This is a good and bad news story. In 2020 a group of 15 young people from seven provinces and one territory sued the Canadian government in the Federal Court, based on inadequate effort to deal with increasing climate breakdown (La Rose v. Canada). They maintain that Ottawa continues to miss its greenhouse gas emission (GHG) targets. The claim relies on section 7 (right to life, liberty and personal security) and s.15 (age discrimination) of the Canadian Charter of Rights and Freedoms, and violation of a common law public trust doctrine (the government’s duty to preserve and protect inherently public resources such as air and the atmosphere). For reasons that make little sense from an environmental perspective, this doctrine has not been adopted by Canadian judges.
In a separate proceeding launched the same year, two Wet’suwet’en House groups sued Canada for contributing to climate change by allowing excessive GHGs (Misdzi Yikh v. Canada). This failure threatens their identity, culture, relationship to the land and food security. They also rely on ss. 7 and 15 of the Charter, breach of Canada’s obligations under international law (2015 Paris Agreement) and the Canadian Net-Zero Emissions Accountability Act (2021), and exceedance of Parliament’s general power under s.91 of the Constitution Act to make laws for the peace, order and good government of Canada (POGG).
These two lawsuits have significant national importance for the climate movement. Ottawa chose to respond by bringing preliminary motions to strike out both claims without proceeding to trial, and two judges unfortunately acceded: Justice Manson in La Rose (2020 FC 1008) and Justice McVeigh in Misdzi Yikh (2020 FC 1059). Their orders were appealed to the Federal Court of Appeal (FCA) and oral submissions (argument) by counsel in both appeals were heard by a single panel of three judges in February 2023.
In a long-awaited decision issued on December 12, 2023, the two motion orders were overturned in part (2023 FCA 241). Click HERE to read the FCA’s 52-page decision. As a result, both cases will now be allowed to proceed to trial provided that suitable amendments are made to the plaintiffs’ pleadings (statements of claim). While the planet burns, the plaintiffs and the Canadian public have lost upwards of three years fighting Ottawa’s wasteful dismissal motions.
It was a partial rather than total victory for the cause of climate action, as some of the rulings did not support the plaintiffs. The pleadings in both cases were considered by the FCA to be flawed and inadequate and will require substantial amendments in order for the claims to move forward. But that said, it is the first court decision at an appellate level to allow civil climate claims by ordinary Canadians against government to proceed to trial.
It is also worth noting that the decision of the Ontario Superior Court of Justice, dismissing the youth Charter case of Mathur v. Ontario after a full hearing, was released on April 14, 2023. It is discussed in detail HERE. After its release, the FCA panel summoned additional submissions from counsel about its impact on these appeals, if any. Mathur involves similar legal issues, including ss.7 and 15 of the Charter, and it is referred to repeatedly in the FCA decision. The Mathur judgment is under appeal, and oral argument before the Ontario Court of Appeal is scheduled for January 15-16, 2024.
First the good news. The FCA allowed the claim related to life, liberty and personal security (Charter s.7) to proceed: “The claim of a right to a healthy and livable environment, and the legislative sanctioning of something less, explores the scope of section 7 and tests its boundaries” (paragraph 109 of decision). The youth plaintiffs claimed, in the court’s synoptic view, to “have a Charter protected right to live in a world with a stable climate system” (par.106). The court found that climate change is particularly affecting northern and Indigenous communities and will disproportionately fall on young people to address. It accepted that there are “profound moral, social and economic questions” raised by intergenerational and inequitable aspects of climate change (par.82 & 87).
The decision also noted a 2023 report by the United Nations Committee on the Rights of the Child, which urged states to take action as children’s lives, survival and development are challenged by environmental degradation and climate change. As noted by the court, Canada has ratified the UN Convention on the Rights of the Child (par.87). This occurred back in 1991.
My favourite and most hopeful line during the appeal hearing involved a comment by one of the FCA judges. It occurred during submissions made on behalf of Ottawa, and the comment has also been included in the decision. The issue at hand was whether, in relation to s.7, the plaintiffs were making ‘positive’ claims (requiring the government to do something more constructive) or ‘negative’ claims (requiring the government to stop doing something harmful). The case law has indicated that “special circumstances” will be required to advance a positive claim. After noting the “widespread and grave” effects of climate change, including “injury and death” among other things, and that it poses “a threat of the highest order to the country, and to the future of humanity which cannot be ignored,” the decision states: “If these do not constitute special circumstances, it is hard to conceive that any such circumstances could ever exist” (par.116). The government’s lawyer had no answer.
The FCA decision also determined that judges err if they pre-emptively strike out potentially complex, contentious, novel and/or controversial cases (even if they push the boundaries of the court’s competence) at the preliminary stage, provided there is a reasonable prospect of success at trial. A claim should only be struck at the outset “if the action is certain to fail because it contains a radical defect” (par.120).
The motion judge in Misdzi Yikh had ruled that climate change is a political issue which should be left exclusively for the executive and legislative branches of government. “Justiciability” (being appropriate for adjudication by the court) has been a very problematic issue in climate litigation, so much so that it has been a total barrier in some cases. Fortunately the FCA ruled that the s.7 claims are justiciable and capable of being proved by means of evidence introduced at trial. The court disagreed with the motion judges and found “no reason to conclude that harms flowing from climate change and climate-related legislation are manifestly incapable of proof” (par.114).
To my knowledge, the only other appeal-level decision in Canada involving similar claims, had ruled otherwise on the justiciability issue; it was made by the Quebec Court of Appeal (QCA) in December 2021. The case name is ENvironnement JEUnesse v. Procureur General du Canada. It was another youth climate case brought against the federal government that relied upon the Charter. On July 28, 2022, the Supreme Court of Canada denied the plaintiffs’ application for leave to appeal the QCA decision. This was the end of the road for that proceeding.
Now the bad news. The claims based on age discrimination (Charter s.15), public trust doctrine, and the general power (POGG) of the Constitution were barred on the basis that they are not based on any established legal foundation in Canadian law and jurisprudence. In my opinion, the court appears to be incorrect and inconsistent in finding that “there is no present harm [to the young plaintiffs] to which the section 15 challenge can anchor itself” (par.124). This is demonstrated by the contradiction evident in par.125.
The FCA decision is thoughtful, well written and comparatively brief (mercifully). It is well worth reading.
Alan D. Levy is a member of SCAN!’s Legal Group.