Mathur Making Moves
A climate litigation decision from the Ontario Court of Appeal
Mathur v Ontario is climate litigation based on the Canadian Charter of Rights and Freedoms. It joins great company in this movement including La Rose v. Canada and Misdzi Yikh v. Canada.
The case in Mathur is brought by seven youth, claiming that Ontario's revised greenhouse gas targets in the Cap and Trade Cancellation Act, 2018 violated their rights under sections 7 and 15(1) of the Charter. The youth argue that the level of emissions permitted by the provincial government's targets would lead to serious, harmful environmental consequences, and that the impact would disproportionately harm young people like themselves and future generations.
Previously, the Ontario Superior Court dismissed the application. While the court then found that the issue of whether the appellants’ ss. 7 and 15 Charter rights were violated was justiciable, the court characterized the application as a positive rights case. The court concluded that any deprivation of the right to life or security of the person was not contrary to the principles of fundamental justice under s. 7 and that s. 15 of the Charter did not impose a positive obligation on Ontario to take any specific steps to combat climate change.
At the ONSC the court did find that the matters were justiciable and can be heard. This alone was an exciting development in law of climate litigation, as the matter of justiciablility has been a significant bar to climate litigation.
However, as the court dismissed the application, the Appellants appealed and the ONCA found that the matter was not a positive rights case, and that Ontario voluntarily took on the obligation through the passing of legislation. ONCA found that this view of the matter as a positive rights case skewed the analysis of the ONSC justice in the analysis of ss. 7 and 15. As a result the matter has been sent back to be reheard.
This decision seems to be the continuation of a trend in Canadian climate litigation that shifts away from the perspective of positive rights cases, to one which understand that the Crown can voluntarily take on these obligations. A similar decision was arrived at in La Rose v Canada, by the Federal Court of Appeal when that matter was considered on appeal from a motion to strike and was sent back to be heard on the merits.
This is really exciting! We love seeing the courts considering holding governments to account when it comes to the commitments they make to protect all of us from climate change and air pollution of greenhouse gases.
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