‘Generation-defining’ climate case could be heard by Supreme Court of Canada

Premier Doug Ford’s government is taking its fight against seven youth climate activists to the Supreme Court of Canada, after Ontario’s highest court sided with the activists in October.

It’s the latest in a long line of attempts by the PCs to quash the case. Ford’s government, which has repeatedly shown environmental protection and climate change are not on its priority list, has even used a climate change denier in court in an attempt to cast doubt on the youth’s case.

While the PC appeal to Canada’s top court draws out the case further, lawyers with Ecojustice who are representing the youth are encouraged about what a victory could mean for future climate action. 

“(This) opens the door to a generation-defining hearing before Canada’s highest court — one that could lead to recognizing that governments have constitutional obligations to address one of the most pressing emergencies we have ever faced,” Fraser Thomson, the Climate Director at Ecojustice stated in a press release. “The climate crisis isn’t going away, and neither are we.” 

On October 17, the Court of Appeal for Ontario overturned a previous lower court decision that dismissed the case and ruled in favour of the young applicants who have had a simple ask—stronger climate action in Ontario. 

The PCs came into power in 2018 and immediately got to work dismantling plans to make Ontario’s energy systems more sustainable and climate action stronger. Ford repealed the Climate Change Mitigation and Low-carbon Economy Act of 2016, reducing the carbon emissions target to 30 percent below 2005 levels. 

The previous goal was 37 percent below 1990 levels by 2030. 

Sophia Mathur speaking at a press conference on Nov. 26, 2019.

(Chris Roussakis/Ecojustice)

Sophia Mathur, a Sudbury resident who was just 12 years old when she first became involved in the climate justice movement, has been the face of the ongoing legal challenge since November 2019. Alongside six other youth activists—Alex, Beze, Madi, Shaelyn, Shelby, and Zoe—Mathur argues that the reduced emissions target violates Ontarians' constitutional rights to life, liberty, and security.

Using sections 7 and 15 of the Canadian Charter of Rights and Freedoms, the activists contend that children are disproportionately affected by climate change impacts, including poor air quality and mental health challenges, and they will bear the most severe consequences as environmental degradation worsens throughout their lives without strong, immediate intervention. 

The Charter guarantees rights and freedoms to all Canadians, drawing parallels to other landmark human rights instruments worldwide, such as the U.S. Bill of Rights and the European Convention on Human Rights.

Ecojustice presented evidence showing that the Province's reduced emissions target could allow an additional 30 megatonnes of carbon emissions annually by 2030—an amount that further jeopardizes Ontario's ability to meet both national and global climate goals.

Canada has committed to reducing its greenhouse gas emissions by 40 to 45 percent by 2030 from 2005 levels as part of its pathway to net-zero emissions by 2050. According to data released on December 19, Canada’s national emissions are currently only nine percent below 2005 levels. 

Canada’s emissions reductions are not on track to reach the goals set out in the Paris Accord.

(Statistics Canada)

The country has yet to submit its updated Nationally Determined Contributions (NDCs), which are the emissions reduction targets central to the Paris Agreement.

Canadian greenhouse gas emissions by province and territory in 1990, 2005 and 2022 show Ontario is a key contributor to climate warming emissions in the country.

(Government of Canada)

Ontario remains one of the largest emitters of greenhouse gases in the country, producing 157 megatonnes of carbon emissions in 2022. This is almost identical to the emissions level of 158 megatonnes in 2017, before the province’s cap-and-trade program introduced under Kathleen Wynne’s Liberal government was scrapped by Ford through the Cap and Trade Cancellation Act in October 2018.

The young applicants sought an order “requiring Ontario to set a science-based emissions reduction target and to revise its climate change plan in accordance with international standards.”

Instead, the Ford government attempted to strike down the case. On April 15, 2020, it filed a motion to dismiss the case, arguing it should not proceed to a full hearing. The youth applicants fought back.

In November 2020, the government’s motion was denied, and for the first time in Canadian history, a court acknowledged that climate change could potentially violate Charter rights, allowing the case to move forward.

After overcoming multiple procedural hurdles, the case proceeded to a full hearing in September 2022.

In a ruling last year, Ontario Superior Court Justice Marie-Andrée Vermette dismissed the case, concluding that the provincial emissions target did not violate the Charter. 

Thomson at Ecojustice has explained to The Pointer previously that the court believed that his clients had a “positive rights case which is a case that required the government to step into a problem that maybe it wasn't responsible for.” 

However, Justice Vermette recognized the significant gap between necessary global emissions reductions and the targets outlined in the provincial plan, describing it as "large, unexplained and without any apparent scientific basis." 

The group appealed the decision and argued the case before Ontario's Court of Appeal in January 2024, which ultimately ruled in their favour, overturning the dismissal by the lower court. 

Rather than acknowledging the flaws in its environmental policies, the PC government—already under fire in the latest Ontario Auditor General’s report for failing to educate citizens on the Environmental Bill of Rights and withholding key information on the environmental impacts of certain projects—has chosen to continue its legal fight.

On December 16, the Ontario government filed an application for leave to appeal the Mathur et al. case at the Supreme Court, setting the stage for a potentially precedent-setting hearing at Canada’s highest court. 

In an interview with The Pointer, Thompson explained that the only way a party can appeal a decision from the Ontario Court of Appeal is by seeking permission from the Supreme Court of Canada. This process, known as "leave," means that Ontario must convince the Supreme Court that the case is significant enough to warrant its attention. While many seek to have their cases heard by the Supreme Court, only a select few are granted leave.

When Ontario submits its request, the activists' legal team will respond, either agreeing with the need for the case to be heard or disagreeing. 

Ultimately, the Supreme Court will decide whether to take the case on in full.

Thompson describes the case as a classic David vs. Goliath battle, one they always anticipated would “likely end up at the highest court in Canada” given that climate change is both a matter of “fundamental national importance” and “an existential threat to humanity.”

He says the Charter of Rights and Freedoms is designed to protect human rights. However, the actions taken by governments in fueling the climate crisis and failing to address it violate those fundamental rights. 

“And across the country, governments like the Government of Ontario have been fueling this crisis and not doing enough to stop it, and we know that this is having an impact on Charter rights across the country.”

This case is fundamentally about whether the Charter can protect those rights,” Thompson said.

In a similar case south of the border, 16 young people presented their case to the Montana Supreme Court in 2023, highlighting the economic and health impacts of spring floods, smoke-filled skies, extreme heat, and damage to Montana’s landscapes. 

On December 18, the court upheld a historic District Court ruling, prioritizing children’s constitutional rights over extractive industries. It confirmed that the state’s greenhouse gas emissions are “proven to be a substantial factor” in causing climate harm and affirmed that Montana’s constitutional right to a clean and healthy environment includes a stable climate system.

Thompson says he’s optimistic since courts across the world are increasingly ruling in favour of the citizens because they are looking to the unequivocal scientific evidence.

The Mathur case has been setting legal precedents throughout its time before the courts — including becoming the first climate Charter case to ever be heard and ruled on its merits.  

If the provincial government is granted leave, this would mark the first time a climate case based on Charter rights is being decided at the Supreme Court of Canada. 

The decision would have precedent-setting implications, not only for Ontario, but for all of Canada. 

Since first fighting the provincial government, five years later, Mathur says she is “more determined than ever to see this case through".

“The climate crisis is here, and it is going to impact us all. I’m fighting for my future, and for the future of the generations that come after me. My fellow applicants and I know what’s at stake, and we are not backing down.” 

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