Sophia Mathur was just 11-years-old when Ecojustice reached out to her and asked if she might want to be involved in fighting the Ontario government in court.
The then pre-teen had grown up talking about environmental issues and climate change around the dinner table. By the time the environmental law charity had reached out to her, she was participating in Fridays for Future climate strikes — a global movement in which children don’t attend school on Fridays to demand better environmental policies — and talking about it on Twitter. It caught the eye of the lawyers at Ecojustice. “I was a little hesitant at first,” says Mathur. But after thinking it over, she decided it was worth fighting for.
Now, five years later, Mathur and her six co-applicants will likely be headed to the Court of Appeal for Ontario. It’s the second stage of a court battle that started before she even began high school, and may not end until Mathur graduates university.
In 2022, the court heard arguments from Ecojustice and Stockwoods LLP lawyers that Doug Ford’s provincial government decision to weaken climate targets violates the Charter rights of Ontarian youth, and generations to come.
On April 14, the Ontario Superior Court of Justice released a decision in Mathur et. al. v. Ontario. The decision by Justice Marie-Andrée Vermette dismissed the case. But the applicants aren’t defeated. In fact, they believe they are gearing up for a battle that has the potential to change Ontario’s environmental future.
A government witness raises red flags
Ecojustice’s case rested on proving that the Ford government, by repealing the Climate Change Mitigation and Low-carbon Economy Act, which set strong emissions reduction targets for 2020, 2030 and 2050, violates future generations of Ontarians right to life, security and equality. Ecojustice says the replacement target, which aims to reduce emissions 30 per cent below 2005 levels by 2030, is “significantly weaker.”
The seven applicants' lawyers sought to prove that Ontario had violated young people’s Section 7 and 15 rights under Canada’s Charter of Rights and Freedoms, which protect the life, liberty and security of person, and equality before and under the law.
Here’s the good news, as Ecojustice sees it: the judge actually agrees. In her 53-page Reasons for Judgement, Vermette writes that the seven young people made a “compelling case” that climate change presents an existential threat that would in fact threaten their life, liberty and security of person under Section 7.
“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,” she states.
She also made several key factual findings: that Ontario’s experts — one of whom was William van Wijngaarden, a physics professor at York University who has argued that climate models overstate the rate of warming — were not as reliable as the Intergovernmental Panel on Climate Change, which Ontario’s current greenhouse gas reduction goals fall short of what scientists have recommended to halt climate change, and that Ontario does not significantly contribute to climate change. (Every amount of greenhouse gases emitted contributes to it.)
The lawyers for the Ford government 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.
It is noteworthy that Van Wijngaarden collaborated with American academic William Happer, who was hired by Donald Trump’s White House to refute climate science that is almost universally accepted by leading atmospheric research institutions around the world, the Pointer reports. “The decision to use Van Wijngaarden as a key witness has raised red flags among Canada’s scientific community, signalling the government of Canada’s largest province, and the country’s second worst polluter (behind Alberta) has aligned with fringe climate deniers.”
Danielle Gallant, one of Ecojustice’s lawyers said, all is not lost. “We are hopeful for what the positive elements of the decision mean for this case moving forward, but also for climate litigation in general.”
Should courts have the power to compel governments to act?
The reason that the case was dismissed comes down to one question: should courts have the power to compel governments to act? This is called “positive rights” in the legal sphere.
Typically, when a Charter case is successful, it’s about stopping a government action that somehow infringes a person’s rights in a way that is not justifiable under Section 1. For example, in 2002, when eight LGBTQ+ couples challenged the Canadian common law rule that marriage was between a man and a woman, the Ontario Court of Appeal struck it down because, in effect, the government was preventing something from happening that restricted, unjustifiably, the right to equality enshrined in the Charter.
Vermette ultimately saw this as a positive rights case: she thought a decision finding a Charter violation would force the government to take a new action. “Unfortunately under Section 15, there’s a lot less openness from the courts to accept that governments must proactively act to address inequality,” says Gallant.
Andrew Kennedy, spokesperson for Doug Downey, Ontario’s attorney general, says they are pleased with the decision. “The Ontario Superior Court of Justice held that Ontario’s climate change plan and target did not infringe the Charter and was not contrary to the Constitution,” he added in a statement sent to Ricochet.
The appeal will likely revolve around whether a finding of a violation of Charter rights in this case is a positive right. “We don’t agree with the framing that it is asking for proactive action,” says Gallant. “The government has taken multiple steps here, and that is what we’re targeting.”
Ecojustice has about a month to launch the appeal, which would be heard by the Ontario Court of Appeal. Gallant notes that successful cases have been launched in the Netherlands, Germany, Columbia and France that hold governments accountable for their climate targets.
All the applicants are in it for the long haul. They understand this could go all the way to the Supreme Court. “We’re going to keep going regardless,” says Mathur.
It’s also had an impact on Mathur’s future career plans. “I feel like it’s also been a learning experience, to learn how this all works, how to write an affidavit, and meeting the lawyers,” she says. She had thought about becoming a lawyer before even joining the case — now Mathur sees why it is important. “Even if we get climate action, there will need to be people out there making sure governments are following up with those decisions.”