This summary has been prepared by Sidonie Wittman and edited by the CSRC team based on discussion at our Climate Conversation. There are a number of other resources available:
- For a case summary prepared by the youth claimants’ counsel, see EcoJustice’s backgrounder.
- To hear from one of the claimants and their lawyers directly, you can listen to the Centre for Law and the Environment’s webinar recording from January 24, 2024.
- For a summary of the implications of the Mathur Appeal, see Prof. Stepan Wood’s summary in the Conversation entitled Recent Ontario appeal court ruling on youth-led climate case could be a constitutional ‘game-changer’
- For a summary of the legal context for recognition of environmental rights in Canada, see Prof. Stepan Wood’s paper “A Hot Day in Iqaluit”? Environmental Rights in Canada’s Constitutional Cul-de-Sac.
Thank you to the Centre for Law and the Environment and the Centre for Climate Justice for co-hosting this event.
Youth-led climate litigation, taking governments or corporations to court, has been a high profile strategy for advancing climate commitments in jurisdictions all over the world. In a recent Climate Conversation, Professor Stepan Wood, Director of UBC’s Centre for Law and the Environment, explained the Canadian context with a focus on the recent appeal of Mathur et al. v. His Majesty in Right of Ontario.
In 2019, seven youth sued the government of Ontario for violating their constitutional rights by legislating the Cap and Trade Cancellation Act. This 2018 Act was a fulfillment of promises from Premier Doug Ford to eliminate the Ontario government’s cap-and-trade program of the time, and along with it, the emission reduction targets and interim goals previously set in place. The government then set a new goal to reduce emissions which was far less ambitious than the previous goal, and which fell below the level identified by the global scientific community on what emission reductions would be needed to limit warming to acceptable levels.
At the core of the claim submitted by the seven youth is that this policy contributed to climate change in a way that violated their Charter of Rights and Freedoms under Section 7, which guarantees the “right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.” They also claimed that the policy violated their Section 15 rights to equality, specifically under the enumerated class of age. Their argument is based on the fact that as young people, they face greater impact from climate change and also as three of the defendants were Indigenous, that the Ontario government was unequally harming Indigenous youth through climate change. The claimants sought a declaration that the 2018 law violated their rights, and an order for Ontario to put in place a plan that was based in science and consistent with Ontario’s fair share of the carbon budget.
The initial court decision affirmed many of the claimants’ claims. The judge stated that climate change is occurring, that Canada is experiencing increasingly severe impacts of climate change, and that a global carbon budget is a useful framework for understanding appropriate carbon emissions standards. She also stated that young people and Indigenous people are disproportionately affected by climate change, and that Ontario’s new law does fall short of the global consensus on what actions are needed to stop the harmful effects of climate change and thus exacerbates the risk to life and health for young people in Ontario. She also held that this type of case was ‘justiciable’, meaning it is within the realm of the courts to decide and doesn’t only fall to the legislature, as other courts had previously ruled.
Even with many of the claimants’ claims affirmed, the judge still dismissed the case. In her ruling, the judge explained that it is climate change that is harming these Ontarians, not the government of Ontario itself. For the Ontario government to be held responsible (and for the claimants’ case to be valid), the claimants would need to establish a ‘positive right’ to be protected against climate change.
The difference between a positive and a negative right is an important judicial distinction, which has greatly impacted the trajectory of this case. While the courts agree that the government can’t actively harm citizens, a positive right would imply that the government must also not fail to help, even where they themselves are not directly causing the harm.
For the court to side with the young people, the judge indicated that a ‘negative right’ must be proven; in other words, that the government’s actions are actively causing them harm. Based on this, the original judge dismissed this case. This decision was appealed, and in October 2024, the appellate judges determined that the case could proceed and has been sent back to the original judge to review the decision. Crucially, the appeal court rejected the lower court’s contention that the claimants are trying to assert a novel ‘positive’ right to protection against climate change. Agreeing with the youth, the appeal judges held that this is not a positive rights case, and that Ontario, having put in place a legislative scheme to tackle climate change, must ensure that the scheme does not violate Ontarians’ Charter rights. These seven young claimants will once again have a chance to prove their rights are being violated, and to set a precedent for requiring strong action on climate change from governments.
After an initial explanation, Professor Stepan Wood discussed questions relating to fossil fuel subsidies, the Sue Big Oil campaign, and the impact of mis- and disinformation when it comes to climate change. The group discussed the differences between civil litigation and constitutional challenges, and how various other cases have proceeded in both Canada and internationally in places such as Germany, the Netherlands, and the United States. The relationship of international agreements (i.e. the Paris Agreement) and globally collated resources (i.e. IPCC reports and related summaries for policy makers) to these cases was also discussed.
Thank you to the Centre to Climate Justice and the Centre for Law and the Environment for co-hosting this event, and to all the participants who came and shared questions and thoughts.