Canada

Several cases are currently pending in Canadian courts in which the plaintiffs allege that either the federal government or a provincial government is making insufficient efforts to protect the plaintiffs from the threats of climate change.

These cases are based on two main allegations:

1. The actions taken by the government which contribute to climate change, or respectively the insufficient measures taken to limit greenhouse gas emissions and prevent climate change, violate the plaintiffs’ constitutional rights under sec. 7 and sec. 15 of the Canadian Charter of Rights and Freedoms (Charter).

Sec. 7 states that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Sec. 15 para. 1 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 ethnic origin, colour, religion, sex, age or mental or physical disability.

2. The government violates its obligations to protect the climate and other natural resources under the Public Trust Doctrine.

One of the essential questions raised in these cases is whether the claims made by the plaintiffs are justiciable. In other words: Do courts have the competency and legitimacy to decide whether the government’s climate policies are insufficient, or is this a purely political matter that should be left to the government and legislature to decide?

Two early climate-related lawsuits with regard to Canada’s commitments under the Kyoto protocol were both dismissed by the courts as non-justiciable.

One claim was brought by Friends of the Earth in 2009, demanding that the Canadian government comply with the Kyoto Protocol Implementation Act. The second claim, brought by Daniel Turp in 2012, challenged Canada’s withdrawal from the Kyoto Protocol.

Friends of the Earth v. Canada (Governor in Council) (re. Kyoto Protocol Implementation Act)

The Canadian liberal government had signed onto the Kyoto Protocol in 1997 and committed Canada to reduce greenhouse gas emissions. The conservative government which came into power in 2006 was opposed to the Kyoto Protocol and made clear that it did not intend to implement it.

Parliament subsequently passed the Kyoto Protocol Implementation Act (KPIA) which included various provisions to make the government comply with Canada’s obligations under the Kyoto Protocol. When the government failed to do so, the ENGO Friends of the Earth brought a legal challenge.

The Court, however, found the matter to be non-justiciable and dismissed the claim.

For more on this case, click here.

Turp v. Canada (Minister of Justice and Attorney General) (re. Withdrawal from Kyoto Protocol)

The conservative Canadian government decided in 2011 to withdraw from the Kyoto Protocol. The Applicant Turp argued that the withdrawal violated the Kyoto Protocol Implementation Act (KPIA) as well as the separation of powers and the democratic principle.

The Court found that there was no such violation. Since the conduct of foreign affairs and international relations falls exclusively under the executive branch of government, it is not reviewable by courts.

For more on this case, click here.

The following cases are currently pending in Canadian courts:

La Rose v. Canada, brought in Federal Court in October 2019, is the most prominent case challenging Canada’s actions and inactions with regard to greenhouse gas emissions.

La Rose v. Canada

The Applicants, fifteen children and youth from across Canada, argue that Canada is contributing to and allowing an excessive amount of greenhouse gas emissions. This, the Applicants allege, violates their fundamentals rights as well as Canada’s responsibilities under the public trust doctrine.

The Federal Court struck out the claim, holding that the Charter challenges are not justiciable because they do not target a specific law or policy. The Court is not in a position to evaluate Canada’s overall approach to climate change. With regard to the public trust doctrine, the Court found that while this is in principle a justiciable issue, such a doctrine has not been recognized in Canadian law.

In December 2023, the Federal Court of Appeal overturned the decision, allowing the Charter challenge to proceed to trial.

For more on this case, click here.

Misdzi Yikh v. Canada (also known as Lho’imggin et al. v. Canada) involves a similar legal claim, brought on behalf of two house groups of the Wet’suwet’en indigenous peoples.

Mathur v. Ontario is slightly different from the two previously mentioned cases, not only because the Defendant is a provincial government, but especially because the lawsuit targets a specific law and a climate change plan which is based on this law.

Mathur v. Ontario

Ontario had previously enacted the Climate Change Mitigation and Low-carbon Economy Act, 2016, which established a cap and trade program as well as three targets for reducing the amount of greenhouse gas emissions in Ontario by 15% by the end of 2020, by 37% by the end of 2030, and by 80% by the end of 2050, compared to 1990 levels.

In 2018, Ontario repealed the Act and instead published a Plan which foresees lower greenhouse gas reduction goals of 30% below 2005 levels by 2030.

Seven young Ontario residents challenged these new reduction goals as insufficient and in violation of their rights under sec. 7 and sec. 15 of the Charter.

In a first step, the Ontario Superior Court of Justice rejected a motion by Ontario to strike out the claim, allowing the case to proceed to the “main” stage of merits review. The Ontario government is currently appealing the decision.

For more on this case, click here.

ENvironnement JEUnesse (ENJEU) v. Canada is a class action lawsuit brought in the Quebec Superior Court.

ENvironnement JEUnesse (ENJEU) v. Canada

The non-governmental organization ENJEU sought to bring a class action on behalf of all Quebec residents aged 35 and under, challenging Canada’s climate policies.

The Quebec Superior Court refused to authorize the class action, holding that the 35-year age cut-off was arbitrary and that a class action was not an appropriate procedure for such a case.

However, the Court also commented on the justiciability of the claim if the class action had been authorized, noting that it would regard Canada’s climate policy and its impact on Charter rights as a justiciable matter.

For more on this case, click here.

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