Asper Centre Intervenes in Climate Change Case at ONCA

by Chelsea Gordon, Daniel Kiesman and Sang Park

On January 15, 2024, the Asper Centre intervened before the Ontario Court of Appeal in Mathur v Ontario. The Asper Centre’s Constitutional Litigator in Residence Ewa Krajewska acted as counsel for the Asper Centre in this intervention. As students in the Asper Centre Clinic course this past term, we had the opportunity to contribute to the intervention by conducting research and drafting versions of the factum as part of our clinic coursework.

Mathur is a significant case because it is the first time that substantive legal issues of a constitutional challenge to insufficient government action to address climate change has been before an appellate court in Canada. Furthermore, this case is also one of the first s. 15(1) Charter cases to reach an appellate court since the Supreme Court modified its approach to s. 15(1) in R v Sharma.[1]

Background

The appellants are a group of seven young Ontarians. The appellants challenge a 2018 decision by the Government of Ontario to lower the province’s greenhouse gas emissions target to 30% below 2005 levels by 2030. Ontario set this target despite scientific research showing 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. As a result, the appellants argue that this emissions target violates s. 7 of the Charter by allowing a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk. The appellants also argue that the emissions target violates s. 15(1) of the Charter because young people and future generations will disproportionately bear the burdens and face the adverse effects of inadequate climate change policy.

The Superior Court of Ontario held that the appellants’ challenge was justiciable but dismissed the appellants’ Charter claims.[2] The Asper Centre also intervened at the Superior Court, read the factum here.

With regard to s. 7 the application judge appeared open to the idea that climate change could be the kind of issue area where a positive s. 7 obligation on government could arise and assumed without deciding that a positive obligation arose here.[3] However, the application judge held that the emissions target did not infringe any principles of fundamental justice and therefore did not infringe s. 7.[4] Regarding s. 15(1) the application judge, applying Sharma, held that the claim must fail at the first step of the test as causation cannot be established. The application judge held that causation could not be established because the “disproportionate impact is caused by climate change and not the [emissions] target.”[5]

The Asper Centre’s Intervention at the Court of Appeal

The Asper Centre’s intervention at the Court of Appeal is focused on two issues. First, that the application judge erred by adopting a formalistic approach to causation that has consistently been rejected by the s. 15(1) jurisprudence. Second, given the complexities and the novelty of climate change, should the Court of Appeal find a Charter infringement it ought to go beyond declaratory relief to craft an appropriate and just remedy under s. 24(1) of the Charter.

Read the Asper Centre’s factum here.

In its submissions relating to causation in the s. 15(1) analysis, the Asper Centre traces the history of equality jurisprudence to underscore that substantive equality drives the s. 15(1) analysis and that the application judge erred by abandoning a substantive approach and adopting a formalistic analysis of causation. The Asper Centre notes that from the start, in the first s. 15(1) case Andrews v Law Society of British Columbia, the Supreme Court recognized that a seemingly neutral law may create an unequal impact on a particular group and as a result the s. 15(1) analysis must focus on the impact of the law on a particular group.[6] This approach has been repeatedly affirmed in subsequent Supreme Court decisions. Most recently the importance of substantive equality was reaffirmed in Sharma where the Supreme Court stated it is an “animating norm” of s. 15(1).

Furthermore, the intervention seeks to emphasize that the proper approach to causation must be flexible and contextual. Such an approach does not require that an impugned law be the only cause of an adverse impact. Rather, to establish causation a claimant need only show that a law is a cause. To support this approach the Asper Centre highlights cases such as Fraser v Canada (Attorney General) where an RCMP job-sharing program, which was not in and of itself the root cause of wage inequality, was found to infringe s. 15(1) because it furthered the economic disadvantages women face in society.[7]

Despite these precedents, the application judge adopted a formal and rigid approach to causation, holding that the emissions target did not infringe s. 15(1) because the harms to youth are caused by climate change. This approach harkens back to the rejected approach to equality taken under the Canadian Bill of Rights wherein a provision which restricted access to employment insurance to pregnant women was allowed to stand because the discriminatory impact on pregnant women was not caused by the legislation, but by the fact that the women were pregnant. This approach also departs from the decades of precedent which instruct a flexible and contextual approach that centres substantive equality at the heart of s. 15(1).

Should the Court of Appeal find a Charter infringement the Asper Centre’s submission encourages the Court to be creative and utilize its remedial discretion under s. 24(1) of the Charter to forge an appropriate and just remedy. Declaratory relief will be insufficient in this case as the impacts of climate change, stemming from government inaction present complex and novel issues for the legal system. Faced with novel issues the Supreme Court, in cases such as Ontario v G[8] and Doucet-Boudreau v Nova Scotia (Minister of Education),[9] has crafted unique remedies under s. 24(1). Furthermore, as the Asper Centre notes in its factum, courts in other jurisdictions, such as the German Constitutional Court[10] and the Supreme Court of the Netherlands,[11] which have confronted the issue of inadequate government climate policies have crafted creative remedies aimed at addressing the complexities of climate change.

Chelsea Gordon, Daniel Kiesman and Sang Park are JD Candidates at the Faculty of Law and were Asper Centre clinic students in Fall 2023.

[1] R v Sharma, 2022 SCC 39.

[2] Mathur v Ontario, 2023 ONSC 2316

[3] Mathur v Ontario, 2023 ONSC 2316 at para 82.

[4] Mathur v Ontario, 2023 ONSC 2316 at para 142.

[5] Mathur v Ontario, 2023 ONSC 2316 at para 178.

[6] Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164.

[7] Fraser v Canada (Attorney General), 2020 SCC 28 at paras 92-107, 113.

[8] Ontario (Attorney General) v G, 2020 SCC 38.

[9] Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62.

[10] 1 BvR 2656/18 (2021).

[11] C-565/19 P, C/09/456689 / HA ZA 13-1396.

Clinic Information Session

On July 7, 2022 at 12:30pm the Asper Centre will be taking part in an Information Session, for University of Toronto Faculty of Law upper year students.
This information session will provide details on how to enroll in the for-credit clinical programs at the Asper Centre Constitutional Rights Clinic and Downtown Legal Services for Fall 2022.
Cheryl Milne (Asper Centre ED) and Richard Teicher (DLS Staff Lawyer) will present at the information session with past Clinic students and there will be an opportunity to ask questions.

Students, please check the Internal events calendar listing, by logging into E-legal, for the ZOOM meeting link. Thanks!

Meet Jonathan Rudin, the Asper Centre’s New Constitutional Litigator-in-Residence

 

By Leila Far Soares 

Jonathan Rudin, program director at Aboriginal Legal Services and experienced litigator, will be co-teaching the Asper Centre’s Clinic course as the new Constitutional Litigator-in-Residence for Fall 2021. Mr. Rudin has written widely and spoken passionately on the topic of aboriginal justice and has advocated countless cases before all-levels of Canadian court. We are very fortunate to have him join our faculty at the law school this coming term.  

Mr. Rudin’s interest in the law emanated from a desire to influence social change, a desire which served as the driving force behind his motivation to attend law school. Yet, for just over a decade after graduating and getting called to the bar, he did not work directly in law. Instead, Mr. Rudin opted to work with social justice organizations, where he could focus on fundraising and organizational development: “I wanted to get involved with things that I felt were working more broadly and systemically to address issues,” rather than “putting a Band-Aid on a gaping wound.”  

However, this social justice work ultimately led Mr. Rudin to a career in litigation. His involvement with several indigenous organizations coupled with the knowledge he gained while completing his Masters in Constitutional Law at Osgoode Hall, piqued his interest in indigenous justice and culminated in an opportunity to work for Aboriginal Legal Services. ALS marked the beginning of Mr. Rudin’s engagement with constitutional litigation, allowing him to intervene in a number of significant and noteworthy cases. Of these, Mr. Rudin described R v Gladue and R v Ipeelee as two cases which stand out as most memorable to him. “You don’t always know going in how significant a case will be, how the court is going to take it, or what they are going to focus on.” Mr. Rudin emphasized the real issues and consequences at play in bringing constitutional challenges: “when you do this sort of work, especially if it is constitutional, you don’t just lose for your client, there are bigger issues at play.” 

Mr. Rudin plans to bring the litigation experience he’s gained at ALS to the University of Toronto Faculty of Law this fall, offering students a practical perspective and sharing insights as to what constitutional litigation really entails. He hopes to convey “a sense of how the process works and what it takes.” His experiences speaking before the Court have taught him valuable lessons in what judges want: brevity, clarity, and structure. “Writing a factum or doing oral arguments before the court, you are presenting things to an audience: judges. This is a very different audience, and one we are not familiar with playing to.” He plans to share these lessons, alongside many more, through the clinic.  

In the meantime, I asked Mr. Rudin if there was any advice he could offer to current law students. He remarked how difficult being a law student during a global pandemic must be and the inevitable fatigue that must accompany zoom law. In fact, Mr. Rudin described the challenges he faces as a lawyer working in a COVID world. “A lot of the work I do, it’s not me, it’s a whole team of people working together,” and meeting over zoom can certainly change professional dynamics. Mr. Rudin expressed his hope that next fall he will be able to meet with students in person. To mitigate zoom fatigue and the exhaustion that can come from the demanding nature of law school generally, Mr. Rudin stressed the importance of maintaining interests and activities outside of the law. For Mr. Rudin, this takes the form of regular jam sessions with his band: Gordon’s Acoustic Living Room. 

Additionally, Mr. Rudin encourages current students to keep an open mind as they navigate through their years of law school. Often times, he remarked, students have a pre-conceived notion of what area of law they want to pursue without knowing much about what it really entails. “There are all sorts of areas of law that we know nothing about and the more opportunities you have to try things the better.” He lauded the Asper Centre’s clinic as giving students a real sense of what working in constitutional law encompasses. He encourages students to take the opportunities the clinic has to offer and looks forward to meeting students in a few short months. 

Leila Far Soares is an incoming 2L JD student at the Faculty of Law and is currently one of the Asper Centre’s summer research assistants. 

Clinic Information Session

This information session, for University of Toronto Faculty of Law upper year students, will provide details on how to enroll in the for-credit clinical programs at the faculty including the Asper Centre Constitutional Rights Clinic, Downtown Legal Services, and the Investor Protection Clinic for Fall 2021.
The following Directors will present at the information session and there will be an opportunity to ask questions.
Cheryl Milne, Asper Centre
Prasanna Balasundaram, Downtown Legal Services

Ivy Lam, Investor Protection Clinic

Link to Zoom Webinar can be found in Faculty of Law Events Calendar (internal) here >> Clinic Information Session | University of Toronto Faculty of Law (utoronto.ca)

Remembering Joseph Arvay

The David Asper Centre for Constitutional Rights joins the constitutional law community in mourning the death of Joseph Arvay, O.C., O.B.C., Q.C. Joe Arvay offered his time to the Centre as our first constitutional litigator in residence. Indeed he was the inspiration for the continuing role that has been incorporated into our teaching and advocacy. He gave generously of his time to the students and was an important supporter of our advocacy. Of his time with us, Joe said, “I really enjoyed my experience as the first constitutional litigator in residence at the Asper Centre. It was a joy to work with students again.”

Marcus McCann (JD 2014) was one of the students who worked with Joe on the Asper Centre’s intervention in Bedford v Canada on the role of stare decisis in constitutional litigation: “It was a great pleasure to see Joe’s mind at work. He was very tactical, always five steps ahead in the conversation. That should be obvious from his career. But at the same time, he never lost sight of the goal, of the people who would be helped by litigation. He litigated with heart, even when he was litigating a seemingly bloodless topic like stare decisis.”

At the Centre’s 10th Anniversary Event, Joe joined Mary Eberts, another constitutional litigator in residence, on stage in a discussion with the Hon. Thomas Cromwell on significant issues in constitutional litigation in Canada. The topics were wide ranging with two formidable leaders of the constitutional bar and the former Supreme Court of Canada Justice, from the seminal cases in which they both participated in Andrews v British Columbia, to significant aboriginal rights cases, to the more recent Carter v Canada. Executive Director, Cheryl Milne, noted, “There is no other lawyer in Canada who has litigated as many significant constitutional cases at all levels of Court as Joe. His stamp on constitutional law in this country is monumental. While many lawyers have regularly taken on interventions at the Supreme Court, Joe made it a point to litigate these cases at the trial level.” As he himself noted in reference to his cases involving advanced costs, “We can all do pro bono work as interveners, but try starting a case like Little Sisters, try starting a case like Carter, try starting any of these cases, which involve thousands of hours of work. It would be so much more encouraging for lawyers if they could get costs in advance.”

Professor Kent Roach, the chair of the Asper Centre’s advisory board worked with Joe on number of cases, some focusing on aboriginal rights. He says, with sadness, “Joe was fearless and his intellectual curiosity knew no bounds. His advocacy shaped the Charter of Rights and Freedoms and always in the direction of helping the disadvantaged. He also knew how to have fun and never took himself too seriously. He will be sorely missed.”