Limits of Climate Change Suits Against the Government: Mathur v. Ontario Decision
The Superior Court of Justice has now released its decision in Mathur v. Ontario, a case we wrote about earlier this year and which is now a further example of an unsuccessful claim against a government in respect of climate change. The lawsuit involved an application brought by seven Ontario youth claiming, among other things, that Ontario’s legislated targets and plans for reducing greenhouse gas (GHG) emissions were not stringent enough to combat climate change and, therefore, infringed their constitutional Charter rights. Although the Court had sympathy for many of the applicants’ arguments and held that most of the issues raised by the applicants were justiciable by the Court, it nevertheless dismissed the application as it found no Charter violations.
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legislation, the Cap and Trade Cancellation Act, 2018 (CTCA) passed by the newly elected provincial government that repealed the 2016 legislation and set out a plan to meet a more lenient target for GHG emission reductions. 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.
Justiciable
With respect to allegations that the government’s actions were unconstitutional, the Court held that the applicants had challenged specific state action and legislation (i.e. the CTCA and the subsequent lower GHG targets set by the government) and, therefore, the issues raised regarding Charter violations were justiciable – i.e., that the issues were suitable for judicial determination.
The only issue the Court did not find justiciable was the applicants’ argument that the Court should determine Canada and Ontario’s “fair share” of future worldwide carbon emissions. The Court noted there is more than one way to determine carbon budgets and allocation, and “this issue does not have a sufficient legal component to allow this Court to choose among competing approaches.”
Charter Claims
The Court addressed various Charter arguments, primarily related to whether there were violations of Sections 7 and 15. Notable aspects of the decision were as follows.
The Court quickly rejected the applicants’ argument that the government’s action to repeal the cap and trade program and enact the subsequent CTCA was unconstitutional. It concluded that a “mere change in the law cannot be the basis for a Charter violation”.
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. The Court characterized the applicants’ claims as alleging the government was not doing enough to protect their right to life, liberty and security of the person, but the Court ultimately held that the applicants had not demonstrated any deprivation was contrary to the principles of fundamental justice. The Court’s analysis about causation was especially notable, as the Court rejected the government’s argument that there was no causal connection between the government’s target for reducing GHC and mitigating the effect of climate change.
The Court found that by not taking steps to reduce GHG emissions in Ontario further, the Ontario government was contributing to an increase in the risk of death, and that while Ontario’s contributions to global warming “may be numerically small, it is real, measurable and not speculative.” The Court also rejected that a so-called “societal preservation principle” was a principle of fundamental justice protected by section 7 of the Charter. It concluded that while “societal preservation may be an important public policy and/or state interest, it is not a normative legal principle or a basic tenet of our legal system.”
The applicants 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. Their argument was based largely on evidence that climate change would disproportionately impact them, as younger people who would be exposed to the worsening effects of climate change over time. The Court stated that section 15 “does not impose a positive obligation on the state to remedy social inequalities or enact remedial obligation...” and held that the applicants had not established a violation of section 15 of the Charter.
Closing Considerations
To date, litigants in Canada have not been successful in challenging alleged government action or inaction on climate change-related matters. Nevertheless, litigants continue to look for avenues to impose responsibility for climate change and to require governments to take more robust actions to mitigate GHG emissions. The applicants have already announced they will appeal the Court’s decision. Goodmans will be watching with interest as the case moves through to an appeal.
For more information concerning climate change or how it may impact businesses, please contact any member of our Dispute Resolution or Environmental groups.
Authors
Insights
-
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… -
Capital Markets
Public Safety Canada Releases Updated Guidance on Modern Slavery Reporting Obligations
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… -
Crisis Management and Urgent Proceedings
Panoramic Next: Crisis Management 2024 - Canada Chapter
Mark Dunn and Sarah Stothart co-authored the Canada Chapter of Panoramic Next: Crisis Management 2024. Through a series of interviews with expert legal… -
Capital Markets
Modern Slavery Reporting Obligations for Canadian Entities Effective January 1, 2024
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 companies and… -
Litigation and Dispute Resolution
Director Duties and Climate Change
Decisions earlier this year from the English courts in ClientEarth v Shell Plc et al., and the recent appeal decision from the Court of Appeal of England and Wales, shed light on climate change issues… -
Intellectual Property
Canadian Intellectual Property Office Increases Fees Effective January 1, 2024
As of January 1, 2024, the Canadian Intellectual Property Office (CIPO) will be increasing most of its fees by 25%. Filing fees, renewal fees, opposition filing fees, as well as fees for initiating…
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… -
Capital Markets
Dye & Durham’s defence of requisition from Engine Capital
Goodmans LLP is acting for the board of Dye & Durham in connection with a defence of requisition from Engine Capital… -
Capital Markets
Board of WonderFi Technologies Inc.’s proxy defense from KAOS Capital and Mogo
Goodmans LLP is acting for the special committee of the board of WonderFi Technologies Inc in connection with its defense of a proxy contest launched by KAOS Capital and MOGO. KAOS Capital is a… -
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
Coinsquare, WonderFi and CoinSmart close business combination
Goodmans LLP acted for Coinsquare Ltd. in its business combination transaction with WonderFi Technologies Inc. and CoinSmart Financial Inc…
News & Events
-
Litigation and Dispute Resolution
Goodmans Welcomes Julia Martschenko
Goodmans is pleased to announce Julia Martschenko has joined the firm as an associate in the Dispute Resolution Group. Julia will be a terrific addition to our firm.We warmly welcome Julia to… -
Litigation and Dispute Resolution
Goodmans Awarded at the 2024 Benchmark Canada Awards
For the second time in as many months, Goodmans Intellectual Property Group has won multiple awards. We are delighted to share Goodmans has been honoured with two distinguished awards at the… -
Litigation and Dispute Resolution
Goodmans Recognized in the 2024 edition of Benchmark Litigation Canada
We are proud to announce that we have once again been recognized in the 2024 edition of Benchmark Litigation Canada.16 Goodmans lawyers have been recognized as being the country’s most…