Judge Rejects Ontario’s Attempt to Strike Out Youth Climate Change Case

On November 12, 2020, Justice Carole Brown of the Ontario Superior Court of Justice dismissed a motion by the Attorney General of Ontario to strike out the Notice of Application in Mathur et. al. v. Her Majesty in Right of Ontario (the Application). The applicants, seven Ontario youths (the Applicants), are seeking to hold the Government of Ontario accountable for the Cap and Trade Cancellation Act, 2018 on the primary basis that it violates sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the Charter). Ontario brought a motion to strike out the case arguing that (i) the Application is not justiciable; (ii) the Application is based on unprovable speculations about the future climate consequences of the 2030 target; (iii) there is no positive constitutional obligation on Ontario to prevent harms associated with climate change; and (iv) the Applicants have no standing to seek remedies for “future generations”. Justice Brown rejected all arguments made by Ontario, finding that the 2030 target and related plan are reviewable by the courts for purposes of a Charter analysis. Justice Brown further determined that many of the claims made by the Applicants, with respect to climate change, are capable of proof and that the Applicants should be provided the opportunity to adduce evidence to demonstrate the validity of their claims. A brief overview of Justice Brown’s main findings follows:

  • On the question of justiciability, Justice Brown differentiated this case from the recent Federal Court of Canada decision in La Rose v. Canada, which found that another youth-led challenge to federal inaction on climate change was not justiciable. In differentiating the two claims, Justice Brown noted that the Application challenged specific government action and legislation unlike the claim in La Rose v. Canada.

  • Moreover, Justice Brown determined that the rights to life, liberty, and security of the person – section 7 of the Charter – are engaged by Ontario’s actions in repealing Ontario’s cap and trade system and 2020, 2030 and 2050 emissions reduction targets.

  • Similarly, with respect to the Applicant’s claim under section 15 of the Charter, Justice Brown determined that Ontario had not demonstrated that the claim that Ontario’s actions will have a disproportionate impact on youth and future generations by putting them at an increased risk of various health problems due to their age was unsustainable.

  • Finally, in determining whether the Applicants had standing to seek remedies for future generations, Justice Brown determined that the Applicants should be given standing for their generation and future generations who will bear the brunt of various impacts of climate change.

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

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