, Inc. in the acquisition of Variperm Energy Services… -
Shareholder Activism
Aimia Inc.'s largest shareholder, Mithaq, plans takeover bid
Goodmans LLP represented The Special Committee of the Board of Directors of Aimia Inc., in connection with an unsolicited takeover bid for Aimia by Mithaq Capital, Aimia's largest shareholder…
News & Events
-
Intellectual Property Litigation
Goodmans Lawyers Recognized in the Lexpert Special Edition: Litigation 2024
We are pleased to announce the Lexpert Special Edition: Litigation 2024 continues to feature Goodmans lawyers among Canada's experts in litigation.Congratulations to our 10 featured lawyers:Andrew… -
Banking and Financial Services
Goodmans Once Again Receives Top-Tier Recognition from The Legal 500 Canada
We are pleased to announce Goodmans LLP has once again received top-tier recognition from The Legal 500 Canada in their 2025 Guide released today.Recognition from The Legal 500 is based on independent… -
Banking and Financial Services
Goodmans Recognized in the Inaugural Edition of Best Law Firms - Canada 2025
Goodmans is delighted to share we are featured in the inaugural edition of Best Law Firms - Canada 2025, recognizing us as one of the country’s exceptional law firms across 40 industries and practices…