Several Ontario youths (the “Plaintiffs” or “Applicants”) have brought an application suing the Ontario Government (ON) for cancelling the Climate Change Act, as well as the province’s newly-enacted target (“Target” and “Plan”), the acts of which violated Ontario youth’s current and future Charter rights.
ON brought a motion to strike the Plaintiff’s application under Rule 21 of the Rules of Civil Procedure on the ground that it had no reasonable prospect of success.
The Superior Court of Ontario (the “Court”) concluded that it was not plain and obvious that the Application disclosed no reasonable cause of action or had no reasonable prospect of success, and it should therefore proceed to a trial for a full consideration of the application.
ON’s motion to strike the Plaintiff’s application should be dismissed, and the action should proceed to a full trial. Specifically:
1. Should the application be struck? (ie. is it plain and obvious that the pleadings disclose no reasonable cause of action?). To answer this, the courts asked:
A) Are the Target and Plan reviewable by the courts? Yes
B) Are the claims in the application capable of being proven? Yes
C) Is the matter justiciable? Yes (C.2) More specifically, do the Charter claims in the application have a reasonable prospect of success? Yes
D) Does the application depend on the province having an obligation to act? Possible – the matter should proceed to trial to be fully considered
2. If the application has a reasonable prospect of success, the court must then address other outstanding issues:
E) Do the Applicants have standing on behalf of future generations? Yes, on a preliminary basis
F) What remedies are potentially available to the Applicants? This should be determined by the trial judge
G) Does this court have jurisdiction to hear the application? Yes
- SOPHIA MATHUR, a minor by her litigation guardian Catherine Orlando
KEARY-MATZNER, a minor by her litigation guardian Anne Keary
- SHELBY GAGNON, ALEXANDRA NEUFELDT
- MADISON DYCK
- LINDSAY GRAY
The court accepted several important facts:
Cited Ontario’s greenhouse gas pollution pricing Act (GGPPA) court challenge case (“Carbon Pricing Reference”): there is no dispute that global climate change is taking place and that human activities are the primary cause (4)
Global average surface temperature has increased by ~1.0o C above pre-industrial levels and it is estimated by 2040 that the global average surface temperature will reach 1.5c
Climate change is causing or exacerbating impacts: increased frequency and severity of extreme weather events (including droughts, floods, wildfires, and heat waves); degradation of soil and water resources; thawing of permafrost; rising sea levels; ocean acidification; decreased agricultural productivity and famine; species loss and extinction; and expansion of the ranges of life-threatening vector-borne diseases, such as Lyme disease and West Nile virus (7)
A main method to mitigate climate change is pricing GHG emissions (9)
The United Nations Intergovernmental Panel on Climate Change’s (UN IPCC) position is that global net anthropogenic CO2 emissions must be reduced by approximately 45% below 2010 levels by 2030 and must reach “net zero” by 2050 to limit the global average surface warming to 1.5o C and avoid more impacts of climate change
Discussed measures to mitigate climate change: ratifying the United Nations Framework Convention on Climate Change (UNFCCC) in 1992 and coming into force 1994; ratifying the Kyoto Protocol December 2002 (Canada failing to fulfill its commitment and withdrawing in December 2012); adopting the Paris Agreement in December 2015 and committing to reducing GHG emissions by 30% below 2005 levels by 2030; provinces including Ontario adopted the Pan-Canadian Framework on Clean Growth and Climate Change in December 2016 with Ontario intending to join a cap and trade system.
That same year, Ontario enacted the Climate Change Mitigation and Low-Carbon Economy Act establishing a cap and trade program, establishing three targets (a reduction of 15% by end of 2020, 37% by 2030, and 80% by 2050 of 1990 levels)
In 2018, the Federal Government introduced the GGPPA, which the Ontario government eventually challenged as unconstitutional, intending to continue its own approach
In July 2018, Ontario revoked the cap and trade allowances through the Cap and Trade Cancellation Act, 2018, and repealed the Climate Change Act, giving the provincial government the discretion to revise targets “from time to time” (26)
Following, in November 2018, the Ontario government published a plan titled “Preserving and Protecting our Environment for Future generations: A Made-in-Ontario Environment Plan” which had a target of reducing GHG emissions by 30% below 2005 levels by 2030, mirroring the Paris Agreement (29)
The Applicants seek the specific relief:
A declaration, under s.52(1) of the Constitution Act, 1982, that the Target violates the rights of Ontario youth and future generations under ss.7 and 15 of the Charter in a manner that cannot be saved under s. 1, and is therefore of no force and effect;
A declaration, under s.52(1) of the Constitution Act, 1982, that the Target violates the unwritten constitutional principle that governments are prohibited from engaging in conduct that will, or reasonably could be expected to, result in the future harm, suffering or death of a significant number of its own citizens;
A declaration that s.7 of the Charter includes the right to a stable climate system, capable of providing youth and future generations with a sustainable future;
A declaration, under s.52(1) of the Constitution Act, 1982, that ss.3(1) and/or 16 of the Cancellation Act, which repealed the Climate Change Act and allowed for the imposition of more lenient targets without mandating that they be set with regard to the Paris Agreement temperature standard or any kind of science-based process, violate ss.7 and 15 of the Charter in a manner that cannot be saved under s.1, and are of no force and effect;
In the alternative, the same declaratory relief sought in the paragraphs above pursuant to s.24(1) of the Charter and/or this Court’s inherent jurisdiction;
An order that Ontario forthwith set a science-based GHG reduction target under s.3(1) of the Cancellation Act that is consistent with Ontario’s share of the minimum level of GHG reductions necessary to limit global warming to below 1.5 degrees Celsius above pre-industrial temperatures or, in the alternative, well below 2 degrees Celsius (i.e., the upper range of the Paris Agreement temperature standard); and
An order directing Ontario to revise its climate change plan under s.4(1) of the Cancellation Act once it has set a science-based GHG reduction target.
ON argues that the application will fail for four main reason (41):
The Application is not justiciable (ie. the Target and Plan cannot be reviewed by the courts)
The application is based on unprovable speculations about the future climate consequences of the Target
The province does not have positive constitution obligations to prevent harms associated with climate change
The applicants do not have standing to seek remedies for “future generations”
The Applicant’s response (42):
The Application is justiciable
The claims in the Application can be scientifically proven
The Application does not depend on positive obligations
The Applicants have standing on behalf of future generations
A) Issue 1: Is the Target and Plan reviewable by the courts? Yes.
- Ontario: If the Target and Plan are not “law”, then the court should not be making legal determinations about them, and further, the Charter does not apply to the Target and Plan. The Target and Plan are “expressions of the provincial government’s intentions and aspirations” and not a legal instrument like a statute or regulation (48)
- Courts cannot declare that a goal is unlawful simply because it is not ambitious enough, and then find find that that the government is constitutionally required to reduce an issue or eradicate it altogether (49)
- The Target does not have any legal effect on anyone and does not change laws — it has no legal content (50)
- The Plan is not like a statute with a “fixed and definite meaning” and is unlike a regulation enacted by the Lieutenant Governor in Council; the Plan is more like a press release, a speech, or budget presentation (51)
- Applicants: The Plan is “law” as it was published pursuant to a statutory mandate (ie. the Cancellation Act) which required the government to establish targets and prepare a climate change plan (see ss. 3(1) and 4(1)), and the government has relied heavily on the Plan to justify its conduct (such as arguing that the province didn’t need a federal carbon tax at the Carbon Pricing Reference case) (52)
- Cited Greater Vancouverwhere the Supreme Court of Canada (SCC) considered whether transit policies restricting advertising on their buses was “law” such that it could satisfy s. 1 of the Charter — likewise, this Plan is “law” because it is not simply an internal policy, it is a policy of general application made pursuant to rule-making authority (57)
- Court: The question of whether the Target and Plan are “law” need not be answered at this stage, but the question itself is misguided. The fundamental question, rather, is whether the Target and Plan is governmental action that is reviewable by the courts — and yes, it is, for three reasons:
- The Plan and Target is legislatively mandated by the Ontario legislature, sub-delegated to the Ministry of Environment, and approved by the Lieutenant Governor in Council (ie. a Cabinet decision, which the SCC has already found to be reviewable by the courts (see: Operation Dismantle) (63)
- The Plan and Target resemble “quasi-legislation” or “soft law” — while not directly controlling emissions, they reflect the province’s intentions that presumably guide policy-making decisions (64). Recent cases have shown that the court is prepared to give quasi-legislation increasing significance and are judicially reviewable (67)
- The Plan and Target have the “force of law” and is therefore reviewable (68)
B) Issue 2: Are the claims in the application capable of being proven? Yes.
The courts consider the facts being pleaded at this stage are true unless “manifestly incapable of being proven”, such as “bald conclusory statements of fact, unsupported by material facts”, perhaps something “too uncertain, speculative, and hypothetical to sustain a cause of action” (72, 75)
- Ontario: the facts cannot be taken as true and are founded on speculations about the link between the Target and the harms suffered by future generations — applicants must prove that Ontario’s target will cause/contribute to future harms claimed, which is “manifestly incapable of being proven” (86)
- GHG reduction is global and involves coordination with multiple other jurisdictions — this cannot be established through evidence as it lacks predictability (88)
- Climate change itself is not speculative but the applicants are arguing a “chain of speculative assumptions”, such as:
- The actual GHG emissions in 2030 will not be different than the current Target
- The Plan/Target will not change before 2030
- Climate policies by the federal government in Ontario will have no effect
- The suggested catastrophic climate effects for future generations can be avoided/mitigated by any target adopted today, or
- The future impacts of climate change on health and well-being can be predicted with reasonable accuracy/evidence
- Applicants: the facts are capable of scientific proof and therefore not assumptions or speculations — Ontario cannot escape judicial review by the fact that the application is based on theories about future events; by Ontario’s logic, the Target could never face any legal scrutiny until it’s too late (92). The remedies being asked for can be determined with experts and scientific standards (93). In other cases, such as Urgenda, the courts were able to determine claims using scientific proof (94).
- Court: at this stage of the proceedings, the applicant’s claim should be deemed to be provable and agrees with the applicant’s point that, “whether or not we succeed is going to be a matter for a trier of fact” (ie. a judge or jury) (95)
- It is not plain and obvious that scientific evidence cannot be gathered to establish the harm of GHG emissions or levels of GHG emissions
- In the Carbon Pricing Reference, the Ontario Court of Appeal (ONCA) found that the findings and standards could be projected/predicted with scientific accuracy, such as: the average surface temperatures in Canada and around the globe currently and in the future; the impacts climate change has on Canada and the world; and the amount of GHG emissions that must be reduced (97)
- InLa Rose, the federal court also disagreed with Canada’s submission that the plaintiff’s claim was only speculative (at para 75):
“I cannot find that there is no reasonable prospect of success on the basis of the speculation arguments alone. Unlike the speculation inherent in the assumption in Operation Dismantle – that the reaction of foreign powers to cruise missile testing will increase the risk of nuclear war, the Plaintiffs in this case are alleging that Canada’s role in climate change has led to the alleged harms. Canada has a role in GHG emissions that is more than speculative in this current case.” (100)
- The United Nations has also established an international body (the IPCC) tasked with proving scientific information on climate change, which suggests that the applicant’s claims are capable of scientific proof (101)
C.1) Issue 3: Is this matter justiciable? Yes
Justiciability is the scope of intervention the courts can have in social, political, and economic life — it is subject matter that is suitable for the courts to deliberate on based on (1) the capacities and legitimacy of the judicial process, (2) constitutional separation of powers, and (3) nature of the dispute before the court (103))
- Ontario: courts should not involve itself with reviewing actions of the Executive/legislative branches where the subject matter does not warrant or where the court lacks the capacity to resolve it, such as in this case (113). There are cases where the court did not intervene in reviewing the reasonableness of the government’s response to their Kyoto commitments or the government’s action/inaction on homelessness (see: Friends of the Earth and Tanudjaja)
- Applicants: the application is different from Tanudjaja because here, they are targeting specific measures — a “network” of government programs, which Tanudjaja still left open for litigation (119). The questions raised all relate to the pressing threat to constitutional rights by Ontario’s failure to act on climate change (120). Further, non-justiciable cases are rare, especially when Charter rights are involved (121). The federal court has previously stated that “Charter cases are justiciable regardless of the nature of the government action” (122). With the aid of experts and scientific research, the court will have guidance on hearing the application’s merits (123).
- Court: Agrees with the Applicants. The court has stated where a Charter challenge is involved, “it is not only appropriate that we answer the question; it is our obligation under the Charter to do so” (126). The subject application is different from Tanudjaja or La Rose — in Tanudjaja, the applicants did not challenge a specific state action or law. Similarly, in La Rose, the court found that the plaintiffs were essentially challenging Canada’s “overall approach to climate policy” (132). Here, the applicants are challenging policy decisions that were translated into law and state action (132).
C.2) Do the Charter claims have a reasonable prospect of success? Yes.
(C.1-1) Section 7 claim: Life, Liberty, and Security
- Section 7 can only be infringed if it is in accordance with the principles of fundamental justice — methods of the state that are “fundamentally flawed… arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal” are not in accordance with the principles of fundamental justice (160) [emphasis added] (see paragraphs 111, 112, and 120 in Bedford for definitions)
- This is the stage where the court considers competing moral claims and broad societal benefits (161)
- An increase in the frequency and intensity of acute extreme heat events, resulting in an increase in fatalities, serious illness, and severe harm to human health;
- An increase in overall temperatures and heat waves, resulting in an increase in fatalities, serious illness, and severe harm to human health;
- An increase in the spread of infectious diseases such as Lyme disease and West Nile Virus, resulting in an increase in fatalities, serious illness, and severe harm to human health;
- An increase in the frequency and intensity of fire activity (including forest wildfires), resulting in an increase in fatalities, serious illness, displacement, and severe harm to human health;
- An increase in the frequency and intensity of flooding and other extreme weather events, resulting in an increase in fatalities, serious illness, displacement, and severe harm to human health;
- An increase in the spread of harmful algal blooms in water that Ontarians use for drinking and recreational purposes, with a resulting increase in serious illness, loss of livelihood, and severe harm to human health;
- An increase in exposure to contaminants such as mercury through food webs, with a resulting increase in severe harm to human health and negative impact on food security and sovereignty of certain Ontario communities;
- An increase in harms to Indigenous peoples, including increased impacts on health, access to essential supplies, ability to carry out traditional activities, loss of livelihood, and displacement; and
- An increase in serious psychological harms and mental distress resulting from the impacts of climate change, including but not limited to, the impacts set out in the paragraphs above.
- The Target is inadequate to hold global average temperature increases to 1.5 or 2 degrees Celsius above pre-industrial levels and thereby avoid catastrophic climate change impacts. The Target will ensure a higher level of GHG emissions that will cause or contribute to death, serious illness, and severe harm to the health of Ontario’s youth and future generations, interfering with their right to life and security of the person.
- The Target violates the right to liberty of Ontario’s youth and future generations because the impacts of climate change interfere with their ability to choose where to live, their right to personal autonomy, and their right to make other decisions of fundamental importance.
- The Target will materially increase the risk that Ontario’s youth and future generations will suffer from the many harmful impacts of climate change.
- The Target is grossly disproportionate to Ontario’s stated objective of taking proactive action to address climate change, given the severity and extent of the harm caused by a high level of GHG emissions.
- The Target is arbitrary. Ontario’s objective in adopting the Target was to take proactive action to address climate change. The Target bears no relation to and is inconsistent with that objective.
- To the extent Ontario may rely on economic justifications, the justifications ring hollow, and Ontario’s inaction on climate change now will prove to be increasingly costly to Ontarians in the future.
- Section 7 appears to be engaged on all three fronts – life, liberty, and security.
- Right to life: the SCC has already acknowledged that “certain forms and degrees of environmental pollution can directly or indirectly… seriously harm or endanger human life and human health” (152). Other cases have found that the right to life is engaged where a law/state action imposes death or increased death on a person (see: Carter) (151). This suggests that the right to life is also engaged in this application, as the applicants argue that Ontario repealing the Climate Change Actand setting an inadequate target increases the risk of death in Ontario’s youth and future generations.
- Right to liberty: this right has more to do with physical freedom and the protection to make “fundamental personal choices free from state interference” (154). The SCC has found this right was engaged “where state compulsions or prohibitions affect important and fundamental life choices” (154). The applicants argue climate change will interfere with their ability to choose where to live (156). Godboutfound that the right to choose where to establish one’s home falls within the scope of interests guaranteed by s. 7 since it is so fundamental or inherently personal (ie. it is a choice that goes to the core of what it means to “enjoy individual dignity and independence” (155)
- Right to security of the person: grounded in “personal autonomy” and protection of “physical and psychological integrity” (157). The SCC found that this interest was engaged when the state interfered with an “individual’s physical or psychological integrity, including any state action that causes physical or psychological suffering” (157). The state action must have a “serious and profound effect” on a person’s psychological integrity. This effect must be assessed objectively, assuming the impacted person to be of “reasonable sensibility” — the effect must be “greater than ordinary stress or anxiety” (157). People also have a right to be free from “prospective harm” — “freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself” (158). The Applicants argue that s. 7 is engaged because the inadequate Target could further contribute to climate change, which could cause an increase in serious psychological harm and mental distress (159)
- On the flexibility of s. 7 and the evidentiary burden, the SCC has cautioned against “freezing” the development of s. 7 and to instead “safeguard” the flexibility in its interpretation and evolution (164)
- The Federal Court of Appeal has acknowledged this and the fact that it might “some day, evolve to encompass positive obligations — possibly in the domain of… climate rights” (165)
- Given the above, it is not apparent at this stage that the Application cannot succeed, although they will have a high evidentiary burden later (166)
- With issues of causation, the applicant must “show that they have some chance of proving that the action… caused a violation or [a] threat of violation of their rights…” (167) of “sufficient causal connection” (you do not need to show that the impugned action is the only or dominant cause”) (169)
- This application is capable of scientific proof, using both scientific and social science findings (171)
- Section 7 appears to be engaged on all three fronts – life, liberty, and security.
(C.1-2) Section 15: Equality
When s. 15 Charter violations are alleged: the SCC has used a two-step analysis —
- Stage 1: Does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous ground?
- Stage 2: If so, does the law fail to respond to the actual capacities and needs of the members of the group and instead impose burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage? (176)
- Other considerations for the analysis:
- Fact-driven and highly contextual (177)
- Inherently comparative (claimants have to establish the distinction based on prohibited grounds) (177)
- Ontario: the essence of the discrimination claim is that future Ontarios will suffer more than the present or past; even if that could be proven, it is a “temporal distinction”, not one based on enumerated/anologous grounds in the Charter (173)
- Applicants: the Target violates s. 15 of the Charter because Ontario’s youth and future generations…
- are a uniquely vulnerable population by virtue of their age and, for some, their inability to influence political decisions at the ballot box; • will be disproportionately impacted by the devastating impacts of climate change, which will significantly increase in severity and intensity as the years progress; • are among those who will suffer the most from the climate change impacts, including, but not limited to, extreme heat events, warming temperatures and heat waves, infectious diseases, fires, flooding, algal blooms, toxic contamination, and mental health challenges; and • will have their pre-existing vulnerability and disadvantage heightened as a result of the impacts stated above. (172)
- The discrimination is not just “temporal” — the violated are particularly vulnerable because of the “cumulative and compounding impacts of climate change” (174)
- The vulnerability of the Applicants are because of their age — some cannot vote, and they are disproportionately affected by climate change than most other generations; this impact will exacerbate pre-existing vulnerabilities and disabilities (178)
a) Stage 1: Does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous ground? Yes, age (179)
b) Stage 2: If so, does the law fail to respond to the actual capacities and needs of the members of the group?
- The Applicants allege indirect discrimination: the particular law/rule, while neutral on its face has disproportionate adverse effects on a group because of their age (180) — this is a more difficult type of discrimination to establish (181)
- The courts have focused more on “substantive equity”, rather than “substantive equality” (182) — it is more about “disadvantage” rather than simply “distinction” (185)
- At this stage, it is not clear that the Applicant’s s. 15 claim has no prospect of success for the following reasons: (186)
- Where “adverse effect” Charter claims have succeeded, the claims were based on “self-evident societal patterns amenable to judicial notice” (ex. The disadvantage a deaf person faces when trying to seek medical services without the aid of sign language interpretation) (187) — likewise, the disadvantage that younger generations may face due to climate change may be self-evident, especially if the Applicants can show evidence of historical or sociological disadvantage that the Applicants have experienced due to their age (187)
- It is not apparent that the Applicants cannot prove that Ontario’s conduct increases the gap between the disadvantaged group and the rest of society (188).
D) Does the Application depend on the province having positive obligations to act? Possible - this should proceed to trial to fully determine
Negative obligations are the idea that the government must refrain from interfering with protected activities that guarantee fundamental freedoms (191)
- the SCC has previously acknowledged that positive obligations may be required where the “absence of the government intervention may in effect substantially impede the enjoyment of fundamental freedoms” (191)
- Ontario: even if the claim was justiciable and possible to prove, the application must fail because it is based on the legal theory that Ontario is constitutionally obligated to take positive steps, which the province has no obligation to do (190)
- Applicants: this is not a case of positive obligations; a “typical” positive obligation case seeks relief that requires the government to be responsible for problems they did not create — in this case, however, the Ontario government has essentially authorized and incentivized the creation of GHGs by lowering the Target (194) — if Ontario decides to act, then they must do so in a way that complies with the Charter (226)
- Alternatively, even if this involved positive obligations, it falls under the special circumstances contemplated by Gosselin (195)
- Court: it is not clear that the Ontario government has no constitutional obligation to take positive steps to address climate change (225); the applications claims should be evaluated based on a full evidentiary record, not at this stage (236)
- (The court summarizes and provides further thoughts on the case law provided by Ontario supporting their position (see paragraphs 198-223))
- The cases provided by Ontario were all at the stage where the merits of the claim were adjudicated; a motion to strike is not the appropriate forum to make judicial findings on complex issues of positive obligations (227)
- The court in La Rose also found that claims based on positive rights were not sufficient to find that it discloses no reasonable cause of action (235)
E) Do the Applicants have standing on behalf of future generations? On a preliminary basis
On a preliminary motion to strike for lack of standing, the court will terminate applications only in “very clear cases” (240). There is a three-part test for standings in public law cases (241):
- whether the case raises a serious justiciable issue (“serious” means the question raised must be a “substantial constitutional issue, “important”, or “far from frivolous” based on a preliminary examination of the merits (242))
- whether the party bringing the action has a real stake or a genuine interest in its outcome, and
- whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court (consider the plaintiff’s capacity/resources to bring the claim; whether the case goes beyond just affecting the plaintiffs; whether there are realistic alternative uses of judicial resources; or the potential impact of the proceedings on others who are affected) (243)
- Both parties agree that the Applicants have public interest standing generally — but they disagree on whether they have standing on behalf of future generations (244)
- Ontario: “Future generations” is too broad; it would be impossible to determine some of the considerations of the test for future generations (245-6)
- Applicants: The issue is novel and should be determined on a full record; future generations would not be able to bring a similar claim against a future Ontario government as the failure to reduce GHG emissions would already be “locked in” before they were even born (247)
- Court: it is not conclusive that the Applicants should not be granted standing on behalf of future generations (249) — on a preliminary examination, the Applicants have standing because
- The case raises a serious justiciable issue; the Applicants have shown they have a real stake in the outcome; and
- The claim is a reasonable and effective means to bring an application to court (they are represented by Ecojustice, who has the ability and expertise to present the issues; the claim transcends the interests of Ontario residents and future generations; the Applicants, due to their young ages, bring a distinctive perspective; and granting the application does not create a conflict between private/public interests) (251)
F) What remedies are available to the Applicants?
- Ontario: Requested orders requiring Ontario to set out a “science-based GHG reduction target” are beyond the court’s institutional capacity
- Court: See Khadr, which suggests that the courts can avoid having to answer questions of public policy by limiting the remedies to declarations and leaving it to the government to determine the best means forward (257) — the final decision as to relief rests with the application judge, but the application should not be struck simply because the relief sought might take the court beyond its institutional limits (259)
G) Does the Court have jurisdiction to hear the application? Yes.
- Ontario: the application should be judicially reviewed, as it challenges the lawfulness of the government’s actions
- Applicants: this claim is about a Charter challenge and not a review of the province’s actions (260)
- Court: the application is a Charter challenge; the Applicants are seeking relief under s. 52(1) of the Constitution, and while applications for declarations under this can be heard in Divisional Court, the Superior Court can still maintain jurisdiction (262); the Divisional Court is not a court of original/general jurisdiction with “inherent jurisdiction”, unlike the Superior Court – it is therefore the appropriate venue (264)
- Justice Carole J. Brown
- Nader R. Hasan, Justin Safayeni, Spencer Bass, Fraser Andrew Thomson, and
Danielle Gallant for the Applicants
- S. Zachary Green and Padraic Ryan for the Respondent