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Seven young people who brought a landmark lawsuit against the Ontario government, alleging its climate plan fails to protect them and future generations, were heard in Ontario Superior Court in Toronto this week; the first time a climate lawsuit aimed at changing government policy has had a full hearing in court.
The plaintiffs, represented by the environmental law charity Ecojustice, brought the suit in 2019 after the Progressive Conservative government of Premier Doug Ford replaced the former Liberal government’s climate plan. It ended the province’s cap and trade program and brought in a new, weaker emissions target.
The plaintiffs want the court to order the province to bring in a new plan. The specifics would be left up to the government, but the plaintiffs want it based on science and to be compatible with the aims of the Paris Agreement, which aims to limit global warming to well below 2 C.
“At current levels, the entire world is going to blow through the remaining carbon budget in five to 10 years, maybe even less,” said Nader Hasan, lead lawyer for the plaintiffs.
“Ontario is using a grossly disproportionate share of that carbon budget.”
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But they face an uphill legal battle. The province has argued that its plan is not a law but rather a policy that cannot be challenged. According to constitutional law expert Julius Grey, courts generally avoid challenging government policies.
This case “faces the challenge of the government’s argument, which has usually succeeded, that policy matters cannot be determined through the courts. In other words, it’s not for the courts to determine if our budget is the right one, if the water supply is sufficient,” he said.
Grey has some experience with climate lawsuits. In 2012, he worked on a case challenging the federal government’s — then led by Prime Minister Stephen Harper — withdrawal from the Kyoto Agreement to limit global warming.
That lawsuit was dismissed by federal court before reaching a full hearing. In 2020, another climate lawsuit brought against Ottawa was also dismissed. That judge found the court had no role in directing Canada’s overall approach to climate change.
The Ontario government tried to have this case dismissed too, but the motion was denied. By reaching a full hearing, the youth applicants have gone farther than previous cases. Any decision will send a message on how far courts can go in reviewing governments’ approach to the escalating climate crisis.
“Maybe we are getting to the point where the environment is such a serious crisis that it can be litigated, that there are objective standards that can be imposed by the court,” said Grey.
The seven plaintiffs, ranging in age from 15 to 27, come from different backgrounds and regions of Ontario. The lead plaintiff, Sophia Mathur, 15, lives in Sudbury. She’s been involved in climate activism for years, and says watching the hearings unfold has been exciting.
“I’m hoping that Ontarians watch this case and they see that the Ontario government isn’t doing enough,” Mathur said.
Mathur says she’s experienced the effects of climate change and extreme weather. In 2019, her family had to leave their home and live in a hotel for six months after a thawing and freezing cycle left ice on their roof that caused it to cave in.
“When you see the effects of climate change in real life … it’s kind of a wake-up call,” Mathur said.
“But scientists are saying it’s going to get worse if we keep at the rate that we’re going.”
She and the other plaintiffs say they’re also arguing on behalf of other Ontarians who face climate impacts.
They argue Ontario’s plan violates their rights under Sections 7 and 15 of the Charter of Rights and Freedoms; the rights to life, liberty and security and the right to equality under the law without discrimination.
They say climate change will disproportionately impact young people who will live through a deteriorating climate and Indigenous communities who are already experiencing climate disasters and seeing their traditional practices disrupted.
Plaintiff Beze Gray is from Aamjiwnaang First Nation near Sarnia, part of a heavily polluted region in southwest Ontario — packed with oil refineries and other large industrial facilities — known to some as “Chemical Valley.”
“It’s jarring how close [the industry] actually is to my community. Like, some of the refineries are right across the street,” said Gray, 27.
Gray says climate change has impacted the ability of Indigenous communities to maintain their culture, which relies on a connection to the land and nature, and threatens to further disrupt their practices and knowledge.
Gray hopes that joining the lawsuit will highlight how the climate crisis particularly affects Indigenous people.
“I worry about future generations having that connection to culture and language change.”
Ontario brings in climate change denier
The plaintiffs’ application includes submissions from a long list of experts to bolster their claims that Ontario’s climate plan and target — a 30 per cent reduction in emissions below 2005 levels by 2030 — is not in line with the goals of the Paris Agreement.
The previous Liberal government had a more ambitious target of a 37 per cent reduction below 1990 levels by 2030. The Tories’ changes will result in about 200 million tonnes more carbon emissions, according to the plaintiffs’ experts.
The Ontario government has argued that fighting climate change is a global responsibility, and that the province’s contribution to global emissions, and its ability to limit global warming, are miniscule.
In addition, it says the federal government is responsible for the country’s emissions and to negotiate on climate action on the international stage.
“That is the appropriate venue for solving this problem, not mandatory supervisory orders from this court,” said Padraic Ryan, one of the government’s lawyers, in court.
Ontario’s Ministry of the Attorney General declined to comment on the case, as it is still before the courts.
One of the experts put up by the government, William van Wijngaarden, is a physics professor at York University and a climate change denier. In his submission for the case, he stated that global climate models have consistently overestimated global warming. He also cast doubt that greenhouse gas emissions are linked to climate disasters like floods, tornadoes and forest fires, which goes against the consensus in climate science and reports from the Canadian government and the Intergovernmental Panel on Climate Change.
Van Wijngaarden is also a part of the CO2 Coalition, a group that has argued that more carbon dioxide emissions are good for the planet, a view out of line with virtually every respected climate research institution in the world.
Van Wijngaarden supported the government’s argument that the province has only a minor role in the global climate.
Hasan sees his participation as a sign that Ontario could not challenge the scientific arguments they put forward. He says by bringing in a full-fledged climate change denier, the province is “essentially” taking a “climate denialist position.”
The province says it takes climate change seriously.
In a statement, the press secretary for Ontario’s minister of environment, conservation and parks says the government “will continue to fight climate change with new initiatives that are flexible to the opportunities, needs, and circumstances of Ontarians while protecting job creators and industry.”
The province is “partnering with industry and making major investments in clean green energy, public transit and electric vehicles,” said Phillip Robinson.
