On April 14, 2023, the Ontario Superior Court of Justice released Mathur v. His Majesty the King in Right of Ontario, 2023 ONSC 2316, a landmark climate litigation decision. The applicants, seven Ontarians between the ages of 15 and 27, sought declarations of constitutional invalidity in relation to Ontario's legislated greenhouse gas emissions reduction target. The court expressed sympathy for the applicants' environmental concerns but concluded that it could not, based on "the current state of the law", find violations of the Charter in the circumstances before it.
The Mathur decision is the first case in Canadian history to substantively consider the intersection of climate change and Charter rights. Although the court disposed of the Charter arguments on other grounds, the court observed that the applicants had made a "compelling" case that the circumstances of climate change could impose positive obligations on the government under the Charter.
Further, the court wrote throughout its reasons that climate litigation in the Charter context raises novel considerations that may eventually require new analytical frameworks to address. Indeed, the applicants urged the court to adopt a new principle — "societal preservation" — in Canadian constitutional law. The court rejected this position, finding that this proposed principle did not meet the requisite doctrinal requirements. However, the Mathur decision confirms that Canadian climate litigation is likely to continue to generate new arguments and may result in consequent legal developments.
The Mathur application was commenced in Ontario in 2019. It sought relief in respect of the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13, which sets out the Ontario government's commitment to reduce, by 2030, greenhouse gas emissions by 30% below 2005 levels (the "Target"). The applicants requested declarations that the Target violated certain rights guaranteed by the Charter. They successfully defeated a subsequent motion to strike out the application and were granted public interest standing on behalf of "future generations".
The hearing on the merits took place in September 2022 with the participation of six interveners. The applicants' claims were chiefly grounded in sections 7 and 15 of the Charter, which protect, respectively, individuals' rights to "life, liberty and security of the person," as well as equality rights. Specifically, the applicants alleged that the Target violated the constitutional rights of Ontario's youth and future generations, and that the Target should have been set with regard to the standard set out in the "Paris Agreement" — an international agreement on climate change to which Canada is a party under the United Nations Framework Convention on Climate Change.
As a threshold issue, the court found that the Charter issues raised by the applicants were generally "justiciable"— i.e., appropriate for judicial determination.
The weight of the court's analysis related to section 7 of the Charter, which provides that the state cannot infringe individuals' rights to "life, liberty and security of the person" unless such infringement is in accordance with the "principles of fundamental justice". As stated above, the court concluded that the applicants' arguments in fact sought to impose a positive obligation on the state in respect of climate concerns. However, the court did not need to decide what effect this should have on the Charter analysis, because it found that, in any event, any deprivation of section 7 rights was Charter-compliant. This is because any such deprivation was in accordance with the principles of fundamental justice — it was neither "arbitrary" nor "grossly disproportionate", as those terms are understood in constitutional law. Importantly, the court rejected the applicants' argument that the principle of "societal preservation" should be accepted as a new principle of fundamental justice in this context.
In dismissing the applicants' arguments based on section 15 of the Charter, the court followed Supreme Court caselaw holding that this section does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation.
Of significance, the court rejected arguments that it should adopt new "unwritten" constitutional principles. The applicants sought the recognition of a principle of "societal preservation", while an intervener sought the recognition of the principle of "ecological sustainability". The court stressed the limited role of "unwritten" constitutional principles in Charter analyses, and concluded that, in light of binding Supreme Court caselaw, the adoption of these principles would not have changed its conclusion on the Target's constitutional validity.
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