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Climate Change - General. Mathur v. Ontario
In Mathur v. Ontario (Ont CA, 2024) the Ontario Court of Appeal allowed an applicant's appeal, here as to whether "the alleged failure of Ontario to comply with its voluntarily imposed statutory obligations to combat climate change amount to a breach of the appellants’ ss. 7 and 15 rights under the Canadian Charter of Rights and Freedoms".
Here the court canvasses some Ontario climate change avoidance legislation (the Cap and Trade Cancellation Act, 2018) and initial related Charter litigation:[2] In 2018, Ontario enacted the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13 (“CTCA”). Section 16 of the CTCA repealed the Climate Change Mitigation and Low-carbon Economy Act, 2016, S.O. 2016, c. 7 (“Climate Change Act”), which had contained greenhouse gas emission reduction targets, and s. 3(1) required the government to set new reduction targets (the “Target”). The Target implemented by Ontario, which is articulated in the “Preserving and Protecting our Environment for Future Generations - A Made-in-Ontario Environmental Plan” (the “Plan”), calls for a 30% reduction of greenhouse gas emissions from 2005 levels by 2030. This is a much smaller reduction than prescribed under the Climate Change Act and, according to the unchallenged expert evidence filed that the application judge accepted, falls short of the international scientific consensus of the reductions recommended to mitigate the most catastrophic effects of climate change.
[3] The appellants are seven Ontario youth, some of whom are Indigenous. They brought an application for a declaration that Ontario’s Target and the enacting provisions of ss. 3 and 16 of the CTCA are unconstitutional as they violate their rights under ss. 7 and 15 of the Charter. They seek an order declaring their Charter rights have been violated and requiring Ontario to set a science-based emissions reduction target and to revise its climate change plan in accordance with international standards.
[4] The application judge dismissed their application. While she concluded that the issue of whether the appellants’ ss. 7 and 15 Charter rights were violated was justiciable, she characterized the application as a positive rights case. She 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. As a result, she determined that the appellants’ ss. 7 and 15 rights were not breached.
[5] In our view, the application judge erred in her analytical approach. This is not a positive rights case. The application does not seek to impose on Ontario any new positive obligations to combat climate change. By enacting the CTCA, Ontario voluntarily assumed a positive statutory obligation to combat climate change and to produce the Plan and the Target for that purpose. Ontario was therefore obligated to produce a plan and a target that were Charter compliant. The application judge did not address whether Ontario failed to produce a plan and a target that was Charter compliant in accordance with its statutory mandate. As a result, the ss. 7 and 15 Charter issues raised by the appellants remain to be determined.
[6] The interveners raised relevant, important issues that were not determined by the application judge, either because they were not raised before her or did not affect her analysis, or because she declined to address them since they were not pleaded in the notice of application. They included whether the Target breached the Charter rights of Indigenous peoples in Ontario and their s. 35 rights under the Constitution Act, 1982; the integration of the public trust doctrine; the application of international law, including international environmental law, in the interpretation of Charter rights; the application of the best interests of the child principle; and the recognition and impact of certain unwritten constitutional principles, including societal preservation and ecological sustainability.
[7] For the reasons that follow, we allow the appeal. However, we decline to decide the application and to make the orders sought by the appellants in their notice of appeal. This court is not well placed to determine whether the declarations and directions sought should be granted. Although much of the expert evidence was uncontroverted, courts of first instance have a significant “institutional advantage in making the determinations necessary to a fair treatment” of ss. 7 and 15 claims: Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, 481 D.L.R. (4th) 581, at para. 176. Moreover, if the appellants wish to have the additional issues raised by the interveners adjudicated, they will have to obtain leave to amend their notice of application and the evidentiary record may have to be amplified.
[8] Consequently, while we clarify in these reasons the question that must be determined at a new hearing, we are careful not to decide that question or otherwise limit the analysis to be undertaken, including the application of s. 1 of the Charter, if pursued. Given the seriousness of these matters, the additional issues raised, and the potential need for further evidence, it would not be in the interests of justice nor practically feasible for this court to take on the role of finder of fact and conduct the required analysis: Canadian Council for Refugees, at para. 178. We therefore remit the application for a new hearing before the same or another justice of the Superior Court.
II. Background
[9] To understand the issues on appeal, we will set out a summary of the legislative and evidentiary background and the application judge’s factual findings with respect to the evidentiary record that informed her analysis and conclusions. The application record includes the legislative history leading up to the CTCA, the Plan and the Target, including international climate change conventions that informed them and the predecessor legislation that the CTCA repealed. It also includes the appellants’ expert evidence on the deleterious effects of climate change and proposed remedial action. While Ontario proffered its own expert evidence, it accepted that anthropogenic climate change is real and poses risks to human health and well-being. Further, Ontario did not argue the application of s. 1 of the Charter.
(a) Climate change legislation, international conventions, and uncontroverted evidence of harm
[10] In 1992, the United Nations adopted its Framework Convention on Climate Change, U.N. Doc. A/AC.237/18 (Part II)/Add.1, May 15, 1992 (“UNFCCC”), the objective of which was to stabilize greenhouse gas concentrations in the atmosphere. In 2015, the Paris Agreement, U.N. Doc. FCCC/CP/2015/10/Add.1, December 12, 2015, was adopted under the UNFCCC. Article 2 of the Paris Agreement calls on signatories to hold the increase in global average temperature to well below 2 degrees Celsius and pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels. Canada is a party to both the UNFCCC and the Paris Agreement. Canada’s original target was set as a 30% reduction from 2005 greenhouse gas emissions by 2030. In 2022, Canada announced a target of a 40–45% reduction from 2005 greenhouse gas emissions by 2030.
[11] The global carbon budget means total cumulative global carbon emissions. Scientists use the concept of a global “carbon budget” to define how much more carbon dioxide can be emitted into the atmosphere before certain levels of global temperature warming will be locked in and irreversible. As already noted, the scientific consensus at present is that the level of global temperature warming should be held to 1.5 degrees Celsius. Once the carbon budget is used up or exceeded, global temperatures could stabilize at a new dangerously high global temperature, even if measures are later taken to reduce global carbon dioxide emissions to net zero.
[12] The application judge accepted the expert evidence adduced by the appellants and found that it established the following:. Warming in Canada is, on average, about double the magnitude of global warming;
. Deaths in Ontario are projected to increase significantly if global temperatures rise above 1.5 degrees Celsius;
. Heat waves are increasing in frequency, which will increase heat-related morbidity and mortality;
. Climate change has increased the burden of certain infectious diseases (i.e., through ticks and mosquitos, through food and waterborne disease, and through fungus and parasites) and this burden is likely to continue to increase;
. Climate change will increase the frequency and severity of wildfires in Ontario and across Canada, and smoke will cause increasing mortality and morbidity for Ontarians;
. Climate change will increase flooding frequency and magnitude, which will lead to health risks associated with the contamination of drinking water and food, exposure to mould and carbon monoxide poisoning, and mental health issues;
. Climate change will lead to further increases in cyanobacterial blooms in Ontario, which produce toxins harmful to human and wildlife health and threaten water quality and fish stocks;
. Above 2 degrees Celsius of warming, climate change will lead to increased mercury in Ontario aquatic ecosystems, including in fish, which has been linked to a range of neurodevelopmental, cardiovascular, and immunologic effects;
. Climate change has been linked to serious and wide-ranging negative mental health impacts, including emotional reactions, depression, anxiety, post-traumatic stress disorder, grief and loss, increased drug and alcohol use, social and family stress, increased suicidal ideation and suicide, loss of cultural knowledge and continuity, and deterioration and loss of place-based connection;
. With each additional degree of warming, there is an increase in probability of large-scale displacement, regional food security crises, and climate-related violence and conflict; and
. Every incremental increase in global temperature increases the likelihood of large-scale, devastating climate tipping points being crossed. [13] The application judge further accepted the expert evidence adduced by the appellants showing that climate change has disproportionate impacts on young people and Indigenous peoples, and made the following findings:. Children are more sensitive to heat and respiratory and communicable diseases;
. Young people are especially at risk from the impacts of wildfire smoke, flooding, extreme heat, vector-borne diseases, and toxic contamination;
. Young people are more vulnerable to the impacts of climate change given increased reliance on caregivers for protection and adaptation;
. Climate change may differentially impact the mental health of children and youth;
. Indigenous youth face particular mental health challenges due to their strong ties to the land;
. Indigenous peoples in Ontario have already observed significant harmful effects from climate change, impacting food and water security and traditional and subsistence practices such as fishing, hunting, and plant harvesting;
. The loss of traditional foods and cultural practices is impacting Indigenous peoples’ mental and physical well-being; and
. Indigenous peoples are particularly vulnerable to mental health impacts of climate change, which include anxiety, depression, grief, family stress, loss of identity, increased likelihood of substance usage, and suicidal ideation. [14] The application judge concluded that: “Based on the evidence before [her], it is indisputable that, as a result of climate change, the [appellants] and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person.”
[15] The application judge noted that there is no fixed scientific formula to determine exactly what reductions must be made by Ontario to correspond with its “fair share” to reduce global greenhouse gas emissions to the scientifically accepted international standard. However, a fair inference flows from her findings, including that the Target cannot be meaningless, that there is no question that Ontario must do something. The application judge found that Ontario’s greenhouse gases contribute to climate change in a way that is “real, measurable and not speculative” and that “[e]very tonne of [carbon dioxide] emissions adds to global warming and lead[s] to a quantifiable increase in global temperatures that is essentially irreversible on human timescales.”
[16] What Ontario is prepared to do at present is reflected in the CTCA, which was enacted in 2018. Section 16 of the CTCA repealed the former Climate Change Act. The repealed Climate Change Act provided for the following emission reduction targets in Ontario in s. 6(1):The following targets are established for reducing the amount of greenhouse gas emissions from the amount of emissions in Ontario calculated for 1990:
1. A reduction of 15 per cent by the end of 2020.
2. A reduction of 37 per cent by the end of 2030.
3. A reduction of 80 per cent by the end of 2050. [17] The CTCA, in contrast, does not prescribe emissions reduction targets. Section 3(1) provides as follows: “The Government shall establish targets for the reduction of greenhouse gas emissions in Ontario and may revise the targets from time to time.” It accordingly does not itself set a new target but requires Ontario to do so.
[18] The Target is articulated in the Plan, which Ontario released a few months after the CTCA was enacted for consultation and public comment. The Plan states that it “reflects our government’s commitment to address [the] pressing challenges” Ontarians face and commits the government to “use the best science, real-time monitoring where available, and strong, transparent enforcement to protect our air, land and water, prevent and reduce litter and waste, support Ontarians to continue to do their share to reduce greenhouse gas emissions, and help communities and families prepare for climate change.”
[19] With respect to specifically addressing climate change, the Plan acknowledges the severe impacts of climate change:The climate is changing. Severe rain, ice and wind storms, prolonged heat waves and milder winters are much more common. Forests, waters and wildlife across the province are and will continue to be significantly impacted by these changes. People across the province – especially Northern communities – and all sectors of the economy are feeling the impacts of climate change and paying more and more for the costs associated with those impacts. [20] The Plan further indicates that it fulfills the government’s commitment under the CTCA: “The following chapter of our environment plan acts as Ontario’s climate change plan, which fulfills our commitment under the [CTCA]” (emphasis added).
[21] The application judge accepted that the Plan set the Target and did not, as argued by Ontario before her and on this appeal, merely refer to a non-binding, aspirational goal. In the Plan, Ontario undertakes to reduce greenhouse gas emissions by 30% below 2005 levels by 2030 – which is consistent with Canada’s commitment at the time when Canada signed on to the 2015 Paris Agreement, but a smaller reduction than under the repealed Climate Change Act and Canada’s more recent commitment to reduce emissions by 40–45% from 2005 levels by 2030. The Plan states that:Ontario will reduce its emissions by 30% below 2005 levels by 2030.
This target aligns Ontario with Canada’s 2030 target under the Paris Agreement.
This is Ontario’s proposed target for the reduction of greenhouse gas emissions, which fulfills our commitment under the [CTCA]. [Emphasis deleted.] [22] Ontario also undertakes that the Plan “will be reviewed on a four-year basis” and that Ontario “is committed to doing its part to address climate change. This includes leading by example”. Ontario’s then Minister of the Environment stated in the Plan that Ontario “will continue to do our share to reduce greenhouse gases” to achieve the Paris Agreement target, which the Plan notes “is to keep the increase in global average temperature to well below 2 [degrees Celsius] above pre-industrial levels, and pursue efforts to limit the increase even further to 1.5 [degrees Celsius], in order to reduce the risks and impacts of climate change.”
[23] The application judge observed that the United Nations’ Intergovernmental Panel on Climate Change (“IPCC”) released a report the same year the Target was set stating that global net anthropogenic carbon dioxide emissions must be reduced by approximately 45% below 2010 levels by 2030 and must reach net zero by 2050 to limit global average surface warming to 1.5 degrees Celsius. She found that the reports produced by the IPCC were a reliable and comprehensive source on existing scientific knowledge about climate change and its impacts. Based on the IPCC report, the application judge observed that Ontario would have to reduce its 2005 emissions by approximately 52% (i.e., 22% more than the 30% Target) by 2030 to limit average global warming to 1.5 degrees Celsius. She found that the gap between the IPCC prescription and the Target is “large, unexplained and without any apparent scientific basis.”
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