Climate Justice

My Summer Fellowship at the Canadian Environmental Law Association

Posted on by Tal Schreier

by Olivia Parker

This summer, I had the privilege of being sponsored by the David Asper Centre for Constitutional Rights through the Yaremko Fellowship program to work with the Canadian Environmental Law Association (CELA) in Toronto. Founded in 1970, CELA is a legal aid clinic dedicated to advancing environmental justice for low-income Ontarians. Over its long history, CELA has been involved in significant cases such as representing residents of Walkerton during the 2000 drinking water tragedy, and ongoing litigation on behalf of citizens in Elliot Lake seeking a cleanup order for uranium waste used as backfill in their homes.

Environmental Legal Action Guide

Asper Centre/CELA Environmental Legal Action Guide, 2025

During my time at CELA, I worked on several projects and researched a range of pressing environmental law issues. I helped finalize an Environmental Legal Action Guidebook created in partnership with the Asper Centre. This guide, which originated as an Asper Centre working group project, is a 73-page, five-chapter detailed resource designed for activists seeking to use Canadian law to advance environmental justice. It covers Ontario’s Environmental Bill of Rights, nuisance law, the Charter of Rights and Freedoms, Indigenous rights, and law reform strategies. I edited the Guidebook to make it more accessible and prepared it for publication. I hope it will be a practical tool for communities and advocates across Canada.

Early in the summer, I examined U.S. state-level environmental justice legislation to identify potential reforms for Ontario. I found examples from four states requiring developers to conduct cumulative impact assessments when proposing facilities in vulnerable communities—considering both the facility’s direct effects and existing environmental risks. These insights could guide similar proposals here in Ontario to strengthen environmental protections.

I also researched ways to improve environmental protections for migrant farm workers in Canada, many of whom face dangerous exposure to extreme heat and pesticides—both on the job and in employer-provided housing, which currently has no upper temperature limit. Drawing from U.S. and European statutes and advocacy initiatives, I developed recommendations including “right-to-know” pesticide hazard laws and an upper temperature standard for housing.

CELA, in partnership with the Canadian Association of Physicians for the Environment, recently released a poster outlining how recipients of Ontario Disability Support Program (ODSP) or Ontario Works (OW) can apply for funding for air conditioning units. Although funding is discretionary and requires a doctor’s note, we received numerous reports of applicants being denied despite meeting the medical requirement. I contacted multiple ODSP/OW offices across Ontario to gather information on how municipalities allocate this funding—research that could help shape future law reform.

In Ontario, public health units are required to identify populations particularly vulnerable to climate change and develop strategies to reduce these impacts. Of the 29 health units in the province, 17 have completed such assessments. I reviewed these assessments to produce a report highlighting vulnerable communities across Ontario. Consistently, children, seniors, and people of low socioeconomic status were identified as most at risk. Many health units also highlighted those who are chronically ill, Indigenous peoples, and newcomers to Canada. CELA intends to use these findings to inform policy recommendations that will better support these groups as climate change impacts intensify.

I am deeply grateful to the Asper Centre and CELA for making this experience possible. Over the summer, I developed my legal research and writing skills while engaging with complex and urgent issues in environmental law. I highly recommend this fellowship to other law students and look forward to continuing my work in environmental and constitutional law.

Olivia Parker is a rising 2L JD Candidate (2027) at the Faculty of Law and was the Asper Centre fellow at CELA this summer. 

Ontario Court of Appeal Allows Appeal by Youth Climate Litigants in Charter Challenge to Ontario’s Emissions Targets

Posted on by Tal Schreier

by: Chelsea Gordon and Daniel Kiesman

For the first time in Canada, an appellate court has considered the implications of the Canadian Charter of Rights and Freedoms (“Charter”) on climate change policy. In a decision released on October 17th, the Ontario Court of Appeal allowed the appeal in Mathur v Ontario[1] and remitted the application to be heard again by the Superior Court. In doing so, the Ontario Court of Appeal identified errors in the lower court judge’s analysis of the appellants’ case under ss. 7 and 15(1) of the Charter. This decision represents a significant win for youth climate activists.

The Asper Centre, represented by Ewa Krajewska, intervened in this case at both the Superior Court and the Court of Appeal.

Background

Superior Court Judgement

In the judgement on appeal at the Ontario Court of Appeal, a Justice of the Superior Court rejected the applicants’ constitutional challenge to the greenhouse gas emissions target set by the Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

In 2018, the Government of Ontario, through s. 3(1) of the CTCA set an emissions reduction target of 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030. The applicants are a group of young Ontarians who argued that the target set by Ontario was too low, leading to adverse future consequences for young people and future generations.

At the Superior Court, the applicants advanced two Charter arguments. First, by failing to 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(1) of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change.

The judge characterized the applicants’ complaint as being a positive rights claim, suggesting that the applicants were seeking a declaration that the Ontario government has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[3]

You can read the Asper Centre’s Superior Court factum here. For a more in depth discussion of the Superior Court decision, please see the Asper Centre’s previous blog post here.

After framing this as a positive rights case, the judge went on to assume without deciding that a positive obligation arose in this case, but that Ontario did not violate the principles of fundamental justice when setting the emissions target.[4] On that basis, no violation of s.7 was found.  In deciding the applicants’ s.15(1) claim, the judge applied the two-part test from R v Sharma.[5] She held that while young people are disproportionately affected by climate change, that disproportionate effect is caused by climate change itself and not by the emissions target set by Ontario.[6] On this basis, she found that the government of Ontario had not caused or contributed to the disproportionate effects of climate change faced by young people. Further, there is no positive obligation on the government to address inequalities through remedial legislation.

Arguments on Appeal

The applicants appealed the Superior Court decision alleging that the application judge erred by characterizing their ss. 7 and 15(1) Charter claims as attempts to impose positive obligations on the Government of Ontario to combat climate change. Their position was that Ontario’s chosen response to climate change knowingly permits dangerously high levels of greenhouse gas emissions, which will discriminate against youth and future generations, and that both the Target and the Plan should be reviewed for constitutional compliance.

Ontario focused its arguments primarily on the issue of remedies, arguing that the appellants’ request for a science-based greenhouse gas reduction target was outside the court’s institutional capacity to order. Further, Ontario argued that the appellants’ have not proven that Ontario has caused or contributed to the worsening impacts of climate change and that the effects claimed are not caused by the Target, Plan or the CTCA.

Asper Centre Intervention

The Asper Centre intervened on two points. First, 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. You can read the Asper Centre’s factum here.

With respect to s. 15(1), the Asper Centre urged the Court of Appeal to reinforce the flexible approach to causation in the context of governmental emissions targets. The Asper Centre emphasized that the caselaw has made clear that substantive equality is at the centre of s.15(1). To achieve substantive equality, courts must adopt a flexible approach to causation and consider the actual impact of the impugned law on the claimant group. Claimants need not show that the impugned law is the only or predominant cause of the disproportionate impact. Under the proper approach to causation, the claimants need only to show that the impugned emission targets contribute to the disproportionate effects of climate change. In this way, substantive equality may be achieved by allowing s. 15(1) to remain flexible to account for pre-existing problems such as climate change.

The Asper Centre also argued that the application judges’ approach, which viewed climate change itself as the cause of the disproportionate impact on youth, harkens back to the rejected formalistic approach to equality taken under the Canadian Bill of Rights. Instead, the Asper Centre argued that the application judge should have followed the approach to substantive equality taken by the Supreme Court of Canada in cases like Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux and Quebec (Attorney General) v A.[7] These cases recognized that while the government was not responsible for the underlying inequality, all that the claimant must show is that the government action contributes to a disproportionate impact.

With respect to s. 24(1) remedies, the Asper Centre argued that if a Charter violation is found, the Court can be creative in utilizing its remedial discretion under s. 24(1). The Asper Centre argued that, in this case, declaratory relief would be insufficient since the impacts of climate change and inadequate government action present complex and novel issues for the legal system. The Asper Centre submitted that when faced with novel issues, courts are able to fashion unique remedies under s. 24(1).

For a more fulsome discussion of the Asper Centre’s intervention before the Ontario Court of Appeal, please see our previous post here.

Decision of the Ontario Court of Appeal

In a unanimous decision, the Ontario Court of Appeal held that the application judge erred in characterizing this as a positive rights case. They stated, “Ontario voluntarily assumed a positive statutory obligation to combat climate change and to produce the Plan and the Target for that purpose. Ontario was therefore obligated to produce a plan and a target that were Charter compliant.”[8] The Justices allowed the appeal owing to the errors in the lower court judgement but declined to decide the issues and instead remitted it back to the Superior Court to be heard again. They chose not to decide the issues based on the “institutional advantage” that courts of first instance have in issuing declarations and directions.[9]

Section 7

In the s. 7 analysis, the Ontario Court of Appeal found that the application judge’s incorrect framing of the issue as a positive rights claim has led to errors in her reasoning. The Court stated, “The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter complaint.”[10]

Section 15(1)

The Court held that the application judge had again erred by characterizing the appellants’ claim as a positive rights claim. In the case of s.15(1), this led the application judge to incorrectly conclude that the applicants sought to impose an obligation on the government to remedy inequality associated with climate change. The Court of Appeal emphasized that while s. 15(1) does not impose a general obligation on the state to remedy all inequalities, when a government has chosen to act, that legislation cannot have a discriminatory impact.[11]

The Ontario Court of Appeal held that the application judge’s analytical error in construing the appellants’ position as a positive right claim led to an improper causation analysis. The Court’s reasons indicate that the causation analysis at the first step of the s. 15(1) test should be flexible and responsive to the nature of the particular adverse impact claim.  Thus, the Court of Appeal held that proper causation analysis in this instance should have gone further and considered whether, by committing itself to a greenhouse gas emissions target that fell short of the scientific consensus on what was required, Ontario has caused or contributed to a disproportionate impact.[12] Because the province has chosen to enact the CTCA, the proper analysis should have addressed whether “there was a link or nexus between the impact of the Target and the disproportionate impact based on a protected ground.”[13]

Additionally, the Court of Appeal determined that the application judge’s causation analysis was at odds with her findings under s. 7.[14] The application judge held that the appellants had met their causation burden of showing the CTCA engaged their rights to life and security of the person. The Court of Appeal noted that the causation burden under both s. 7 and s. 15(1) is the same in that a claimant does not need to show that state action is the dominant cause of the harm.[15] By finding that the causation burden was met under s. 7 and not under s. 15(1), the application judge drew conclusions which the Court of Appeal determined were inconsistent and not adequately explained.[16]

Implications Moving Forward

The Court of Appeal declined to decide the application and instead remitted the case back to the Superior Court for a new hearing.[17] Thus, the case will return to the Superior Court for the s. 7 and s. 15(1) issues to be decided on the merits and in light of this decision.

Overall, this decision is an important signal that Charter challenges of climate change legislation are not necessarily positive rights claims. In this case, the Court of Appeal made clear that while climate change is a global issue when a provincial government chooses to act to address it, the choices it makes are subject to review to ensure they are compliant with the Charter. Going forward, this case solidifies the role of the judiciary with respect to climate change and other remedial legislation. Ensuring that in the division of powers, the judiciary will maintain a role in reviewing legislation for constitutional compliance and, more than anything, leaves open the door to a finding that insufficient climate change action violates Charter rights.

This decision is also important as it is one of the first appellate decisions regarding s. 15(1) since the Supreme Court released its decision in Sharma.[18] The Court of Appeal recommitted to the flexible approach to causation that a substantive approach to equality requires. This decision makes clear that a rigid and formulaic approach to causation is improper and inadequate. Where a pre-existing societal inequity exists, and a government chooses to act to address it, courts must not focus only on pre-existing inequity at the causation stage of the analysis. Instead, as the Court of Appeal indicated in its reasons, courts must adopt a flexible approach to causation that considers the underlying contextual factors and examine whether the government action in question contributes to the inequality in question. In this instance, as the Court of Appeal concluded, the proper approach to causation necessitates an inquiry into whether the impugned emissions targets contribute to a disproportionate impact on youth.[19]

Chelsea Gordon and Daniel Kiesman are 3L JD Candidates at the Faculty of Law, and were Asper Centre Clinic students in Fall 2023, who worked on the Asper Centre’s intervention in Mathur.

[1] Mathur v Ontario, 2024 ONCA 762 [Mathur CA].

[2] Mathur v Ontario, 2023 ONSC 2316 [Mathur]; Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3]  Mathur, supra note 2 at paras 122-124.

[4] Ibid at para 142.

[5] R v Sharma, 2022 SCC 39.

[6] Mathur, supra note 2 at para 178.

[7] Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17; Quebec (Attorney General) v A, 2013 SCC 5.

[8] Mathur CA, supra note 1 at para 5.

[9] Ibid at para 7.

[10] Ibid at para 53.

[11] Ibid at para 40, 55-58.

[12] Ibid at para 58.

[13] Ibid at para 57.

[14] Ibid at para 59.

[15] Ibid at para 61.

[16] Ibid at para 65.

[17] Ibid at para 76.

[18] R v Sharma, 2022 SCC 39.

[19] Mathur CA, supra note 1 at para 58.

Asper Centre Intervenes in Climate Change Case at ONCA

Posted on by Tal Schreier

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.

Asper Centre intervenes in Mathur et al v His Majesty the King in Right of Ontario

Posted on by Tal Schreier

On January 15, 2024, the Asper Centre will be intervening in the case of Mathur et al v His Majesty the King in Right of Ontario at the Ontario Court of Appeal, generously represented by our counsel and recent Constitutional Litigator in Residence Ewa Krajewska of Henein Hutchison Robitaille LLP.

This case, which commenced in 2019, involves a Charter challenge to the Ontario government’s legislative response to climate change, more specifically its adoption of weaker greenhouse gas emissions reduction targets with the passing of the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13. It is the first Charter challenge in Ontario against government actions taken related to climate change to reach a full hearing on its merits.

The Appellants are a group of 7 youth climate justice activists and their guardians, who assert that the dangers and existential risks posed by climate change violate the Section 7 and 15 Charter rights of Ontario youth and future generations.

Although the court at first instance found that the issues in the application were justiciable, it decided that the appellants had not established any violation of Charter sections 7 or 15.  

The Asper Centre is intervening on two issues in this appeal: the proper interpretation and application of the causation requirement in s. 15(1) of the Charter, and how the remedies available under s. 24(1) of the Charter can meaningfully vindicate the rights and freedoms of vulnerable claimant groups.

You can read our factum at the ONCA appeal here. The Asper Centre previously intervened in this case at the Ontario Superior Court of Justice. You can find our factum in that court here.

Reflections on Climate Justice and the Law

Posted on by Tal Schreier

by Carson Cook, Eva Boghosian and Hannah West

As members of the 2023-2024 Environmental Rights Student Working Group at the David Asper Centre for Constitutional Rights, eleven first year students at the University of Toronto Faculty of Law have been researching various legal doctrines, legislation, and case law related to how environmental rights are conceived in Canada, how they can be used/acted upon, and how they might be improved. Their research has covered environmental constitutional litigation like Mathur v Ontario; how Indigenous rights and knowledge interact with environment law; and, legal doctrines from other jurisdictions that provide environmental protection. The outcome of this research will be a guidebook that informs community organizers and activists of the state of environmental rights within Canada.

To take part in the Global Day of Action for Climate Justice, we asked these students to reflect on their research and the potential for climate action within Canada. A common theme, and perhaps a surprising one, was positivity surrounding Canada’s ability to pursue climate action within its legal framework. Though the students identified various issues of implementation, they appreciated finding processes within the Canadian legal system that can support environmental protection and climate action. Students also valued their research as it provided them with an opportunity to learn about other jurisdictions and the processes used internationally that could be adopted within Canada. Though, in addition to issues of implementation, the students noted the legal system only moves in small steps. However, the students noted they felt more empowered to think about furthering climate action with their new knowledge of these environmental legal frameworks.

Another recurring insight from the students was how important education for the general public is for meaningful climate action – highly relevant to the Environmental Rights Working Group’s goal of creating a guidebook for lay-people to understand their legal rights with respect to the environment. As law students and future lawyers, we are in positions of privilege to have the tools and training to research complicated theories and frameworks that greatly affect how climate action is pursued, and we therefore have a duty to help educate those around us. Importantly, the students noted, this education should not simply be providing information, but conducted in a way that empowers people – to build their skills, knowledge, and confidence so that they can work and learn in the environmental space to further change.

Such education builds power for all of us to push for change, as legal professionals or otherwise. This was the final theme from our reflection session with the student researchers – the importance of an analysis of power when working for climate justice. While legal processes can be and have been created to further environmental protection, those processes can be subverted when there is a power imbalance between adversarial parties. While law affects social values, social values also affect the law. The collective power of a community asking for change or participating in decision-making processes is key for climate action to occur. This is not to pin the causes of climate change on individuals, but it is to recognize the agency and power we each hold, and that builds when we work together to tackle otherwise insurmountable problems. The Environmental Rights Working Group has been one small way in which we, as law students, are building power within ourselves, amongst each other, and within our Toronto community.

Carson Cook, Eva Boghosian and Hannah West are JD Candidates at the Faculty of Law and are the Asper Centre Environmental Rights Working Group leaders this year.