The Court of Appeal for Ontario (ONCA) today released its unanimous decision (the Decision) on an appeal of the dismissal of a youth-led constitutional challenge of Ontario’s emissions target (see our earlier bulletin here). The ONCA allowed the appeal, determining that the Ontario Superior Court (ONSC) application judge erred in characterizing the case as a positive rights case and remitted it to the ONSC for reconsideration. The case is the first in Canada to consider whether a government’s approach to climate change can violate the Canadian Charter of Rights and Freedoms (the Charter). This bulletin briefly provides key background details of the case and the main findings of the Decision.
 
Background. The appellants, seven Ontario youths, some of whom are Indigenous, brought an application for (i) a declaration that Ontario’s 30% reduction of greenhouse gas (GHG) emissions target (the Target) under section 3(1) of the Cap and Trade Cancellation Act, 2018 (the CTCA) – implemented through Ontario’s “A Made-in-Ontario Environmental Plan” (the Plan) – and section 16 of the CTCA, repealing Ontario’s Cap-and-Trade system, were unconstitutional as they violated their rights under sections 7 and 15 of the Charter, and (ii) an order declaring their Charter rights have been violated and requiring Ontario to set a science-based emissions reduction target and to revise the Plan in accordance with international standards. The application judge dismissed the application. While the judge found the issue of the appellants’ sections 7 and 15 Charter rights justiciable, she characterized it as a positive rights claim and concluded that any deprivation of life or security of the person under section 7 was not contrary to fundamental justice, and that section 15 did not impose a positive duty on Ontario to act against climate change.
 
The Decision. The following is a brief overview of the ONCA’s main findings:

  • The application judge erred in her analysis of the case as the question before the court was not whether the Target did not go far enough in the absence of a positive obligation to do anything. Instead, the correct question to consider was whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed under the CTCA, the Target was Charter compliant.
  • The application judge’s mischaracterization of the issue caused her to err in her analysis of whether the Plan and the Target deprived the appellants of life or security of the person and, if so, whether the deprivations suffered were in accordance with the principles of fundamental justice against arbitrariness and gross disproportionality.
  • The application judge failed to address whether there was a link or nexus between the impact of the Target and the disproportionate impact based on a protected ground under section 15.
  • The application judge’s conclusion about causation under section 15 that climate change, and not the Target, the Plan, or the CTCA, disproportionately impacts young people was difficult to reconcile with her conclusion about causation under section 7, namely, that by failing to produce a Target that would further reduce GHG emissions, Ontario is contributing to an increase in the risk of death and in the risks disproportionately faced by the appellants and others with respect to the security of the person.
  • There are clear international standards based on accepted scientific consensus that can inform what a constitutionally compliant Target and Plan should look like (including Canada’s 2030 target of a 40–45% reduction from 2005 under the “international standard” of the Paris Agreement).

As a result of the findings and the determination that the application erred in characterizing the case, the ONCA remitted the application for reconsideration by the same or another justice of the ONSC.
 
Increasing youth-led climate litigation. The Decision joins other Canadian youth-led climate cases, including La Rose v. Canada where the Federal Court of Appeal recognized that there may be viable challenges to climate change legislation under section 7 of the Charter, and ENVironnement JEUnesse v. Procureur General du Canada where the Quebec Court of Appeal affirmed the lower court judge’s decision to decline to authorize a climate change-related class action against the Canadian government on behalf of Québec citizens aged 35 and under.
 


For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.

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