Another week, another courtroom, another defeat for Doug Ford on climate change

OPINION: Young people will get their day in court to hold Ontario to account on behalf of future generations — if the latest Tory defeat holds up
By John Michael McGrath - Published on Nov 16, 2020
The Tories lowered the Liberals’ target for the reduction of greenhouse-gas emissions. (iStock/sandsun)

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Let us now take a brief break from the global health crisis that governments around the world are dropping the ball on and pivot to the global crisis they’d already been dropping the ball on: climate change. Specifically, the Progressive Conservative government of Ontario’s decision to limit its climate policy ambitions by lowering the Liberals’ target to reduce greenhouse-gas emissions.

Last week, the government lost yet another climate battle in court when an Ontario judge decided that a case against its less ambitious plan could proceed to a full hearing. Several young people (ranging in age from 12 to 24) argued that the decision to pursue less stringent GHG reductions amounts to a violation of their Charter rights. They asked the court to order the government to adopt a “science-based” target and want a declaration that a stable climate is part of our Charter rights.

The government had asked the court to toss the case on several grounds, including that this is fundamentally not a matter for the courts and that the applicants have no reasonable prospect of winning. Justice Carole Brown of the Ontario Superior Court disagreed and dismissed the  motion.

(Confession: I didn’t pay close attention to this case when the motion was being argued, because of such time-honoured journalistic reasons as “something else was happening” and “I was pretty sure they’d lose,” so let that be a lesson to the reader. Other journalists were paying closer attention at the time.)

The province’s 2018 climate plan had already been lambasted by environmentalists and Ontario’s own auditor general, who found that it may barely have reduced GHG emissions at all by the target year of 2030. And Brown’s decision gives us another reason not to take the plan seriously: namely, the government doesn’t. Arguing that the climate plan ought not to be subject to judicial review, lawyers said that the plan isn’t a legally binding document; it’s simply “an expression of the provincial government’s intentions and aspirations.” Which would be amusing enough without the additional wrinkle that the government had previously argued — in its court challenge to the federal carbon tax —that its plan is strong factual evidence that provincial climate policy is sufficient without any kind of federal price on GHG emissions.

So if we take Ontario at its word across multiple court hearings: the province’s climate plan is strong and robust enough that Ottawa shouldn’t impose any kind of carbon tax, but it’s not actually legally binding on the government in any way that a court should subject to scrutiny. Clear?

The fact that Ontario’s climate plan isn’t worth much is not, in itself, enough to bring the government to court, and it’s certainly not enough to prevail. The applicants in this case still have a substantial hill to climb. Their arguments are that the province’s climate defeatism amounts to a breach of their Charter rights under sections 7 (security of the person) and 15 (freedom from discrimination based on age). They are saying, in court, that the decision to allow more GHG emissions will have the direct consequence of making their lives less safe and that the consequences of climate change will be most acutely felt by young people, who will have to live in the future — so allowing the future to get worse through our inaction amounts to discriminatory conduct by the government.

It is, Brown acknowledged, a novel argument. And it might not end up getting a full hearing: the government still has the right to seek a kind of appeal and may ask a higher court to overrule her decision and dismiss the case outright. Even if the case goes to trial, the obstacles to success are substantial. One of the few precedents for this kind of case — from the 1980s and ’90s, when the activist group Energy Probe tried to nullify the federal government’s policy of limiting the liability of nuclear-power plants — survived the government’s attempt to dismiss the case but still failed at trial.

But, even if they win, and even if that victory is upheld by whatever appeals courts eventually hear it, it’s hard to imagine that Canada’s courts are going to want to wade into the mire of details that a declaration of a Charter right to a stable climate would entail. Are judges going to want to be the ones deciding motor-vehicle mileage or the specific chemistry of heating and transportation fuels? It’s true that courts have been willing to make decisions with broad impacts before, but this would be something nearly revolutionary.

So as much as the current government’s climate policy has earned some deserved judicial derision, and as much as it will be interesting to see where this case leads, Ontarians may want to temper their expectations about achieving these kinds of broad policy changes through the courts. There’s no substitute for winning elections.

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