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Litigating Climate Change in Canada – Evidence over Ideology

Contributed by Robert Lyman ©  2020. Lyman’s bio can be read  here.

Executive Summary

Some prominent law firms in Canada have recently published papers analysing what many see as an increasing trend – the filing of lawsuits that seek to hold governments and private companies liable for the damages allegedly caused by climate change.

https://blog.friendsofscience.org/wp-content/uploads/2020/07/Litigating-Climate-Change-FINAL-rev.pdf

Note: An earlier version of this report was corrected on page 6, to change the word ‘inappropriate’ to be ‘appropriate’ for court review.

Thirteen cases of climate litigation have been filed in Canada. Of these four are particularly worth noting. In November, 2018 Environment Jeunesse (ENJEU) filed a class action lawsuit against the Government of Canada claiming that the federal government’s failure to adopt certain greenhouse gas emission targets violates the rights and freedoms of the “class”, defined as all Quebec citizens aged 35 and under. ENJEU stated that the government’s “inaction” on climate change constitutes bad faith and is an unlawful and intentional interference with the right of class members to life, liberty, and security of the person as well as their equality rights. In July 2019, the Quebec Superior court rejected the lawsuit while finding that the issues were appropriate for court review, thus leaving the door open for another claim.

In October, 2019, a group of 15 youths, aged 10 to 19, from across Canada filed a lawsuit in the Federal Court of Canada against the federal government claiming that the government had failed to “maintain a stable climate system capable of sustaining human life and individual liberties, thereby violating the Canadian Charter of Rights and Freedoms, and failing to protect public trust resources and Canadian children. They sought declaratory relief, as well as an order requiring the federal government to implement an enforceable Climate Recovery Plan to achieve emission reductions.

West Coast Environmental Law claims: “A first step in demanding accountability is realizing that you’re entitled to it.” This is part of their campaign to have cities sue Big Oil. https://www.wcel.org/program/climate-law-in-our-hands/bc-communities

There also are a number of new or incipient cases of litigation by municipalities against Alberta-based oil companies. In January 2019, the City of Victoria was the first to file a class action lawsuit against Alberta petroleum producers. Other British Columbia municipalities subsequently joined in. These lawsuits seek to recover costs incurred by municipalities to prevent and clean-up damage caused by events allegedly linked to climate change, such as floods and wildfires.

In the case of Syncrude Canada Ltd. v Attorney General of Canada, Syncrude challenged the applicability of criminal law to the regulations requiring that diesel fuel in Canada contain at least two per cent renewable fuel. The Federal Court disagreed with Syncrude’s assertion that the production and consumption of fossil fuels are not dangerous and do not pose a risk to human health and safety. In an example of the use of “judicial notice” (i.e. a matter “clearly uncontroversial and beyond reasonable dispute”), the court stated that climate change “is a real, measured evil, and the harm has been well documented”. The Federal Court of Appeal upheld this finding.

There are at least five legal principles that would be involved in the resolution of present and possible future climate damage lawsuits in Canada.

Canadian courts generally refrain from interfering in government policy decisions because “policy and planning decisions are discretionary decisions normally made at the high level of government dealing with the allocation of resources and the determination of priorities in respect of governmental services. The decisions involve economic, social and political considerations in deciding which statutory powers will be exercised, when they will be exercised, where they will be exercised, and how they will be exercised. These are uniquely governmental decisions and the remedy for bad government lies in the ballot box, not the courts”.

• With respect to lawsuits against petroleum companies in Canada for performing their business activities of developing, producing and transporting petroleum products, it must be noted that such companies are authorized by federal and provincial authorities to conduct their affairs for the public and economic good and are highly regulated and taxed at all levels of government.

• In claiming damages, a claimant must demonstrate a causal link between the activity of the defendant and the alleged damage. In other words, a party claiming climate change damages against a government in Canada or against a firm operating in Canada that has emitted carbon dioxide must show how those emissions constituted an interference with the public good (e.g. by causing floods, drought or heat waves).

The Rules of Evidence generally require that a plaintiff show, through a clear chain of logic supported by verifiable analysis and facts, that there is demonstrable causality between a defendant’s actions and the damage claimed. In the Syncrude case, the court used judicial notice to evade that requirement.

Attribution: When, as is the case with greenhouse gas emissions, the alleged damage is a function of accumulated emissions by millions of emitters world-wide over at least a century and a half and the effects, if any, will be suffered by millions of parties over the next century and beyond, how can one attribute responsibility for damage and qualification to receive compensation?

Canada ratified the Paris Agreement on October 5, 2016. Canada’s treaty obligations under that Agreement do not include any requirement that Canada:

• meet any specific GHG emissions reduction target;
• pay any penalty if it fails to meet its voluntary emissions reductions targets;
• pay any specific amount or share of the collective financing for developing countries;
• use any specific set of policy instruments (e.g. taxes, regulations, subsidies, etc.) in pursuing its voluntary emissions reductions goals.

It is troubling to see that, in all of the lawsuits that have been launched by and against governments in Canada to date, in no case has a government or company challenged the scientific or economic grounds on which the claims for injury were made. One can only speculate about the political judgements that lie behind such failures to address what is arguably the weakest parts of the environmentalist legal case. Sooner rather than later, some government or other party with the funds to take a stand may have to rise to the occasion.

9 Comments

  1. Andrew Roman

    It is important to understand the legal strategy of both the plaintiffs and the defendant (federal government).

    Novel litigation is a can’t lose strategy for environmental NGOs and the law firms representing them. They don’t expect to actually win the case, as the odds against that are low. Nevertheless, this kind of theatre of the courts gets a huge audience, especially as amplified by the media. If the plaintiffs lose, they attract sympathy and donations because they can claim to have fought the good fight for all of us. In the unlikely chance that they win, that would be an added bonus.

    The theory behind judicial notice is that it should only be used for facts that are so open and notorious as to be beyond dispute. Climate change, and particularly what Canada can do about it, is not something of which a court can take judicial notice. Under normal circumstances a legally represented defendant would know that and would object.

    The federal government’s strategy in these cases is not to fight back vigorously. That’s because whatever climate policy the PM wants will be enhanced by saying that he’s under pressure to go further from these court actions. By not going as far as the pressure, he can claim to be moderate. So in the end there is a symbiosis between the plaintiffs and the defendant rather than a true adversarial relationship. And that’s only because the defendant wants it that way.

    In some of these cases the courts may be willing to permit interveners to participate. Interveners are normally public interest groups who have demonstrated track record in that area of science or law. Your organization might consider seeking intervenor status in some of these cases, to present the side of the argument that the feds refused to present. I would think that one or more large law firms may be willing to provide counsel on a pro-bono basis.

  2. Rodney Reid Stuart

    It is truly amazing that few people actually understand what “climate” is.
    “noun
    the composite or generally prevailing weather conditions of a region, as temperature, air pressure, humidity, precipitation, sunshine, cloudiness, and winds, throughout the year, averaged over a series of years.”
    This series of years is generally accepted to be thirty or more.
    Note that climate is REGIONAL, and its metric is a classification in either the Koppen-Geiger or Trwartha classification systems.
    A worthwhile exercise: Using either classification system, try to find even one region in Canada, or for that matter the world, which has changed significantly in the last hundred years, ignoring such changes obviously due to changes in land use.

  3. Ken Van de Burgt

    Do you know where there is any quality assurance being done at any level of Government in Canada to test, check, and replicate the science about global warming hypothesis that we are being told by UN IPCC is representing a threat?

    If the science shows there is no AGW threat then there is no need for policies to restrict carbon dioxide emissions.

    The salient data indicates there is no threat. If the data I’m seeing is a true reflection of climate change then there is no evidence to support Carbon Taxes and like policies.

    This lack of quality assurance by our government in matters of science is a fundamental issue and we have to get it right.

  4. Bob Lyman

    Andrew, thank you for your excellent comments and insights. I take your point about judicial notice, and that is what one would expect from the Supreme court decision defining when it should be used. In the Syncrude case, the courts found that oil-based emissions of fossil fuels to be “evil”, without evidence to that effect as far as I am aware. Was this because the decisions were made on appeal, or did Syncrude representatives simply fail to object?

    I very much like your idea that a climate “realist” organization might seek intervenor status. Unfortunately, the few such organizations in Canada are poorly funded and do not coordinate among themselves, while the ENGOs enjoy hundreds of millions of dollars in funding every year (much of it from governments) and have been coordinating for two decades.

  5. Andrew Roman

    For the first 16 years of my legal career I only did pro bono cases, and referred anyone with money to a commercial law firm. There are still lawyers willing to do one or two cases a year on this basis.

    If a party asserts that emissions are evil and no one objects there is a strong likelihood the court will accept it. But that does not create a binding precedent for any other cases. If you intervene and a plaintiff alleges that oil is evil or CO2 is air pollution or global warming is a crisis you can disagree and call evidence (e.g. Lomborg, to testify about his new book) on that subject.

    You don’t need a lot of money for an intervention. As you are not the plaintiff or defendant, so you won’t be ordered to pay either of their costs whether you win or lose. Your only real expense might be photocopying and travel to the courthouse.

  6. parkergallantenergyperspectivesblog

    It is becoming obvious the eco-warriors are upping their attack(s) and doing everything in their power to create a continuing blitz on those who haven’t sipped the kool-aid. Any disagreement with their views or any scientific proof or evidence that their claims are false holds no sway with them. It is sad the judicial system even allows them to make those claims without proof or without push-back from those with opposing views and scientific evidence.

  7. Andrew Roman

    The federal government of the day does not appear to have opposing views. If FOS and other such NGOs don’t push back with science and logic the eco-warriors will win by default.

  8. songhees

    Dr Tim Ball – Historical Climatologist

    timothyball@shaw.ca

    Book ‘The Deliberate Corruption of Climate Science’.

    Book “Human Caused Global Warming”, ‘The Biggest Deception in History’.

    https://www.youtube.com/watch?v=tPzpPXuASY8

    https://www.youtube.com/watch?v=sO08Hhjes_0

    https://www.technocracy.news/dr-tim-ball-on-climate-lies-wrapped-in-deception-smothered-with-delusion/

    BREAKING – Dr.Tim Ball wins against Dr Michael Mann lawsuit
    https://wattsupwiththat.com/2019/08/22/breaking-dr-tim-ball-wins-michaelemann-lawsuit-mann-has-to-pay/

  9. Bastien

    I think those who should be sued are those spreading and pedaling the fallacies. The major news outlets creating the eco hysteria and the eco anxiety.

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