THUNDER BAY — Seven youths from across Ontario came together this week to appeal an earlier ruling by the province’s Superior Court that dismissed a legal claim they filed against the PC government for its alleged failure to protect them against the harmful impacts of climate change.
The hearing, which took place Monday, was the latest step to appeal a decision handed down in April when the judge who ruled on the application in the Mathur vs. Ontario case agreed with the youth plaintiffs that the Cap and Trade Cancellation Act — the PC legislation that weakened the province’s emissions reduction targets — was not ambitious enough, following up with a stinging condemnation of the government’s handling of the climate crisis, which she called a scientifically proven fact. But Ontario Superior Court Justice Marie-Andrée Vermette ultimately ruled the changes made by the PCs, when the government scrapped the cap and trade system introduced by the previous Liberal government, were not arbitrary or “grossly disproportionate” to the broad government objectives around emission reduction and therefore a Charter challenge could not succeed.
Her decision, however, established a precedent in Canada. While it found a Charter violation, based on the law at the time, did not occur as a result of the PC government’s actions to reduce emissions reduction targets, the judge made a critical ruling. She established that a government can be tested in trial for allegedly violating the human rights of Canadians, protected under the Charter (part of our Constitution), due to its action or inaction on climate change. This was the first decision to do so in Canada after other similar cases that sought to establish the same legal standard were dismissed.
And with laws around climate change evolving, for example, the federal government’s announcement that it will introduce a nature accountability Bill this year, the first of its kind—to establish clear standards to ensure the protection of critical habitat and other natural features—judges in the future will have more legislation to consider when determining if governments are doing harm to Canadians through policies that impact climate change.
The youth want the courts to force the provincial government to establish emissions reduction targets in line with the 2015 Paris Agreement (the court decision in April on the youth application notes in 2022, “Canada submitted its most recent national GHG reduction targets under the Paris Agreement” with an emissions target of 40-45 percent below 2005 levels by 2030, compared to Ontario’s goal to reduce greenhouse gases by 30 percent below 2005 levels by 2030).
While there was initial disappointment following the decision on the application, handed down by the Ontario Superior Court last year, the plaintiffs quickly rebounded, planning their appeal. Ecojustice lawyer Danielle Gallant, who is working with the team, said she always anticipated an appeal would likely be needed and that the case may potentially make its way to the Supreme Court of Canada. By focusing on the small wins, or what plaintiff Alex Neufeldt called “golden nuggets,” the youth was in a strong position to make their appeal.
“What's really great for us is that [the applicant judge] made really helpful findings of fact. There really was no debate over basic climate science, the fact that climate change is happening and is causing harmful impacts to Ontarians,” Gallant said. “And that the world needs to seriously reduce emissions to limit global warming, to avoid the worst impacts.”
“We have a really excellent set of facts on which to bring this appeal.”
The seven youth, represented by Ecojustice, built their case around the Cap and Trade Cancellation Act which the PCs used to replace the Climate Change Mitigation and Low-carbon Economy Act when they were elected in 2018. The former Liberal government, under Kathleen Wynne, 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. Ford’s government significantly weakened these targets.
The current legislation sets the target of a 30 percent reduction in emissions below 2005 levels by 2030. Not only does the PC legislation reduce the amount of emissions to be mitigated, it also changes the benchmark year to 2005. Emission 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.
“[The government is] failing to not even necessarily be a global leader, but just do the bare minimum,” plaintiff Madison Dyck said. “I'm anxious. Our right to a safe and equitable future is being challenged.”
The case was built out of Section 7 and Section 15 of the Charter of Rights, which grant all Canadians the “right to life, liberty and security of the person” regardless of “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The applicants argue children are disproportionately impacted by the effects of climate change in a number of ways, including vulnerability to poor air quality and mental health impacts, and because they will bear the burden of the worst impacts as the environment degrades more significantly throughout their lives.
The appeal was heard after the hottest year on record. According to NASA, Earth was, on average, approximately 1.4 degrees Celsius warmer throughout 2023 compared to the late 19th-century average when record-keeping began. Each month from June through December set a global record for the respective month, with July being the hottest month ever recorded. While summer 2023 was characterized as the hottest of our lives so far, it could be the coolest of the rest of our lives.
Dyck, who travelled from Thunder Bay, told The Pointer being in the courtroom Monday, unlike earlier hearings for the case that were virtual due to the pandemic, brought what’s at stake very close to him. “So it's like a new level of being very real.”
The seven applicants have spent the past four years fighting a government that is supposed to represent them. They have met virtually and in boardrooms with the lawyers, helping them to develop a strategy to hold Doug Ford’s PC government accountable for woeful environmental policies.
“I feel some real anger that there's people who are younger than me having to put in this emotionally taxing work. And that like every moment that was spent going over court documents, that's a moment where we're not playing outside. And that's a moment where we're losing this present moment to play in the snow or something,” Dyck said. “I think about how much time and emotion and energy I put into this case, and my hope is that a future generation doesn't have to fight for this. But that they only have the peace of mind, the government is really doing the right thing.”
“Things are rapidly changing. And every day that we're not acting has an impact,” Dyck said.
Legal counsel for the appellants argued Monday that not only is the Ontario government not helping the province and the globe in limiting temperature increases, it is actively hurting efforts. Even if the appellate judges accept the application judge’s decision that the PC government’s actions were not arbitrary because its intention was to reduce emissions in a somewhat proportional way compared to earlier legislation, the plaintiffs argue there was still material harm caused by the new policies because they have dramatically impacted the province’s ability to effectively fight climate change.
The appellants used expert evidence from a study by Dr. Damon H. Matthews, a professor and research chair in climate change and sustainability at Concordia University, that shows Ontario is emitting more per capita compared to other provinces and jurisdictions. PC policies, such as cancelling the electric vehicle subsidy, terminating hundreds of alternative energy contracts and dramatically increasing the use of gas (which creates severe pollution in the atmosphere) to produce electricity, are just some of the actions that have worsened Ontario’s impact on climate change.
While the government argued it is “committed” to fighting the climate crisis, its legal counsel said a per capita calculation is arbitrary, given the population includes many children and babies who have much lower carbon budgets than adults. Their claims puzzled the three judges presiding over the appeal hearing, who peppered counsel for the Ontario government — Zachary Green, Padraic Ryan and Dayna Murczek, with the Ministry of the Attorney General of Ontario — with questions about their so-called evidence which lacked statistical data to show young people, including babies would skew the data (the opposite would appear to be the case, as more children in a population would lower the per capita figures, whereas populations with more adults who have larger carbon footprints would have higher per capita numbers).
The same lawyers inexplicably used “expert evidence” from a known climate change denier in their submissions at the application hearing in 2022. The lawyers relied on William Van Wijngaarden, a professor of physics at York University, who has published non-peer-reviewed claims about the benefits of carbon dioxide emissions and has worked closely with a climate change denier who was part of Donald Trump’s administration. Van Wijngaarden stated in a sworn affidavit that the Intergovernmental Panel on Climate Change’s (IPCC) Nobel Prize-winning climate models “systematically overestimate global warming.”
He has been widely discredited by scientists and other researchers and has no standing with any panel, organization or body that is used by the UN or its affiliated scientific agencies.
The PC government’s lawyers used Van Wijngaarden’s models to argue it would take thousands of years before provincial emissions reductions would result in large-scale changes to the climate.
“Each day each tonne of GHG emissions causes a measurable impact on global temperature increase on the resulting parts. And so when you accept those fundamental facts, it's then possible to say, Ontario's target is causing the increased risk of harm and death to Ontarians,” Gallant said in response to the argument.
The application judge disregarded all evidence from Van Wijngaarden. She found the IPCC reports (with more than 6,000 scientists from around the world who contribute to them) “are a reliable, comprehensive and authoritative synthesis of existing scientific knowledge about climate change and its impacts.”
The PC government’s lawyers still used the discredited claims of a notorious climate change denier, arguing that the province’s emissions don’t matter on a global scale, and his debunked assumptions were not removed from their submissions to the appeal court despite the earlier position of the applicant judge who flatly rejected the province’s use of cherry-picked evidence that is not accepted by any legitimate scientific body.
“It was disheartening that that was the approach that the government took. I think it was very uplifting to see that being shut down. And essentially, the decision fully endorsed climate science,” Gallant said. “When we start listening to science, it puts us on a much better basis to discuss the legal arguments that we make on the basis of that.”
While she has hope for the success of the youth at the Ontario Court of Appeal, she noted there would be no hesitation to take the case to the Supreme Court of Canada, where precedent-setting changes in law establish the protection of Charter rights in a way that considers how society, our circumstances and values evolve. The legal system is supposed to constantly adapt to ensure the protection of citizens.
“We're very much at the forefront of that development in Canada,” Gallant said.
Perhaps the biggest win from the case so far was the application judge’s ruling that the matter was justiciable, meaning it is a matter that can be handled by the courts under its jurisdiction. The decision was precedent setting for climate change litigation in Canada.
“It's not only a political issue for governments to care about,” Gallant said. “That's a huge win.” The legal responsibility the decision created places a new onus on governments, which in the future will see more and more cases brought to courts that are allowed to deal with climate change-related claims.
“Recognizing the nature of the problem will be really important as we talk about how the court should approach the issues because this is not an issue like any other; this is truly the defining issue of our time. And if we don't get it right, the stakes are existential.”
“When I think of the future of Ontario, I don't see a way where we can go forward beyond this,” Dyck said. “And either we can drag our feet, and the laws can maybe continue to put up barriers, or we can take this opportunity to say, ‘Hey, the Constitution can be used to protect the environment and the rights and maybe also just a starting point’, and that we can give rights to the land and the water in a way that has previously been unseen in Canada.”
The Mathur case is not the only one of its kind. In 2019, a group of 15 young people from across Canada filed a suit against the federal government claiming it is violating Section 7 and Section 15 of the Charter by failing to protect them from the potentially dangerous effects of climate change. The case was originally dismissed with the judge stating it was “plain and obvious” it would fail. However, an appeal decision granted in December found the case was justiciable and had reasonable grounds for success. The case built off of wins in the Mathur case and is currently awaiting an appeal hearing date.
In 2023, a youth challenge in Montana was the first climate-related constitutional law case in the United States to reach a trial. More history was made in August when the District Court Judge ruled in favour of the plaintiffs, deciding that limitations on considering environmental impacts when deciding oil and gas permits violated the right to a healthy environment enshrined in Montana's constitution.
“It feels like we were on the same team,” Dyck said. “It's continually inspiring to me to know that there's other young people across Turtle Island and on a global scale that are fighting the same fight. And I mean, at the same time, we're fighting, but I also think we're reinventing and reimagining the future.”
“I definitely feel like we're going in the right direction,” Gallant added, noting an increasing number of climate cases being brought forward across North America and internationally can serve as inspiration for Canadian advocates. “It seems like it's only a matter of time, and the science is only becoming clearer, and the impacts are becoming clearer. And so we just need to get the courts on board in order to address the crisis.”
Dyck said she would continue to choose to be hopeful that these incremental successes will result in a dramatic change in climate change legislation and the way the courts handle these types of cases. She hopes youth in the future will not have to fight the same battles.
“I've been gifted with this community centred around Ecojustice and this team of my other applicants, the people that inspire me and continue to energize me and give me hope. That's amazing. And another way it's given me a really amazing platform to speak from and to tell my story and use this as a way to have conversations with people in my communities and communities across Canada,” she said. “At the same time, it's emotionally taxing work … It's like the level of climate grief and anxiety that I feel in my everyday life, it's so real. And while it's a privilege to be a part of this case, it is also frustrating and challenging that it's taken so long, and that I'm in this [situation] in the first place.”
A press release was issued after the hearing, quoting Gallant.
“The youth’s lawyers argued that the panel of three appeal judges should reverse the lower court’s findings that Ontario’s target does not violate youth and future generations’ rights to life, security of the person, and equality. They also asked the Court to consider the heightened vulnerabilities of Indigenous youth and future generations to the impacts of climate change.”
She highlighted the widespread attention Monday’s appeal hearing drew.
“Ecojustice was encouraged that the tenor of the hearing reflected the existential threat of the climate crisis — 2023 was the hottest year on record, pushing us closer to catastrophic and irreversible climate impacts. In particular, the Court heard that the remedy for these Charter violations, if found, must reflect the urgency of this moment. The youth appellants and their lawyers eagerly await the Court’s decision in the coming year.”
The youth are ultimately seeking two things: a ruling that the current emissions reduction target in Ontario is unconstitutional and something they referred to as “declaration plus,” meaning some sort of accountability mechanism to ensure a new target is in line with the IPCC’s science.
The appellants said while a stricter target would be ideal, they could live with what the application judge deemed appropriate: a 52-percent reduction in emissions below 2005 levels by 2050.
“I really want to say I've done literally everything that I can,” Dyck said. “But at the same time, is that enough?”
The Pointer / Local Journalism Initiative
