ENvironnement JEUnesse (ENJEU) v. Canada (Attorney General)
Case name: ENvironnement JEUnesse (ENJEU) v. Canada (Attorney General)
Jurisdiction: Canada (Quebec)
Type of claim: Challenge of federal government’s insufficient climate policy
Summary of result: Application to authorize class action rejected.
Judgment final: Yes
Court instances:
| Court | Type of decision | Summary of decision |
|
Quebec Superior Court Decision of 11 July 2019 2019 QCCS 2885
|
First instance | Application to authorize class action rejected. |
|
Quebec Court of Appeal Decision of 13 Dec 2021 2021 QCCA 1871 |
Appeal decision | Appeal dismissed. |
|
Supreme Court of Canada Decision of 28 July 2022 2022 CanLII 67615 (CSC) |
Leave to appeal | Leave to appeal dismissed. |
Source of claims: Constitutional Rights: s.7 and s.15 of the Charter of Rights and Freedoms
Rights under Quebec’s Charter of Human Rights and Freedoms
Tort law (Quebec civil law)
Summary of Judgment
Facts and claims of the parties
The applicant ENvironnement JEUnesse (ENJEU) is a non-governmental organization (NGO), mainly of young people, which is dedicated to educating Quebecers about environmental issues. ENJEU requests authorization of a class action on behalf of all Quebec residents aged 35 and under as of 26 November 2018.
Class Action
A class action is a type of lawsuit in which one or several persons, or often an NGO, represents a large number of people who have suffered a similar harm at the hands of the same party. The goal is to give people access to justice who would not otherwise be able to afford a lawsuit, as well as preventing courts from having to decide a large number of very similar cases.
The person bringing a class action will define who constitutes the class (e.g. all persons who suffered harm due to a particular incident or product). If this is approved (certified) by the court, all persons fitting the definition will automatically be included in the class action without having to do anything, unless they specifically opt out.
Class actions in Canada are governed by provincial legislation, so the detailed requirements for bringing such a lawsuit depend on which province it is brought in. In Quebec, article 575 Civil Procedure Code states that the court shall authorize a class action if it is of the opinion that
(1) the claims of the members of the class raise identical, similar or related issues of law or fact;
(2) the facts alleged appear to justify the conclusions sought;
(3) the composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings; and
(4) the class member appointed as representative plaintiff is in a position to properly represent the class members.
ENJEU argues that Canada disproportionately generates about 1.6% of the world’s greenhouse gases (GHGs), even though Canada’s population is only about 0.5% of the world’s, thus being considered one of the largest GHG producer in the world. They further assert that Canada’s targets for GHG emissions reduction committed to under international agreements are inadequate and insufficient, and nonetheless Canada has even failed to meet these targets on two separate occasions and is likely to also miss its target for 2020.[1]
This, ENJEU argues, constitutes a violation of fundamental rights protected by the Canadian Charter of Rights and Freedoms (“Canadian Charter”) and the Quebec Charter of Human Rights and Freedoms (“Quebec Charter”). Furthermore, it constitutes a tort under Quebec civil law to which the federal government subjected itself by adopting the Crown Liability and Proceedings Act.[2]
ENJEU seeks a declaration by the Court that the Government has failed in its obligations under the Canadian Charter Quebec Charter to protect the fundamental rights of its citizens, as well as an order to stop these interferences. They further see punitive damages of $100 per class member, which, instead of being paid out to each class member, shall be used for measures to curb global warming.[3]
The Respondent, the federal Government (“Canada”), argues that a class action is not the appropriate procedural vehicle for this type of claim. Furthermore, Canada regards the claim as non-justiciable because the order sought by ENJEU would be an interference with the political sphere of the executive and legislative branches. In addition, the federal Government does not have exclusive competency over environmental matters and thus cannot on its own stop the alleged violations.[4]
Superior Court decision
At the first stage of a class action, the Court only decides whether or not to grant authorization to the Applicant t bring the case on behalf of the class. This includes whether the case is suitable for a class action, and whether the claim is not manifestly ill-founded. The Court does not decide the claim on the merits.
The Superior Court refuses to authorize the class action, holding that the 35-year age cut-off was arbitrary. Why not choose 20, 30, 40 or 60 years instead?[5] Besides, the Court notes that a large part of the proposed class are minor children whose best interest would not be served by automatically including them in a lawsuit.[6]
Furthermore, the Court finds that a class action is not the appropriate procedure in this case because it would not provide any benefit over an application brought by a single person. ENJEU mainly seeks a declaration that Canada has been violating the Canadian Charter, as well as an order to stop the infringement. If a single person were to bring such a lawsuit, a judgment would have erga omnes effect – meaning Canada would have to comply with the judgment in relation to all Canadians and not just in relation to the individual plaintiff. A class action could not reach anything other than such a lawsuit by a single person, and would therefore be useless.[7]
While thus rejecting the application, the Court also makes some comments regarding the justiciability of the claim if the class action had been authorized. The Court considers the alleged violation of the Canadian Charter to be a justiciable issue.[8] The Court furthermore finds that inaction of Canada may be reviewable,[9] and that the moral and political considerations involved in the issue do not exclude court intervention.[10]
The Court further holds that it is possible – or at least may not be excluded at this stage of the proceedings – that Canada may be liable for damages under the Crown Liability and Proceedings Act for a violation of the Quebec Charter.[11]
Court of Appeal decision
The Quebec Court of Appeal dismissed the appeal. While briefly confirming the Superior Court’s holding that the selection of the class, particularly the 35-year age cut-off, seems arbitrary, the Court of Appeal is much more critical regarding the justiciability of the claim. The Court notes that the claim did not challenge a specific law or other state action. Rather, it alleges a governmental failure to act. This is highly problematic, in the Court’s view, because it is not its role to tell the legislature what to do. Besides, determining justiciability also requires considering what is appropriate for judges to decide. In this case, the Court holds, the legislature is better placed to balance the myriad issues involved in limiting global warming.
Leave to appeal dismissed
The Supreme Court subsequently dismissed an application for leave to appeal.
[1] Superior Court decision at paras. 8-12.
[2] Superior Court decision at paras. 13-14.
[3] Motion for authorization to institute a class action and obtain the status of representative, dated 26 November 2019, at pp. 20-21.
[4] Superior Court decision at paras. 16-22.
[5] Superior Court decision at paras. 115-23.
[6] Superior Court decision at paras. 124-33.
[7] Superior Court decision at paras. 141-43.
[8] Superior Court decision at paras. 46-60.
[9] Superior Court decision at paras. 61-67.
[10] Superior Court decision at paras. 68-71.
[11] Superior Court decision at paras. 73-78.