Taking the Temperature on Climate Change Litigation and Remedies: Mathur v. Ontario, 2024 ONCA 762

In October 2024, the Ontario Court of Appeal released its decision for Mathur v. Ontario, 2024 ONCA 762 (“Mathur”). While Mathur helps clarify when the Charter is triggered in climate litigation and the distinction between positive and negative rights claims, the relief suggested by the court may not fully satisfy the expectations of those advocating for stronger climate action.

This article addresses some of the finer points in Mathur and discusses whether the remedies ultimately suggested by the Court of Appeal are appropriate in the face of climate emergencies.

Background and Procedural History

In 2018, the Government of Ontario passed the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13 (“Bill 4”).[1] Alongside repealing the Climate Change Mitigation and Low-carbon Economy Act, 2016, S.O. 2016, c. 7 (the “Cap and Trade Act”) which had previously facilitated the creation of a cap-and-trade system for carbon emissions and contained greenhouse gas emission reduction targets, Bill 4 required the government to set a new target for greenhouse gas emissions. The Ontario Government subsequently set a new target for a 30% reduction in greenhouse gas emissions by 2030, relative to 2005 levels (the “Target”). While compliant with Canada’s commitments under the United Nations’ 2015 Paris Agreement, the Target was both less than the 37% reduction proposed under the Cap-and-Trade Act, and the 40–45% reduction pledged by the Government of Canada in 2022.[2]

The claimants, seven youth between the ages of 16 and 27, issued a notice of application in 2019, asking, in part, for a declaration that the Target violated sections 7 and 15 of the Charter, and could not be saved under section 1. The claimants also sought an order for the Ontario Government to set a “science-based [greenhouse gas] reduction target” compliant with the Charter and the Paris Agreement to limit global warming to below 2 degrees Celsius pre-industrial levels.[3]

Motion to Dismiss – Ontario Superior Court of Justice

In 2020, the Ontario Government brought a motion to dismiss the claimants’ application, arguing that the claims were non-justiciable and had no chance of success. In dismissing the province’s motion, the Ontario Superior Court of Justice (the “ONSC”) held that “the extent to which social and economic rights are incorporated into the Canadian Constitution remains unsettled” and that “courts have the institutional competence to determine these types of matters.”[4] The ONSC went on to note that any potential positive rights claim in a section 7 Charter context could be decided in special circumstances “on a full evidentiary record”.[5]

The Decision - Ontario Superior Court of Justice

In Mathur v. His Majesty the King in Right of Ontario, 2023 ONSC 2316, the court dismissed the application, holding that the cause of the purported Charter impacts (to life, security of the person, and equality) was not the Target, but climate change itself. As the Ontario Government argued:

a complete cessation of Ontario’s CO2 emissions would reduce global warming by about 0.000092ºC per year, and that the changes caused by such action would be unmeasurably small and would be vastly outweighed by emissions from other countries.[6]

On this basis, the section 15 claim was dismissed, and the section 7 claim was found to be a “positive rights claim” (i.e. one with no basis in government action). The ONSC found the section 7 claim was neither arbitrary, nor grossly disproportionate because the Target was related to the objective of, and helped to mitigate, the effects of climate change, and thus that claim was also dismissed.[7] The ONSC’s ruling was quickly appealed to the Ontario Court of Appeal.

At the Ontario Court of Appeal

Charter Analysis

The Court of Appeal reversed the findings of the Ontario Superior Court. It found the ONSC incorrectly determined that the Charter rights claimed were positive rights, and that section 7 and 15 were not impugned.

Instead, the Court of Appeal restated the correct principle, that “where the state does legislate, it must do so in a constitutional manner that complies with the Charter.”[8] The Court noted that the applicants did not “challenge the inadequacy of the Target or Ontario’s inaction, but rather argue[d] the Target itself, which Ontario is statutorily obligated to make, commits Ontario to levels of greenhouse gas emissions that violate their Charter rights.”[9]

The Target thus represented a form of state action challengeable under the Charter, as a traditional “negative” rights claim, and the Court of Appeal remitted the matter to the ONSC for proper determination of the issues. Whether a government without a state climate plan could be successfully challenged for infringing a hypothetical positive section 7 Charter right remains a question for another day.

Remedy

While the matter was remitted to the ONSC for determination, the Ontario Court of Appeal could not help but provide some comments in obiter on potentially appropriate remedies:

While we do not wish to foreclose the range of potential remedies that may be appropriate, we note that ordering Ontario to produce a constitutionally compliant Plan and Target, for instance, is no different than in Khadr, where the Supreme Court left it to Canada to determine the precise Charter compliant steps it needed to take. Similarly, in Chaoulli, while finding Charter breaches, McLachlin C.J., Major and Bastarache JJ. did not order what exact measures the Quebec government was required to implement in order to render its health care scheme Charter compliant. Whether a similar or different remedy would be appropriate in this case if the application is successful is best left for the judge hearing the application.

The Court of Appeal’s dicta hints that the judiciary not only has the institutional capacity to determine the constitutional compliance of socio-environmental policy but is also not confined to mere declaratory relief should a Charter infringement be found.

To what extent the court should supervise any policy directions to be taken by the legislature, to ensure constitutional compliance, however, is a matter of debate. In Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, the Supreme Court of Canada granted an order in mandamus for the federal Minister of Health to grant an exemption to a supervised injection site. In Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, the Supreme Court of Canada went further and upheld the decision of the Nova Scotia Supreme Court to issue a supervised injunction and retain jurisdiction to hear updates on the realization of minority language rights under section 23 of the Charter.

The Court of Appeal’s comments in Mathur suggest it endorses an approach closer to PHS than Doucet-Boudreau. Whether, in the face of a climate emergency, this is an appropriate response, will likely be the subject of future hearings in courts of law and public opinion.

The End…?

On December 16, 2024, the Ontario Government sought leave to appeal the Ontario Court of Appeal’s decision to the Supreme Court of Canada. Time will tell if Mathur represents the end of the courts’ attention to climate change litigation, or the beginning of something new.

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