The Ontario government’s bid for leave to appeal sets the stage for what could be an important test of the Charter’s application to environmental policy.
The Ontario government has appealed a landmark environmental decision that said seven young plaintiffs could sue the province for failing to act on climate change.
The Ontario government last week filed an application for leave to appeal in the Supreme Court of Canada, setting the stage for what could be an important test of the Charter’s application to environmental policy.
Fraser Thomson, climate director of Ecojustice, an environmental law charity, said the appeal had the potential to trigger “a generation-defining hearing” in Canada’s highest court.
“It’s one that could lead to recognizing that governments have constitutional obligations to address one of the most pressing emergencies we have ever faced,” he said.
One of the seven young plaintiffs is Alexandra Neufeldt, 28, of Ottawa, who joined the legal bid to win provincial action on climate change. The lawsuit alleges the Ontario government’s decision to claw back emissions targets in 2018 violated the Charter’s guarantee of the rights to equality, life and security of the person.
“Our case has beaten the odds at every turn, and I believe it will continue to do so,” said Neufeldt, a freelance fashion designer. “My hope is that our fight helps reshape Canadian law and holds the Ontario government — and all governments — accountable for fueling the climate crisis.”
Neufeldt said the case held enormous consequences. “We don’t have anything in the Charter about a right to a safe climate, and this could potentially change that,” Neufeldt said in an interview.
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In October, the Court of Appeal for Ontario said the group’s lawsuit could proceed in a decision hailed by environmental activists.
The decision overturned a lower-court ruling that dismissed the lawsuit as a “positive rights case” — a case that established a novel legal right. The appeal court said a new hearing must determine whether the government’s actions on greenhouse gas emissions complied with the Charter of Rights and Freedoms.
The three-justice panel said “it is indisputable that, as a result of climate change, the appellants and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person.”
The lawsuit was triggered by the Progressive Conservative government’s decision in 2018 to cut back greenhouse gas emissions targets in Ontario. Premier Doug Ford’s government reduced the province’s emission goals from 37 to 30 per cent below 2005 levels by 2030.
The province did not contest the existence of climate change, its risks to human health or the need for all countries to take action to mitigate its adverse effects.
Instead, lawyers for the Ontario government argued that its actions would have little or no effect on climate change given the scope of the problem and that the environmental impacts described by the young plaintiffs were not the result of the province’s greenhouse gas policies.
Backed by lawyers from Ecojustice and Stockwoods LLP, the lawsuit contends the impact of climate change offends the Charter’s equality provision because it will have a disproportionate impact on youth, particularly Indigenous youth, given the toll that wildfires and drought take on traditional hunting and fishing grounds.
Nader Hasan, a member of the Stockwoods legal firm and lead lawyer in the case, said that, if the Supreme Court grants leave, it will mark the first time the court considers whether a government’s climate change policy can violate Charter rights.
“The stakes have never been higher,” he said, “and the seven youth at the helm of this case are committed to safeguarding our rights to a safe, healthy, livable future.”
Neufeldt says the case is important because the potentially catastrophic impact of climate change will be borne by those who are young today or as yet unborn.
“I joined this case because the climate crisis is impacting the way young people like me can dream about our futures — about building homes, businesses, and communities,” she said.
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