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.

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.

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.