Meet Ewa Krajewska, our new Constitutional Litigator in Residence

by Emma Davies

Ewa Krajewska, a civil litigator and partner at Henein Hutchison Robitaille LLP, is co-teaching the Asper Centre’s clinic course as the 2023 Constitutional Litigator in Residence. Over the summer, I sat down with Ms. Krajewska to discuss both her career to date and her new role.

Even prior to law school, Ms. Krajewska enjoyed studying subjects like economics and politics because they were oriented toward making systemic change. She similarly became interested in practicing constitutional law during her clerkship with former Supreme Court Justice Rosalie Abella. As she explained, “I’ve always been interested in constitutional law from the perspective of how we organize the relationship between a country’s citizens and government to ensure that a democracy properly protects its minorities.” She cemented this interest as an associate at a national law firm, where she represented a number of institutional clients and public bodies.

Ms. Krajewska’s career in litigation has also allowed her to become a life-long learner. “Every case is a window into a universe that you would not normally know about. It’s like one of those very deep and focused New Yorker articles on some obscure topic.” Her past cases have allowed her to learn about everything from liver transplants to the relative value of buildings in downtown Toronto. In her view, litigation is the perfect career for anyone who is curious not just about the law, but about the world in general.

When asked about cases from her career, Ms. Krajewska highlighted two as particularly memorable: a judicial review application regarding the Chief Electoral Officer, and a challenge to the federal government’s use of the Emergencies Act in 2022. The former was expedited because of the election schedule, meaning that she had the rare opportunity to litigate a case from start to finish in just six weeks. The latter case was equally unique in that it involved a government Act that is almost never invoked and delved into issues like how Cabinet confidences should be treated in extraordinary circumstances. As she explained, “it’s a lot of fun to litigate these hard, new, complex issues and propose to the court the right way of interpreting the factual record.”

Looking ahead to her new role, Ms. Krajewska spoke about her love of teaching. As part of the clinic course, she particularly wants to show students the importance of marshalling the factual record to help achieve desired constitutional outcomes. I also asked Ms. Krajewska what advice she would give to current law students: “I think sometimes we’re dissuaded from taking classes in areas of law that we’re less interested in, but there’s something to be said for taking classes from excellent teachers.” Some of her favourite classes from law school had nothing to do with constitutional litigation, and yet she still relies on the skills she learned from those classes to this day. As she put it, “it’s important to give yourself the permission to have some fun, and to take the classes that may not have been on your radar.”

This interview has been edited for clarity

Emma Davies is a 2L student at the Faculty of Law and was an Asper Centre Summer Research Assistant in 2023

Constitutional Litigator in Residence for 2023

We are pleased to announce that Ewa Krajewska has been selected as the Asper Centre’s Constitutional Litigator in Residence for Fall 2023.

Ewa will be co-teaching the Asper Centre’s Clinic Course in the Fall 2023 term with our Executive Director, Cheryl Milne. This course offers upper year law students at the University of Toronto the unique opportunity to engage in Charter rights advocacy, including Charter litigation. Ewa will bring her extensive constitutional litigation experience to the role and will greatly enrich the Asper Centre’s Clinic students next term. Amongst other projects, Ewa will work with students on the Asper Centre’s intervention in the Mathur climate justice case at the Ontario Court of Appeal.

Ewa Krajewska, B.A. (McGill) 2004, LL.B. BCL (2008), was called to the Bar of Ontario in 2009. She has practiced civil litigation for 14 years, specializing in public and constitutional law. She practiced at a large national firm for 12 years before joining Henein Hutchison Robitaille LLP in January of 2022. She was counsel to the Canadian Civil Liberties Association on the Public Order Emergency Commission. She has appeared at all levels of court including at the Supreme Court of Canada on important constitutional and estates matters.

View the Asper Centre’s past Constitutional Litigators in Residence HERE.

In Mathur v Ontario Court Rejects Charter Challenge to Ontario’s Emissions Target  

by Daniel Kiesman

In Mathur v Ontario[1] the Ontario Superior Court of Justice rejected the constitutional challenge to the greenhouse gas emissions target set by Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

Background

In 2018, the Government of Ontario through s. 3(1) of the CTCA set an emissions reduction target at 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030.  The Applicants, a group of young Ontarians, argued the target set by Ontario was too low, failing to adequately address climate change and leading to adverse future consequences for young people and for future generations.

The Applicants advanced two Charter arguments. First, by failing set the target high enough Ontario was authorizing and creating a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk, violating s. 7 of the Charter. Second, the Applicants argued the CTCA violates s. 15 of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change. In so doing, the Applicants argued the CTCA perpetuated a disadvantage since young people and future generations lack political decision making power and their interests are often ignored.

Justiciability

The judge found the challenges regarding the emissions target set by Ontario to be justiciable.[3] This is notable because the Federal Court found a past challenge to government climate action to be non-justiciable. In La Rose v Canada, the Federal Court held that a constitutional challenge of the Federal Government’s greenhouse gas emissions target was non-justiciable because the challenge was not focused on specific government action or legislation but rather focused on the Federal Government’s overarching policy positions regarding climate change.[4] The La Rose case was similarly brought by a group of young people concerned about the impacts of climate change and the decision in that case is currently under appeal to the Federal Court of Appeal. Nevertheless, the ruling in Mathur signifies that Charter challenges to government climate action can be justiciable when they are focused on a specific government action, which in this case was the target set under s. 3(1) of the CTCA.

Section 7

Under the s. 7 analysis the judge characterised the Applicants’ complaint as being that the emission target set by Ontario was not high enough. Therefore, the judged interpreted the Applicants’ s. 7 claim as a positive right claim, suggesting the Applicants were seeking a declaration that Ontario has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[5] While noting in Gosselin v Quebec (Attorney General) the Supreme Court rejected the idea s. 7 creates a general positive obligation on governments to ensure citizens have the benefits of life, liberty and security of the person, the judge highlighted that Gosselin left open the possibility of positive obligations under s. 7 in certain unique circumstances.[6] The judge found that, “the Applicants make a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under s. 7 of the Charter.”[7] The Court appeared open to the idea that the impacts of climate change could be special enough to for a court to impose a positive obligation but noted that if such a positive obligation were to be found there would likely be a different s. 7 analytical framework used in such cases. Ultimately, the judge assumed without deciding that a positive obligation under s. 7 arose in this case but went on to reject the s. 7 claim on the grounds that Ontario, in setting the emissions target, did not violate any principles of fundamental justice.[8]

While the result of the s. 7 analysis in this case may be disappointing to those concerned about the effects of climate change and government inaction, the Court’s analysis in Mathur presents a potentially important pathway forward for climate change focused constitutional litigation. The decision shows that courts may be open to imposing positive obligations on governments under s. 7. The decision is also notable for recognizing the unique and pressing challenges climate change posses to Canadian society such that climate change can be considered a special circumstance as articulated in Gosselin which may give rise to a positive obligation under s. 7. Furthermore, this decision adds to a growing chorus of courts across Canada which have expressed openness to the possibility that there may be a positive obligation on governments to adequately combat climate change. In La Rose the Federal Court did not foreclose the possibility that such positive obligations could exist.[9] In Kreishan v Canada (Citizenship and Immigration) the Federal Court of Appeal cautioned that s. 7 should not remain simply “frozen in time”[10] and expressly listed climate rights as a domain in which positive obligations under s. 7 could arise.[11] These decisions show that future litigation may be able to persuade a court that there are positive obligations on governments, under s. 7, to adequately combat climate change.

Section 15

With respect to the Applicants’ s. 15 claim, the Court applied the s. 15 test following the guidance given recently by the Supreme Court in R v Sharma.[12] At the first step of the test the judge accepted that young people are disproportionately affected by climate change.[13] However, the judged stressed that any disproportionate impact is caused by climate change itself and not by emissions targets set by Ontario through s. 3(1) of the CTCA.[14] As such, the Applicants’ claim failed to show Ontario’s actions created or contributed to the disproportionate affects of climate change faced by young people. While the emissions target is not high enough to thwart the impacts of climate change, the emissions target itself does not cause or contribute to the adverse effects of climate change that young people will face. Given the requirements set out in Sharma for claimants to show causation at the first stage of the s. 15 analysis, the judge concluded the s. 15 must fail because the requisite causation could not be established in this case.[15]

The judge, echoing the Supreme Court in Sharma, also noted there is no positive obligation of governments to address inequalities through remedial legislation.[16] The emission target is part of a remedial scheme aimed at addressing climate change. The Supreme Court stated that when a government chooses to address inequality it can legislate incrementally and leave gaps between members of protected groups who may be affected by such legislation and members of non-protected groups unaffected by such legislation.[17] The emissions target in question were viewed by the Court as incremental and remedial legislation Ontario chose to enact to address the issue of climate change. Therefore, any gap the CTCA creates does not in itself infringe s. 15.[18]

The Applicants also advanced a s. 15 argument claiming that since the impacts of climate change will only get worse over time, young people and future generations will face the brunt of impacts of climate change since they will live longer into the future. The judge also rejected this argument. The Court again noted that a claim relating to the effects of climate change on future generations fails to meet the causal burden at the first step of the s. 15. The more impactful future effects of climate change are not caused by Ontario’s emissions target but caused by climate change.[19] Furthermore, the judge appeared skeptical that the Applicants could even advance a s. 15 claim on behalf of future generations. Since everyone who lives into the future will be affected by climate change, this is not a distinction based on age because people of all ages will face the impacts of climate change in the future. Therefore, the judge held the Applicant’s claim is based solely on a temporal distinction and cannot succeed because such a distinction is not an enumerated or analogous ground.[20] Even if future generations could be considered to fall under the enumerated ground of age, or recognized as an analogous ground itself, the judge held that the claim would still fail. Citing Sharma, the judge noted that the disproportionate effects felt by future generations, would be a “gap” which already existed and was left unaffected by emissions target set by Ontario and therefore would not infringe s. 15.[21]

Mathur illustrates the impact of the decision in Sharma on s. 15 claims. The evidentiary burden on claimants to show a government action “creates or contributes to a disproportionate impact,”[22] at the first stage s. 15 test and the Supreme Court’s assertion that it does not infringe s. 15 to leave gaps between different groups so long as government action did not cause those gaps are important developments which drive the judge’s s. 15 analysis in this case.[23] This guidance in Sharma may prove to be difficult hurdles to climb for litigants bringing s. 15 challenges to government climate actions. Governments do not create or cause climate change. While governmental inaction will not abate the adverse consequences of climate change, it may prove difficult to show inadequate government action independently cause the impacts of climate change to worsen. Furthermore, as the judge accepted, young people already bear the brunt of the impacts of climate change. However, the gap between young people and other groups in society in relation to the adverse effects of climate change is again created by climate change. Government actions which will fail to remedy the issue of climate change will simply leave these gaps unaffected and therefore, per Sharma would not infringing s. 15.

Looking Forward

Mathur was the first case to substantively tackle a constitutional challenge to a government climate change policy and there are important takeaways to consider moving forward. First, constitutional challenges to government climate actions need to be aimed at specific government actions or legislation in order to be justiciable. Simply pointing to a broad constellation of government policies or positions on climate change will likely be viewed by courts as non-justiciable. Second, courts appear to be open to entertain arguments that climate is a special domain in which positive obligations on governments could potentially arise under s. 7. Given the right case with the right facts this could prove to be an exciting area for significant development of the law and advance climate activists’ cause. Third, the decision in Mathur illustrates that, given the majority decision in Sharma, s. 15 challenges to government climate actions will likely prove difficult to successfully make out. Overall, while the result in Mathur may be discouraging for individuals concerned about climate change, the decision shows there remain potentially viable avenues for future successful constitutional challenges to government climate actions.

Daniel Kiesman is a 1L JD candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant

[1] Mathur v Ontario, 2023 ONSC 2316 [Mathur].

[2] Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3] Mathur, supra note 1 at para 106.

[4] La Rose v Canada, 2020 FC 1008 at paras 40—41 [La Rose].

[5] Mathur, supra note 1 at paras 122, 124, 132.

[6] Ibid at paras 125, 137 citing Gosselin v Quebec (Attorney General), 2002 SCC 84 at paras 81—83.

[7] Ibid at para 138.

[8] Ibid at paras 142.

[9] La Rose, supra note 4 at paras 69—72.

[10] Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 139.

[11] Ibid.

[12] R v Sharma, 2022 SCC 39 [Sharma].

[13] Mathur, supra note 1 at para 178.

[14] Mathur, supra note 1 at para 178.

[15] Ibid citing Sharma, supra note 12 at para 42.

[16] Mathur, supra note 1 at para 178 citing Sharma, supra note 12 at paras 40, 63.

[17] Sharma, supra note 12 at paras 40, 63—64.

[18] Mathur, supra note 1 at para 178.

[19] Ibid at para 179.

[20] Ibid at para 180.

[21] Ibid at para 182.

[22] Sharma, supra note 12 at para 42.

[23] Ibid at paras 40, 42; Mathur, supra note 1 at para 178.