Case name:                     La Rose v. Her Majesty the Queen

Jurisdiction:                     Canada

Type of claim:                  Challenge of federal government’s insufficient climate policy

Summary of result:       Motion to strike dismissed (case allowed to proceed to trial)

Judgment final:               No, appeal in process

Court instance:

Source of claims:           

Constitutional Rights: s.7 and s.15 of the Charter of Rights and Freedoms

Common Law Rights: Breach of Government’s public trust duties

Summary of Judgement

Facts and Claims of the Parties

In October 2019, 15 Canadian youth sued the Canadian federal government, claiming that the government’s actions are incompatible with a “stable climate system”, and that as a result the Canadian Government is responsible for violating the Plaintiffs’ rights under the Charter of Rights and Freedoms and the “public trust” doctrine. The Plaintiffs sought relief through a variety of declaratory orders, including an order requiring the Government of Canada to take additional action to curb its climate-exacerbating activities.

In setting out their case, the La Rose Plaintiffs submitted evidence to the court to link the actions of the Canadian government and the alleged constitutional and common law rights violations. The Plaintiffs brought evidence asserting that:

1. Climate change is real,
2. Climate impacts occur in Canada and cause risks to human health and ways of life, including impacts that are disproportionately borne by youth and Indigenous communities;
3. Canada exercises authority and control over greenhouse gas emissions via its regulation of the transportation and energy sectors, and;
4. Canada has failed in its stated climate commitments, and those commitments still fall short of what is scientifically compatible with a “stable climate system”. The Plaintiffs’ submissions provide a high level of detail into the lives of the 15 youth, and the ways that climate change has impacted their physical and psychological health and general quality of life.

The legal basis for the Plaintiffs’ claims are threefold; the Plaintiffs allege deprivation of their rights under s.7 and s.15 of the Charter, as well as their rights under the common law “public trust” doctrine.

Section 7 of the Charter protects the right to “life, liberty and security of the person”. The Plaintiffs allege that the stability of the climate system is profoundly intertwined with their safety (right to life) as well as their general health and development (right to security). The La Rose Plaintiffs further allege that the depravation of their s.7 Charter rights are not compatible with the principles of fundamental justice.

Section 15 of the Charter states that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethic origin, colour, religion, sex, age or mental or physical disability.” The Plaintiffs allege that they have been deprived of their s.15 rights because climate change has a disproportionate impact on youth and child development, that any inequalities or pre-existing prejudices are exacerbated by climate change, and that the Canadian government’s actions primarily serve the short-term economic interests of older persons and the fossil fuel industry.

The public trust doctrine is a common law legal principle that, in essence, means the “sovereign” (or government) holds certain resources in a trust-like relationship for the benefit of the public. In La Rose, the Plaintiffs allege that the public trust doctrine is both an unwritten constitutional principle and a binding common law obligation that operates to ensure that the Canadian government acts in the best interest of the public when dealing with “public trust resources”. The Plaintiffs allege that in Canada, “public trust resources” include the navigable waters, air, and permafrost. Under each category of “public trust resource”, the Plaintiffs set out the actions and impacts that they allege constitute violations of Canada’s public trust obligations.

Motions Judge Judgement

In October 2020, a Federal Court Judge dismissed the La Rose claims on a pretrial motion to strike. A pretrial motion to strike can be brough by a party to an action under the Federal Court Rules. A pretrial motion to strike asks the judge to strike out the opposing party’s claim on the basis that it “discloses no reasonable cause of action or defence”.

First addressing the Charter claims, the Federal Court Judge found that the Plaintiffs’ Charter claims were not justiciable and failed to state a reasonable cause of action. Justiciability is, in simple terms, “about deciding whether to decide a matter in the courts.”[1] If a claim is deemed non-justiciable, it is an issue that the court is not equipped or willing to adjudicate. The Judge found that “[t]he Plaintiffs’ position fails on the basis that there are some questions that are so political that the Courts are incapable or unsuited to deal with them”, and that the “finding on justiciability is supported both by the undue breadth and diffuse nature of the Impugned Conduct and the inappropriate remedies sought by the Plaintiffs.” In essence, the Judge found the Plaintiffs’ claims non-justiciable because they targeted a broad swathe of government action (or inaction), as opposed to a singular government policy or network of policies that can be conceivably quantified and connected.

With respect to the public trust claim, the Federal Court Judge found that it was justiciable and presented a legal question as to the existence of a public trust doctrine in Canadian law. Reviewing the arguments brought by the Plaintiffs in support of the existence of a Canadian public trust doctrine, the Judge concluded that “while there is a notion that public rights in the environment reside in the Crown these authorities do not approach the breadth of the rights and actionable interests that the Plaintiffs claim could exist at common law.” In essence, the Judge was reluctant to view previous Canadian Court decisions as “opening the door” to a Canadian public trust doctrine capable of supporting the Plaintiffs’ claims.

Federal Court of Appeal

In November 2020 the La Rose Plaintiffs appealed the dismissal of their case. On Dec 13, 2023, the Federal Court of Appeal partially overturned the decision by the motion judge and allowed for the s. 7 Charter challenge to proceed to trial. The Federal Court of Appeal upheld the dismissal of the case with regard to the s. 15 Charter challenge and the claim under the public trust doctrine.

[1] See Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (2nd ed. 2012), at p. 7