Ontario Court of Appeal overturns dismissal of human rights climate case

An Ontario Court of Appeal ruling has resulted in significant progress for a group of young Ontario citizens, who claim their rights under the Canadian Charter of Rights and Freedoms have been infringed upon by the Government of Ontario’s failure to comply with its voluntarily imposed statutory obligations to tackle climate change.

Partner Andrew Bernstein spoke with Forward Law Review about the case, explaining the nature of “positive rights” and “negative rights”, which were at the centre of the Court’s ruling.

In Mathur v. Ontario, the Court of Appeal unanimously concluded that the grounds on which the lower court made its decision—resulting in a dismissal in 2023—were incorrect. “In our view, the application judge erred in her analytical approach. This is not a positive rights case,” the justices wrote in their decision.

“The Court of Appeal insisted that it was not a positive rights case, and upheld the distinction (which some have criticized) between positive and negative rights,” Andrew told Forward Law Review.

Positive rights are rights that the government must take action on in order to provide to Canadians, while negative rights are rights that the government must not deprive Canadians of. In the case of Mathur v. Ontario, the Court ruled that because the Government of Ontario enacted the provincial Cap and Trade Cancellation Act in 2018, it “voluntarily assumed a positive statutory obligation to combat climate change,” which must be done in compliance with the Charter.

“[The Court’s] conclusion was there is no positive right to climate policy, but if the government legislates, it has to do so in a way that is constitutionally compliant,” Andrew said.

Andrew also noted the lengths to which the Court went to assess what a “negative right” is. This included referencing the 2005 case Chaouilli v Quebec, in which the Canadian Supreme Court ruled that “it is not the constitutional compliance of the scheme that is challenged by the appellants, but the constitutional compliance of the government measures taken under the scheme that are in issue."

“The Chaouilli decision that the Court of Appeal relied on has rarely been followed and was often considered a ‘one-off’ by the legal community rather than a generally applicable precedent,” he said.

The case of Mathur v. Ontario marks the first justiciable climate claim in Ontario. 

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