It is unsurprising that children and youth are at the heart of recent efforts to advocate for solutions to the continuing global crisis connected with climate change. After all, they have the most to lose. In an article I wrote last year, I observed that attempts to promote government action to control greenhouse gas emissions and limit the intergenerational effects of climate change through litigation had not yet yielded positive results in Canada. However, efforts to secure climate action and promote climate justice through the courts continue and the Ontario Court of Appeal’s October 2024 decision in Mathur v. Ontario has opened the door to further judicial consideration of the issue.
Seven young Ontarians, between the ages of 12 and 24, some of whom are Indigenous, initiated the application in Mathur in 2019. The case focuses on Ontario’s target for reducing greenhouse gas emissions, provisions of the legislation under which that target was set (and that repealed earlier climate change legislation prescribing a higher target), and the Province’s climate action plan.
In Mathur, the applicants seek several declarations including that the Province’s emissions reduction target is unconstitutional and violates the rights of Ontario’s youth and future generations under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. They also challenge the constitutionality of the enacting legislation and request an order requiring Ontario to set a science-based emissions reduction target and to revise its climate change plan to reflect international standards.
In November 2020, the Mathur application survived a motion to strike, under R. 21 of the Rules of Civil Procedure. In dismissing the motion, the judge found that it was not plain and obvious that the application disclosed no reasonable cause of action or had no reasonable prospect of success.
In an April 2023 decision, following a trial on the merits, the application judge expressed sympathy for the young litigants. However, she ultimately dismissed their application. The application judge agreed that climate change disproportionately affected youth. However, she characterized the application as a positive rights case, and noted that the Charter does not impose a positive obligation on Ontario to take specific action to address climate change. The application judge concluded that any deprivation of the applicants’ rights to life or security of the person was not contrary to the principles of fundamental justice under ss. 7 and 15 of the Charter.
On appeal, the Court of Appeal rejected the application judge’s classification of the application as a positive rights case. The Court found that the Province voluntarily assumed a positive statutory obligation to combat climate change and produce a target and a plan directed at this goal. In doing so, Ontario was also required to ensure its target and plan were Charter compliant. According to the Court of Appeal, given the application judge’s erroneous approach, the question of whether the target and the plan violate the Charter remains outstanding.
As it has proceeded, the Mathur case has attracted an increasing list of interveners.1 In its reasons, the Court of Appeal observed that interveners had raised several relevant important issues that had not been considered by the application judge, including whether the target breached the Charter rights of Indigenous peoples in Ontario and their s. 35 rights under the Constitution Act, 1982. Another issue in the list is the application of the best interests of the child principle.
Although the Court allowed the appeal, it declined to decide the application and instead remitted the matter for a new hearing before the same or another justice of the Superior Court. In doing so, the Court of Appeal observed that courts of first instance have a significant institutional advantage in making determinations necessary to fair treatment of ss. 7 and 15 claims. The Court also noted that if the appellants wish to add additional issues raised by the interveners they would have to obtain leave to amend their notice of application and may have to amplify the evidentiary record.
Five years after Mathur v. Ontario commenced, the case continues to highlight the complexity of issues connected with climate change, particularly as it impacts the rights of children and youth. Media interest generated by Mathur v. Ontario’s progress through the courts has also served to increase public awareness of the risks of climate change to the health and quality of life of children and youth. Whatever the eventual outcome of Mathur v. Ontario, the young applicants have demonstrated an impressive commitment towards fighting climate change on behalf of Ontario’s children and youth of the present and the future.
About the Author
Laura Pettigrew is General Counsel with the Office of the Ontario Ombudsman.
The views expressed are those of the writer and do not necessarily represent the views or opinion of the Office of the Ontario Ombudsman.
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