After a slow start, the past year has seen several climate-related cases make their way through Canadian courts, including a seminal constitutional case heard by the Supreme Court of Canada (SCC), which revisited the scope of federal jurisdiction over environmental matters. In March 2021, in Reference re Greenhouse Pollution Pricing Act, the SCC confirmed the constitutionality of the Canadian federal Greenhouse Gas Pollution Pricing Act highlighting the existential threat posed by climate change. This article will provide an overview of the other recent Canadian climate change litigation cases.
The Canadian cases were filed against the Government of Canada and in large part alleging violations of Charter rights, seemingly inspired by the international trend of rights-based climate litigation. The Canadian Charter of Rights and Freedoms (Charter) does not include any explicit environmental rights. However, sections 7 and 15 of the Charter have been raised in all the climate change suits against Canadian governments. Section 7 of the Charter provides for the right to life, liberty, and security of the person and section 15 of the Charter guarantees that every individual is equal under the law and receives equal protection without discrimination. Certain cases have also raised novel arguments that have not been tested by Canadian courts.
The first rights-based climate litigation suit in Canada was filed in Environnement Jeunesse (ENJEU) v. Canada (AG) in the form of a climate change class action against the Canadian government on behalf of Québec citizens aged 35 and under. The plaintiffs claimed that by setting a greenhouse gas (GHG) reduction target insufficient to avoid negative climate change impacts and by lacking an adequate plan to reach its GHG emission targets, Canada violated the section 7 and 15 Charter rights of the class members. The main remedy sought by ENJEU was a declaration that Canada’s failure to act violated the constitutional rights of the group of plaintiffs. The federal government submitted that the issues were not justiciable because they were inherently political and outside the competence of the court and because the allegation was government inaction. In 2019, at the class certification stage, which on the merits only involved determining whether or not the claim is frivolous or obviously destined to fail, the Quebec Superior Court concluded that the alleged violation of Charter protected rights was not, at the certification stage, nonjusticiable. The court however dismissed the motion for authorization to institute a class action on the basis that the definition of a class of residents of 35 years of age or less was without factual or rational explanation.
In La Rose et al. v. Her Majesty the Queen, 15 children and youth plaintiffs across Canada brought suit against the Government of Canada claiming that Canada’s actions cause, contribute to and allow GHG emissions that are incompatible with a stable climate thus violating their rights under sections 7 and 15 of the Charter and breaching the Crown’s obligations under the public trust doctrine to protect public resources such as navigable waters, the air and the permafrost, which has not been recognized under Canadian law. The Federal Court of Canada found that the Charter claims were not justiciable (though the public trust claim could be) and that the claims disclosed no reasonable cause of action. In particular, the court observed that the plaintiffs impugned a broad and diffuse range of government conduct, such that they are “seeking judicial involvement in Canada’s overall policy response to climate change” and failed to “plead definable law or state action.”
In Misdzi Yikh v. Canada, an Indigenous group claimed that they experienced significant impacts on their territories caused by warming and expected to experience negative health effects due to climate change and alleged that the Canadian government's approach to climate change had violated their constitutional and human rights, in particular sections 7 and 15 of the Charter. The plaintiffs further asserted that Canada's historical treatment of Indigenous leaders and ongoing racial discrimination exacerbate the psychological and social trauma caused by climate change. The Federal Court struck the claim on the basis that it was not justiciable and did not disclose a cause of action. In striking the claim, the court noted that “the issue of climate change, while undoubtedly important, is inherently political, not legal, and is the realm of the executive and legislative branches of government.”
In Mathur et al. v. Her Majesty the Queen in Right on Ontario (AG), seven Ontario youth between the ages of 12 and 24 initiated an action against the Government of Ontario challenging the validity and constitutionality of a weakened GHG emissions reduction target adopted by the Government of Ontario. The youth alleged that the target was insufficient to effectively combat climate change, such that it violated the rights of Ontario’s youth under sections 7 and 15 of the Charter. In November 2020, a judge of the Ontario Superior Court of Justice denied a motion brought by the attorney general of Ontario to strike the application. In a procedural victory for the applicants, the court ruled that it was not plain and obvious that the application did not disclose a reasonable cause of action nor that it had no reasonable prospect of success. The case may therefore proceed, and the applicants in the unprecedented case in Canada face an uphill battle to obtain the relief they seek.
Several of the decisions described above are currently being appealed. The climate change litigation cases that have been heard in Canada thus far show the challenges plaintiffs face in Canada in shifting climate policy from the legislative sphere to the judicial and raise many of the same questions that the U.S. Ninth Circuit and the Netherlands Supreme Court grappled with in the Juliana and Urgenda cases. To succeed on the merits, the main issues that will need to be addressed by the plaintiffs are whether: (1) international GHG reduction commitments are enforceable in national courts or are fundamentally political matters and nonjusticiable; (2) sections 7 and 15 of the Charter implicitly provide for some form of environmental protection; and (3) environmental rights can be considered positive rights (i.e., to compel the government to take action), which courts are prepared to recognize and enforce. Canadian courts have traditionally been reticent to engage with issues that they consider to be political (including with respect to meeting Canada’s international GHG commitments in Friends of the Earth v. Canada (Governor in Council)). The Charter case law has generally evolved to protect negative rights (i.e., against state interference) and whether the Charter protect positive rights is an unresolved issue in Canadian law.
