Despite dismissal, judge’s decision in youth climate case against Ford government sets crucial precedent

The case of seven youth who took the Ontario government to court over its failure to address the impacts of our warming planet, which they argued was a violation of their Charter rights, has been dismissed by the Superior Court of Justice. But a key point in the judge’s decision leaves the door open for future cases that could have a different outcome. 

The case was dismissed on the grounds the PCs' altering of climate legislation in 2018, weakening the province’s emission reduction targets, did not rise to the level of a Charter violation. Justice Marie-Andrée Vermette agreed the PC plan was not ambitious enough, offering a stinging condemnation of the government’s handling of the climate crisis, but appeared to contradict herself by noting the changes made were not arbitrary or “grossly disproportionate” to the broader objectives of government climate change policy. These two legal thresholds need to be crossed for an action to be ruled a violation of the Charter. 

“Based on the evidence before me, it is indisputable that, as a result of climate change, the Applicants and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person. However, this is not the relevant question in this case,” Justice Vermette wrote.

She agreed with many of the claims made by the youth and their lawyers from Ecojustice, such as the severity of the climate crisis, the flimsy nature of the PCs' emissions reductions targets, the reliability of the Intergovernmental Panel on Climate Change (IPCC) reports and the use of untrustworthy evidence from a known climate change denier by the Ontario government. 

“There really was no debate that climate change is real. It's happening, and it's causing those harmful impacts for Ontarians, and the world needs to seriously reduce emissions to limit global warming to 1.5 degrees to avoid the worst impacts,” Danielle Gallant, one of the lawyers for the youth, told The Pointer.

Justice Vermette also rejected Ontario’s claim that the emission target was “meaningless”—an assertion that supports what environmental organizations across the province have stated for years; that the Ontario government does not take the climate crisis seriously. 

“I am not prepared to accept that a legislative requirement, or that something that is required by law to be approved by the Lieutenant Governor in Council, is meaningless. The setting of the Target was a state action taken pursuant to a statute,” she wrote. “As a target, it is meant to guide and direct subsequent state actions with respect to the reduction of GHG in Ontario. The requirements for publicity and progress reports also contradict the suggestion that the Target and the Plan are meaningless.”

Despite the recognition of the seriousness of the claims brought forward as part of the case, Justice Vermette decided not to rule that the Ontario government’s lack of action to reduce emissions amounted to a Charter violation.

“A mere change in the law cannot be the basis for a Charter violation,” she wrote in her decision, referring to the Ontario government’s cancellation of the Cap and Trade program upon taking office in 2018. “In the absence of a constitutional right that requires the government to act in the first place, there can be no constitutional right to the continuation of measures voluntarily taken, even where those measures accord with or enhance Charter values.” 

Any appeal could raise issue with Justice Vermette's decision to both highlight the severity of the Ontario government's actions, acknowleding the link to harm, and also claim the protection of citizens is not a constitutional obligation that a government is required to continue. The Justice determined the Ontario government's actions were not a severe enough departure from protective legislation that had been in place, and therefore its policy changes did not meet the threshold of a Charter violation. But the language she used throughout much of her ruling, harshly criticizing the consequences of the PCs' stripped down climate policies, suggests otherwise. 

The Mathur case, as it came to be known, now serves as a landmark case bringing together seven youth plaintiffs — Sophia Mathur, Zoë Keary-Matzner, Shaelyn Wabegijig, Shelby Gagnon, Alex Neufeldt, Madison Dyck and Beze Grey — from across Ontario who say the lack of government action to combat the climate crisis puts their future wellbeing at risk. 

“I joined the case right away, because I knew that I had to do everything I could to right these wrongs,” Keary-Matzner, 15, one of the seven youth plaintiffs, told The Pointer in September.

The case surrounds the Cap and Trade Cancellation Act enacted by the PC government in 2018. While the Act focuses on a reduction of emissions, the targets are not nearly as aggressive, nor does it meet standards set by most jurisdictions around the world committed to emission reduction.

Under the Cap and Trade Cancellation Act the PCs set a target of 30 percent emissions reductions below 2005 levels by 2030. The target is weakened significantly compared to the Act that preceded it. In 2016, the Liberals, under former premier Kathleen Wynne, passed the Climate Change Mitigation and Low-carbon Economy Act, which committed the Province to reducing greenhouse gas emissions by 15 percent below 1990 levels by 2020, 37 percent by 2030 and 80 percent by 2050.

Premier, Doug Ford has significantly altered environmental legislation including the replacement of the Climate Change Mitigation and Low-carbon Economy Act with the Cap and Trade Cancellation Act, scrapping electric vehicle incentives, and gutting conservation authorities.

(The Pointer files)

The PC Act falls short not only in reducing the percentage of emissions reductions, but also shortens the base year to 2005. Emissions levels in 2005 in Ontario were already 13 percent higher than in 1990. The lawsuit claims this change allows the release of an additional 200 megatonnes of carbon emissions by 2030. 

“I do think it puts the Ontario government on notice. The Court has recognized that its climate target is not just severely short of what is needed, based on climate science, it's also dangerous,” Gallant said.

Scientific consensus among the IPCC has made it clear that if the planet is to warm 1.5 degrees above pre-industrial levels—a threshold solidified during the Paris Climate Agreement—the world will begin to experience more extreme climate impacts, like severe flooding, increased heat waves and droughts leading to a large number of climate refugees fleeing impacted areas and famine. The world has yet to reach this level of warming, but climate catastrophes are already playing out across the globe, from cataclysmic flooding in Pakistan to raging wildfires in Australia. The evidence is clear that the world is already experiencing the effects of anthropogenic climate change, placing increased urgency on calls from the IPCC and other environmental organizations to do more to mitigate further emissions.

Justice Vermette made it clear in her decision that she believes Ontario’s target is weak and does not position the province as a climate leader. She also rejected the use of evidence from William Van Wijngaarden by the Ontario government. Van Wijngaarden is a climate change denier who has worked closely with skeptics linked to former president Donald Trump’s White House administration. He is a professor at York University who has published multiple, non-peer reviewed claims about the benefits of carbon dioxide emissions and stated in a sworn affidavit that the IPCC’s Nobel Prize winning climate models “systematically overestimate global warming”.

Despite the support for many of the plaintiff’s claims, the Justice appeared to contradict herself in finding there was no Charter violation in the weakening of Ontario’s climate plans.

“Unfortunately, the Justice did not agree that the target was arbitrary, based on her interpretation that even though it is completely inadequate, the target does reduce GHG emissions to some degree in the province,” Gallant said. 

Justice Vermette did not support the claim under Section 15 of the Charter that the impacts of climate change are disproportionately felt by Canada’s younger residents. She agreed that these impacts are multiplied for young people, but said this disproportionate impact is not caused by the PC legislation, but by climate change itself. 

“On the one hand, it obviously is frustrating to see that the Ontario government continues to take us in the wrong direction when it comes to the climate crisis, and that it appears that the courts are not at the stage where they are going to do anything to change that,” Alex Neufeldt, one of the young plaintiffs, told The Pointer following the release of the decision. “On the other hand, we did get some pretty good, I call them ‘golden nuggets’, hidden treasures within the decision that actually do, in my opinion, set a positive precedent for future cases like this.”

Alex Neufeldt, one of the youth plaintiffs, addressed a crowd at Queen’s Park prior to the hearing in September.

(Shay Markowitz/Ecojustice)

One of the “golden nuggets” that Neufeldt referred to is the fact Justice Vermette found the case to be justiciable, meaning it is within the jurisdiction of the courts to make a decision on such a matter. 

The matter of justiciability has been a major theme in a series of unprecedented court cases that challenge climate legislation and action across North America. At the federal level, a case involving 15 youth challenging the Government of Canada on lack of climate action, went to the Federal Court of Appeal to argue the case’s justiciability. In that case, the respondents representing the federal government argued the youth were not challenging the constitutionality of any law, rather making broad accusations that the government is contributing significantly to climate change. While they used the Mathur case as an example of challenging a specific piece of legislation, Gallant said she hopes the wording from Justice Vermette will set a legal precedent for future cases. 

“I'm certain that on the basis of the positive elements in this case, especially the fact that the court found this type of case to be justiciable … I think we will be seeing more cases brought on the basis of that important precedent,” she said. “We're really hopeful about what the positive elements of the decision means, but also climate litigation in general.”

“I hope that our case will kick the door open for other further cases now that the justice in our case has said that this is an appropriate kind of case for the courts to look at. That was something that the Ontario government and the federal government have also done with cases against them, saying this is not the courts are not the right place for this,” Neufeldt added. “Our judge has said that ‘See it is appropriate for courts to look at cases like this’. So I'm hoping that it'll become even more common in this country now.”

The Mathur case is part of a growing list of legal challenges across the globe that have sought to hold governments accountable for failing to properly protect citizens from climate change. Neufeldt said their case was largely inspired by the Urgenda case in the Netherlands, which brought together 900 Dutch citizens suing the government over climate legislation. The case ended with the court ruling the government must create stronger emissions reductions targets, from 17 percent below 1990 levels to 25 percent below 1990 levels by 2020 — a goal the nation reached. Neufeldt said she hopes the Mathur case can create similar inspiration to pursue more climate action in the legal domain.

“These cases have been key moments for pushing for climate action in those countries, but they've also been building blocks for cases and other jurisdictions like Canada,” Gallant said. 

The Mathur case has already sparked action within the political realm. Peter Tabuns, the NDP critic for energy and the climate crisis, has used it to question Ontario’s environment minister. 

“So that's really encouraging to see,” Neufeldt said. “And a lot of lawyers not involved in our case seem to be treating this as an important step forward in Canada's legal system.”

“Ontario's emissions, even though they may be numerically small, they do have an impact on the climate, and they are putting Ontarians lives and health at risk. Now that that's been acknowledged by a judge in court, I would hope that that's something that people start to understand more seriously and not think that Ontario is somehow a leader in fighting the climate crisis because we're not,” she added. 

Despite the small win, Neufeldt admits there are still feelings of disappointment and a diminishing faith in government institutions.

“Some people I know definitely talk about Canada's colonial legal system being very problematic and ill equipped to deal with problems like the climate crisis, and seeing this unfold has kind of led me to agree,” she said. “The judge did agree with us on so many points, and yet still felt that the law wasn't there yet.”

“We just have to keep pushing on the legal side of things, which is where this case failed,” Gallant added.

The youth plaintiffs plan to appeal the decision. Gallant said she always expected the case would have to be taken to the Court of Appeal and potentially even the Supreme Court. 

“There's seven creative young people that are part of this global movement,” Gallant said. “And they're really fighting for their rights and the rights of all human future generations.”

Email: [email protected]

Twitter: @rachelnadia_

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