Applicants in a landmark youth-led climate lawsuit against the Doug Ford government are vowing to appeal their loss this week, buoyed by the judge’s rebuke of Ontario’s emissions targets and its cynical bid to skirt litigation by declaring its own climate plan to have no status in law.
Ecojustice lawyer Danielle Gallant compared Queen’s Park inadequate efforts on climate change to “bringing a glass of water to put out a house on fire,” the Toronto Star reports, even as Justice Marie-Andrée Vermette ruled that the Ford government’s 2018 Cap and Trade Cancellation Act (CTCA) did not fully violate the Charter rights of Ontario youth and Indigenous peoples. The law replaced the previous government’s emissions reduction target of 37% below 1990 with a less stringent target.
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Vermette found that the province’s watered-down climate goal engaged Section 7 of the Charter of Rights and Freedoms dealing with life and security of the person, but did not violate principles of fundamental justice since the target itself was not arbitrary. She did affirm the scientific consensus on the need to rapidly cut emissions, an urgency missing from the CTCA.
“While the decision was a setback, it still broke new ground in charter climate litigation in Canada—and included a damning indictment of Ontario’s weak and dangerous climate target,” Ecojustice said in a release. “The court found that the case is justiciable, which means it is an appropriate question for courts to weigh in on. This has been a significant obstacle for other Charter-based climate cases in Canada.”
The court “also found that it was ‘indisputable’ that because of climate change, Ontarians are experiencing increased risk of death and serious bodily harm and that the Government of Ontario—by enacting a target to reduce GHG emissions that falls well below what the global scientific consensus says is required—is contributing to that risk of harm,” the Vancouver-based environmental law charity added.
Launched in 2019, the youth climate lawsuit alleged that courtesy of the CTCA, Ontario will emit an additional 200 megatonnes of carbon by 2030, thereby breaking its promise to help uphold Canada’s Paris agreement commitments. The Ford government was “tearing up the province’s climate laws” and violating the youth applicants’ charter rights to life, liberty, and security of the person, the lawsuit contended. Their fight continues to be supported by lawyers from Ecojustice and Stockwoods LLP.
Vermette ruled that the Ford government had not violated the applicants’ charter rights under the charter’s equality provision, Section 15, when it reduced its emissions target. “I agree with the Applicants that the evidence in this case shows that young people are disproportionately impacted by climate change,” she wrote. “However, this disproportionate impact is caused by climate change,” not by the provincial laws.
But that’s not to say the actions of Ontario’s government do not matter, she added.
The judge rejected claims by one of the government’s expert witnesses, a well-known climate denier, that provincial efforts at emissions reductions will have no bearing on the fight to rein in global heating. She said she “rejected the notion that since climate change is ‘an inherently global problem,’ each individual province’s greenhouse gas emissions cause no ‘measurable harm’.”
Ontario’s contribution to global heating is “real, measurable and not speculative,” Vermette wrote, and its emissions contribute to climate change and the increased risks it creates. “Every tonne of carbon dioxide emissions adds to global warming and leads to a quantifiable increase in global temperatures that is essentially irreversible on human time scales.”
Vermette also rejected the province’s efforts to evade the lawsuit by declaring its own climate plan to be little more than a “glossy brochure” courtesy of its communications department, with no power to reduce emissions and therefore not subject to review by the courts.
“I am not prepared to accept that a legislative requirement, or something that is required by law to be approved by the Lieutenant Governor in Council, is meaningless,” she wrote.
Stockwoods partner Nader Hasan, one of the lawyers for the youth, argued last September that allowing a province to “insulate its actions from the Constitution by claiming they’re simply communications exercises” would set a dangerous precedent.
“If the target and plan are not reviewable, then I fear that governments’ action in this country on climate change will be immune from judicial scrutiny,” Hasan said.
The Ford government’s glossy brochure defence was “a blueprint for rendering governments immune from constitutional judicial review on some of the most important decisions that any government in this country will be making for the foreseeable future,” he added. “Fortunately, their position is not supported by law.”
“Legal challenges are becoming a powerful tool for young people to hold their governments accountable for climate action,” said Ecojustice lawyer Danielle Gallant. Despite the “disappointing” verdict, she said lawyers at Ecojustice and Stockwoods “remain inspired by the courage and determination of these young applicants to advocate for a better, safer future for us all.”
“We remain behind them to support their fight, to the Court of Appeal and beyond,” she added.
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