Justicability

Introduction:

This paper will examine the implications of the Ontario court of Appeals decision in Mathur v Ontario 2024, as it relates to the conception of justiciability.   The idea is to explore the ramifications of the decisions rendered in Mathur for future constitutional litigation.  This case illustrates why climate change has always been a political ‘hot potato’ and sheds light on the Ontario government’s resolve in this area.  This paper supports the definition of the separation of powers doctrine as representing in the abstract a dividing line between that the courts and the legislatures.  Each having its own role to play while their functions may influence each other.  The aim of this paper is to show how the courts utilize the conception of justiciability to avoid dealing with issues that are properly resoled by legislatures as opposed to the judiciary.  Justiciability considerations can involve many factors such as standing or the doctrine of mootness, but for the purposes of this small essay only discussions surrounding the question of what makes a matter ‘too political’ and ‘too broad’ for the court to involve itself will be touched upon.   Recognizing the confusion (with the aid of courts own dicta) surrounding the subject area, the aim of this paper is to break down how the court make it determination in the context of when a constitutional issue is raised.  Specifically, this paper will deal with constitutional issues involving the Charter of Rights and Freedoms (her after the Charter) challenges.  This endeavour will illustrate how it raises questions of how broad or narrow an issue must be before the court will consider it truly worthy of legal analysis.  This paper will juxtapose the recent considerations made in Mathur on motion by the two opposing rulings in Ontario’s Superior Court and Court of Appeal.  The paper will conclude that a more intensive investigation must be undertaken into the concept of justiciability to determine when matters are ‘too political’ in nature for the courts to answer. 

The case of Mathur et al v Ontario 2024, involves ‘climate change’ that has been part of political debate for years.  What the applicants in this case are seeking, is in part, to force the province of Ontario to increase its carbon emissions reduction goals.  They would like these goals to match the already recognized global standard by accusing the Ontario government of falling behind in the global response to a threat of climate change.  Before the case could be heard on its merits the government of Ontario brought a motion to strike pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, asking the court to strike down the application.  The motion was primarily based on an argument that the matter was not justiciable thus there was no reasonable expectation of success.  The Superior Court of Ontario agreed, dismissing the case only to have their ruling overturned by the Ontario Court of Appeal.  The central issue of the applicants claims according to the Court of Appeal “involves the constitutionality of the greenhouse gas emission reduction target and plan enacted by the Ontario government (“Ontario”) under climate change legislation.  Specifically, can the alleged failure of Ontario to comply with its own voluntarily imposed statutory obligations to combat climate change amount to a breach of the appellants’ ss. 7 and 15 rights under the Canadian Charter of Rights and Freedoms?”[1]  The issue of justiciability primarily involved whether the courts were the proper forum to deal with the points expressed by the applicants.  Climate change as a global threat to the well being of every individual on the planet requires- a united global effort to curtail.  This curtailment requires the implementation of certain control mechanisms, which are to be mandated by governments around the world ensuring a reduction of CO2 emissions.  Different world organizations around the world agree that these reduction targets must be met by certain dates for a likely hood of successful mitigation.  The applicants in Mathur maintain that the government of Ontario is failing in this requirement.  It is this failure that the applicants argue infringes on their rights under both sections 7 and 15 of the Charter. 

Specific Ontario legislation, CTCA is the subject in Mathur.   Initially the Ontario government set out this legislation to reach a specific reduction target that they then later made the decision to lower it.  In summary of the materials filed by the applicants, back in 2018 the province of “Ontario enacted the Cap-and-Trade Cancellation Act, 2018, S.O. 2018, c. 13 (“CTCA”). Section 16 of the CTCA repealed the Climate Change Mitigation and Low-carbon Economy Act, 2016, S.O. 2016, c. 7 (“Climate Change Act”), which had contained greenhouse gas emission reduction targets, and s. 3(1) required the government to set new reduction targets (the “Target”). The Target implemented by Ontario, which is articulated in the “Preserving and Protecting our Environment for Future Generations - A Made-in-Ontario Environmental Plan” (the “Plan”), calls for a 30% reduction of greenhouse gas emissions from 2005 levels by 2030. This is a much smaller reduction than prescribed under the Climate Change Act”[2]. The applicants argue that not only has Ontario by reducing its goals infringed their rights under sections 7 and 15 Charter but that either target set by legislation still falls short of the required targets set by the international community.  Specifically, the legislation itself is under criticism; by extension it implicates the entire scheme of how the government is taking actions towards reducing the global effects of climate change in general.  Further it implicates the government of Ontario’s ability to work collectively in the global arena to combat this threat.   

Each party to this action, in Mathur, agrees that climate change is a direct threat on the lives of everyone on the planet.  Reflecting the evidential record; neither party denies that governments ‘ought’ to act appropriately in a positive manner to tackle this issue[3].  The concentration of green house gases in the earth’s atmosphere is indicated by ppm (parts per million). What amounts of CO2 in the atmosphere has a direct effect on global warming which intern changes the global climate for the worse by heating it up. Today the “current level of global warming is at about 1.1º C warmer relative to the beginning of the Industrial Revolution. The current concentration of greenhouse gases amounts to approximately 401 ppm. Human-induced CO2 emissions continue a global level and over the past decades, the global CO2 emissions have increased by 2% annually, which is why global warming continues unabated. There has been a consensus in the climate science community and the world community for some time that the global temperature should not exceed 2º C. If the concentration of greenhouse gases has not exceeded 450 ppm in the year 2100, there is a reasonable chance that this 2º C target will be achieved. However, the insight has developed over the past few years that a safe temperature rise should not exceed 1.5º C, which comes with a lower ppm level, namely 430 ppm”[4] Without considerations of possible ways to extract the CO2 from the atmosphere itself, problematically for the world, if the current course is not changed, these goals will not be met.  The applicants in Mathur are attempting to push the Ontario government to do its part in respect to this global endeavor to combat climate change.  They hope through the courts to influence the government to increase its reduction of CO2 emission target.

Justiciability is a concept used by the courts that compliments the constitutional principle of the separation of powers.  For subject matter of the court to be justiciable it must be something which the judiciary is the proper forum to deal with, as opposed to the legislative branch.  According to the Ontario Court of Appeal in Mathur “justiciability relates to the subject matter of a dispute.  It is a set of judge-made rules, norms and principles delineating the scope of judicial intervention in social, political and economic life.  If a subject matter is held to be suitable for judicial determination, it is said to be justiciable.  Conversely, if a subject matter is held not to be suitable for judicial determination, it is said to be non-justiciable. The general question is whether the issue is one that is appropriate for a court to decide.”[5]  Section 32 of the Charter mandates that a claimant may only challenge “a state action when seeking a Charter remedy”[6].  Courts as gatekeepers of our constitutional values can often implicate themselves in determining the course of political affairs.[7]  It is true as David Mullan has expressed in his paper, Book Review: Boundaries of Judicial Review: The Law of Justiciability in Canada, by Lorne Sossin, that the word justiciability represents  “ no [other]common language which our judges have used invariably to deal with such problems, and, indeed, on many occasions, what at root were issues of justiciability were categorized under other headings.”[8] The courts must be reluctant and seek avenues as to not step too far over the line into the legislative role (see the separation of powers doctrine).  The scope or parameters of judicial intervention into matters before it will be distanced on a case-by-case basis, where not every case is clearly delineated as to not exceed the courts constitutional position.

Prior to a court providing constitutional consideration to a matter, the issue before it must be braced against proper legal footing.   In the case of Highwood 2018 the Supreme Court of Canada was confronted with determining concerns of theology, begging judicial restraint.  According to the court in Highwood it drew upon the analogy “by way of example, the courts may not have the legitimacy to assist in resolving a dispute about the greatest hockey player of all time, about a bridge player who is left out of his regular weekly game night, or about a cousin who thinks she should have been invited to a wedding: Court of Appeal reasons, at paras. 82-84, per Wakeling J.A.”[9]  This seems at first glance to be an oversimplification, identifying clear matters that are not legitimately within the courts jurisdiction to answer (these examples are easily identifiable as non-legal issues).  Ultimately, the court Highwood stated that some questions they are asked to answer are clearly within their jurisdiction while others are not.  The court did not offer a clear definition of justiciability in Highwood but did outline three considerations where the court would intervene on judicial review.  The third of these aspects pointed to by the court where they would consider a matter was justiciability.  According to the court ‘where even if the courts are able to review a state action that the court would only deal with matters that are justiciable’[10].  For the courts to review an action of the government then their must exist a legal component or basis for it to be a legitimate concern of the court especially for constitutional consideration.  The court is stating that a legal foundation must be clearly grounded as not to press the court into the political arena.   

The issue in Mathur was a Charter challenge to Ontario’s climate change legislation.   The line between what considerations may be ‘too political’ in nature is not easily delineated in every case.  According to Noel Lyon in their essay, An essay on constitutional litigation, the word "legal means in accordance with the law or authorized by law. It finds its standards in statute law or precedent. It assumes legitimacy in the sovereign body that emits laws. The new Constitution with its supremacy clause has removed the assumption of legitimacy and has introduced standards for judicial review of all government action. The resulting questions of constitutionality are better understood as questions of legitimacy rather than as questions of legality.”[11] Considering the Charter, Noel, takes the position that the conception of what may be considered as a government action to be legal constitutionally is better understood as a conception of legitimacy.  This seems to be in line with the Supreme Court of Canada in the Highwood.  Specifically made clear by the Court of Appeal in Mahur is that when Charter challenges arise the issue before the court, for it to be considered justiciable, there must be a question of specific government action.[12]  .   As expressed in Highwood, their must be some legal foundation before questions of constitutionality would be addressed.

This understanding of justiciability by Noel Lyon seems to be in line with the Ontario Court of Appeals remarks in Mathur.  The Court in deciding whether they had the capacity to rule on the issues brought before it on ‘climate change’ looked at the potential of the issue being too broad. According to the court “to determine a matter that is alleged to be nonjusticiable, a primary concern for the court is to retain its proper role within the constitutional framework of our democratic form of government.  In considering its appropriate role, the court must determine whether the question is purely political in nature and should, therefore, be determined in another forum, or whether it has a sufficient legal component to warrant the intervention of the judicial branch”[13].   The legal component involves a question of law not a question that is purely political or be about hockey, weddings or theology.  When Charter issues are involved an “important factor to consider when determining whether an issue is justiciable is the responsibility vested in the courts by the Constitution to review legislation and state action for Charter compliance when they are challenged by citizens. When policies developed by the legislature infringe rights that are protected by the Charter, the courts cannot shy away from considering them”: see Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at para. 89 (“Chaoulli”)”[14].  So, while the courts ought not shy away from issues involving state action and infringements of the Charter; a balancing act must be performed by the court as to what makes a legal issue a legitimate concern of the court.    In Chaoulli, some questions put to the court were recognized as politically charged but this alone ‘ought’ not dissuade the court for reviewing it. 

The government of Ontario in Mathur, initially brought a successful motion to strike in the Ontario Superior Court.  The respondents were arguing that the applicants in Mathur et al had no reasonable possibility of success.  Section 21 of the civil procedures act Ontario states that:

“To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.  R.R.O. 1990, Reg. 194, r. 21.01 (1).”[15] 

According to the Justice Vermette of the Ontario Superior Court of justice speaking to the governments motion found that “the case really targeted the enormously complex issue of the province’s overall climate change plans, a policy issue that Ontario maintained was inap­propriate for judicial involvement and beyond the court’s capacity to re-solve. ”[16] The justices took the approach that the overall issue was not able to be determined by the court and by extension its inability to determine if the reduction in the CO2 target by the Ontario government infringed on the applicants rights.  According to Stepan Wood in his paper entitled: Mathur v. Ontario: Grounds for Optimism about the Recognition of a Constitutional Right to a Stable Climate System in Canada? ‘Any applicant must consider whether they are making a case against specific legislation as opposed to a broad interpretation of government policy.’[17]  He expands on this idea of justiciability as also involving the courts constitutional obligation to become involved in matters that concern infringements of the Charter.  Essentially, he argues that if there is an air of legitimacy about the matter before the court, then they should answer it[18].  According to Gerard J Kennedy* and Lorne Sossin in their paper Justiciability access to Justice and the Development of constitutional law in Canada, when “a case raises a question that a court is institutionally incapable of answering, or that is not susceptible to the judicial process, litigation is foreclosed by the courts as part of their gatekeeping function. Suggesting that a court must act in its functionary role”[19]  ‘Too broad’ a policy issue as stated by the Ontario Superior Court in Mathur will not suffice for legitimacy.  But, as the Court of Appeal found, this case was specific in that it involved legislation which made it better suited within the courts parameters to answer it.  

The Court of Appeal did not find everything justiciable.  They identified where concerns of the court were too political in nature.  Agreeing with Justice Vermette the Ontario Court of Appeal held that “Ontario’s fair share of GHG emission re­ductions was not justiciable because it lacked objective, science-based standards and the court lacked the institutional capacity and legitimacy to resolve it”[20].  Clearly this line of thinking compliments Noels Lyons paper, that the legality issue pertained to specific legislation and with this established it is then within the courts power or a legitimate concern for the court to determine whether Charter rights were violated.  Therefore, legality and legitimacy are intertwined.  But is this alone helpful in our understanding of what becomes ‘too political’ in every case?  It seems inevitably that the court in Mathur, will be forced to consider the ramifications of government action in response to the threat of climate change. 

In contrast to Mathur, the case of Tanudjaja v. Attorney-General. (Canada) and Ontario involved another social justice issue, that of homelessness.  Both cases Mathur and Tanudjaja were similar in that the applicants each invoked sections 7 and 15 Charter challenges.  The courts in Tanudjaja dismissed the case finding it was nonjusticiable.  Distinguishing Tanudjaja, the Court of Appeal in Mathur, “found that an application that alleged that Canada’s and Ontario’s actions and inaction had resulted in homelessness and inadequate housing was not justiciable as there was no sufficient legal component to engage the decision-making capacity of the courts. The applicants did not challenge any specific legislation or state action in that case. Their position was that the social conditions created by the overall approach of the federal and provincial governments violated their rights to adequate housing”[21].  This approach by the court was that the alleged actions of government were not particular to a specific piece of enacted legislation.  The court found that regarding how the government deals with the homeless issue in its entirety to be a far stretch for the court to become involved.  Similar cases were referenced by the court in support of their position that included La Rose[22] and Friends of the Earth[23], where the court again saw the issues as ‘too broad’ for the court to answer.   As Noel Lyon observed, legality involves what the court is asked to do[24].  But then what is the definition of what is either ‘too broad’ or ‘too political’, are they the similar?  It seems that if a culmination of legislation does not align itself with Charter values, then it ‘ought’ to open itself up to constitutional scrutiny.

Exploring the argument, common sense would dictate that broad governmental policies are inescapably government actions that may negatively impact citizens rights under the Charter.  Section 32 of the Charter says “all matters”[25], not a choice between either an action or actions of the government.  According to Noel Lyon, the conception of “legality assumes the legitimacy of the acts of legislatures because they are sovereign bodies.  Constitutionality considers legitimacy to be open to question because a supremacy clause attributes sovereignty to the people, whose constitution it is. The Constitution sets out standards of legitimacy for government, and the Charter's standards could be described as the essential conditions on which a free and democratic people agree to submit to the authority of government.  When governments fail to observe those standards, they lose their legitimacy or they act unconstitutionally.”[26] The problem, as identified by Sossin, “even among those who had paid specific attention to the topic in the past, there had been no consensus as to the precise boundaries of the principles of justiciability”[27].  Both courts in Mathur seem to make it clear that if it is the entire scheme of the governments action seemingly infringes on Charter rights, then the court will fail to act.  This is the case that is identified by Nathalie Chalifour in their paper entitled, Environmental Discrimination 2015.  He makes the argument that when deciding which specific legislative action by government that attributed to aboriginal people lack of available pure water essential to life, there is “no specific law or legal framework that has caused the alleged differential treatment (central to section 15 of the Charter)”[28]  The problem for the court, as it was in Tanudjaja, is for a Charter challenge to succeed the court wants to be able to pinpoint specific impugned legislation.  Chalifour argues that the Charter extends to a full range of both government action and inaction involving the governments cumulative actions.  Such an argument cannot be explored in their entirety for concerns of this short paper but to note there are arguments by legal scholars that purport this conclusion. 

Historically, the Canadian courts have found in the past that it has been asked to adjudicate issues being too broad for them to address.  In the case of La Rose v Canada 2023, involving climate change, that the court found that the questions posed by the applicants as being too broad.  According to the court that “ even if these claims were justiciable, they failed to disclose a sufficiently discrete instance of state action so as to permit any Charter analysis (La Rose Reasons at paras. 59, 61, 79)”[29] The Court seems to be recognizing that if it were to recognize a broad question as justiciable, forming the basis for legal foundation it would fail for legitimacy under constitutional analysis (seemingly for some other reason).  In the Succession Reference case 1998 the Supreme Court found that ‘legality and legitimacy are linked’ yet found it necessary to provide an answer on how governments may proceed if Quebec chose to succeed.[30]  In this case there was no legal foundation for how a province may leave Canada, yet the Court found itself obliged to give an answer because of the importance to the public[31].  Additional critiques would be worth embarking on where the Court seemingly stepped to far out of its realm.  In 1981 the Constitutional Reference case the Supreme Court of Canada was asked to rule on a question of convention[32].  Conventions are not by nature legal, and yet the court once again chose to answer.  This paper is too short to give justice to all the issues surrounding justiciability in relation to what may be ‘too broad’ or ‘too political’.  Further inquires are necessary to into arguments posed by Chalifour and by the Justices in cases such as La Rose, the Secession Reference and others.  These deeper explorations would provide more insights into the court’s methods and understandings of how individuals may better approach the courts with their concerns towards government action.    

Conclusion:

In conclusion, there is need of more inquiry into the conception of justiciability to identify when courts find matters ‘too political’ to answer.   Problematically, is that the courts are not clear on what makes an issue justiciable.   Secondly, it seems with the restrictions on asking the courts to consider governmental broad policy actions and with the courts reluctance to recognize the Charter imposing a positive obligation on the government makes it difficult to use the courts as a mechanism for redress when appealing to the Charter.   What has been made clear in Mathur is that applicants or litigants are better served when they identify specific impugned legislation to ensure the strength in their Charter challenge will be addressed.   It is clear from Mathur and Tanudjaja that justiciability involves a connection between concepts of legality and legitimacy but neither case differentiated between what is ‘too political’ or ‘too broad’.   We are still waiting to see how Mathur will eventually be decided, but it will be interesting to see how the courts will ultimately rule, while still avoiding playing politics.  Confusingly the courts continue to express their reluctance to address issues that are ‘too political’ while having done so in the past.   Further, the question before the court in Mathur seems to be demanding a political answer where the court is to decide the proper role of the government in relation to climate change and still address CO2 reduction targets.  Justiciability may be a good tool, but it does not seem to draw a clear linear dividing line to understand why judges refuse to answer what they consider as broad government policy questions or what issues they consider ‘too political’ for the courts to address.  The concept of justiciability is necessary for the understanding of procedural constitutional law and if it was clear then why did the Ontario Superior Court in Mathur get it wrong the first time?

[1]  Mathur v Ontario 2024 para 1

[2] Mathur v Ontario 2018 para 2

[3] Ibid., Para 4-7

[4] Urgenda Foundation v Netherlands 2018 Para 3.5

[5]  Mathur v Ontario 2024 para 97

[6] Charter, s 32

[7] See Constitutional reference case 1981 and the Quebec succession case 1998 where the court has been accused of stepping over the line or being judicial active

[8] David Mullan Book Review: Boundaries of Judicial Review: The Law of Justiciability in Canada, by Lorne Sossin P 223

[9] Highwood v Wall 2018 case SCC para 5

[10] Ibid., para 23 Jehovah witness theology. The court outlined that they would only comment on issues that are justiciable.

[11] Lyon, Noel An essay on constitutional litigation, P 115

[12] Section 32 of the Charter

[13] Mathur v Ontario 2024 para 99

[14] Ibid., para 100

[15] Courts of Civil Procedures Act Ontario  https://www.ontario.ca/laws/regulation/900194#BK181)

[16] Wood, Stepan Mathur v. Ontario: Grounds for Optimism about the Recognition of a Constitutional Right to a Stable Climate System in Canada?, 2024 CanLIIDocs 964 P 22

https://www.canlii.org/en/commentary/doc/2024CanLIIDocs964#!fragment/zoupio-_Tocpdf_bk_0_8/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMADMwAcASgA0ybKUIQAiokK4AntADkGyREJhcCJSvVadegyADKeUgCF1AJQCiAGScA1AIIA5AMJPJUjA+aFJ2cXEgA

[17] Ibid., P 23

[18] Ibid p 20-30

[19] Gerard J Kennedy* and Lorne Sossin JUSTICIABILITY, ACCESS TO JUSTICE AND THE DEVELOPMENT OF CONSTITUTIONAL LAW IN CANADA P 707

(https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3670&context=scholarly_works

[20] Ibid., p 24

[21] Mathur v Ontario 2024 para 102

[22] La Rose v Canada 2023 Federal court. Where the court struck the action on motion for no reasonable possibility of success.

[23] Friends of the Earth v the Governor in council and others 2008. The first ever climate change case in Canada heard by the Federal court.

[24] Lyon, Noel An essay on constitutional litigation, P 117

[25] Charter, s 32

[26] Noel Lyon in his essay entitled An Essay of Constitutional Interpretation P 115

[27] Gerard J Kennedy* and Lorne Sossin JUSTICIABILITY, ACCESS TO JUSTICE AND THE DEVELOPMENT OF CONSTITUTIONAL LAW IN CANADA P 223

[28] Chalifour, Nathalie Environmental Discrimination, supra note 18 at 188 https://www.canlii.org/en/commentary/doc/2015CanLIIDocs5325#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA

[29] La Rose v Ontario 2023 para 8

[30] Succession of Quebec reference 1998 SCC para 33

[31] Ibid. para 12-45

[32] Constitutional Reference case 1981