Justiciability a major hurdle for climate change lawsuits, assert legal experts

The Quebec Appeal Court decision, the third climate change litigation case since 2020 that failed to pass the justiciability threshold, held that deference to the legislative power is “necessary” as it is better placed to weigh the “countless challenges” of global warming, adding that it is not the role of the courts to dictate to the State the choices it should make.

“It’s very disappointing,” remarked Jasminka Kalajdzic, a law professor at the University of Windsor and director of the class action clinic at Windsor Law. “Justiciability is a hurdle. This is the third decision by a court in Canada that’s concluded the issue of climate inaction and climate action on the part of the federal government is not something that the courts can weigh in on. So there’s an uphill battle.”

According to the Sabin Center for Climate Change Law, 25 climate change litigation cases have been filed in Canada, three of which have adopted a human rights approach to compel governments to mitigate climate change or take steps to protect vulnerable communities facing its impacts. These strategies are “necessary in light of the lack of a codified or common law substantive right to a sustainable environment,” as is the case in Canada, pointed out Kalajdzic in a 2021 study entitled “Climate Change Class Actions in Canada.”

The human rights framework has had some success, elsewhere. In Urgenda Foundation v the State of the Netherlands in 2019, Holland’s Supreme Court found that the state had a legal duty of care, based on international human rights principles, to take sufficient action to address climate change. In Pakistan, the Lahore High Court found in Leghari v. Pakistan that the state’s delay in implementing a climate change policy breached the fundamental rights of citizens.

But in Canada, the human rights approach has not swayed the courts, with one exception. In Misdzi Yikh v. Canada, 2020 FC 1059, Federal Court Justice Glennys McVeigh found that since the Charter arguments were not directed at any specific laws, “it is difficult to find sufficient legal elements in the Charter claims for them to be justiciable.” In La Rose v. Canada, 2020 FC 1008, Federal Court Justice Michael Manson too held in that Charter claims under ss. 7 and 15  were not justiciable as they were seeking relief beyond the appropriate role for the courts. In Mathur v. Ontario, 2020 ONSC 6918 Ontario Superior Court Justice Carole Brown however held that a lawsuit based on the inadequacy of the provincial government’s response to climate change was justiciable because the “applicants are challenging very specific governmental actions and legislation,” unlike Misdzi Yikh and La Rose.

The Quebec Court of Appeal recently reached a similar conclusion to the Federal Court in a climate change-related class action involving ENvironnement JEUnesse (ENJEU). In 2018, the environmental non-profit organization launched a class action on behalf of Quebeckers aged 35 and under against the Government of Canada alleging that the federal government is infringing sections 7 and 11 of the Canadian Charter rights of young people by setting inadequate greenhouse gas (GHG) emission reduction targets to avoid dangerous climate change impacts. The proposed class also alleged that the federal government violated their right to a healthy environment, as guaranteed by s. 46.1 of the Quebec Charter of human rights and freedoms.

The proposed class sought a declaration by the court stating that the Government of Canada is violating the fundamental rights of class members by failing to put in place the necessary measures to limit global warming. It also sought an order to compel the federal government to stop its infringement of the substantive rights of class member, an order to pay $100 per class member as damages, not compensatory but punitive, and in lieu of payment to class members, an order to implement remedial measures to help curb global warming.

Quebec Superior Court Justice Gary Morrison found in Environnement Jeunesse c. Procureur général du Canada, 2019 QCCS 2885, that the class’ claim was justiciable, holding that “the executive branch of the Canadian government has the obligation not to act in such a way as to harm the lives of individuals and the safety of their person.” But Justice Morrison denied certification because the proposed class action, which covers only Quebec residents under 35, was both arbitrary and inappropriate – a decision appealed by ENJEU.

The Quebec Appeal Court too denied the class certification but it also concluded that the motions judge “erred in concluding” that the action was justiciable. The unsigned Appeal Court decision found that “all the alleged facts” accuse the Canadian government of a “fault of omission” resulting from its inaction in the face of global warming. It added that the conclusions sought by ENJEU is tantamount to asking the courts to tell the legislature what to do, which is not their role.

“It must sometimes be recognized that the exercise of legislative power or the conduct of state affairs by the executive branch requires the weighing of many external considerations and the making of policy choices that are not for the courts to evaluate,” said the Appeal Court in Environnement Jeunesse c. Procureur général du Canada, 2021 QCCA 1871, a unanimous judgment rendered by Justices Martin Vauclair, Geneviève Cotnam and Benoît Moore on December 13^th. “It is difficult to imagine the courts, through class action, dictating to the state, in the absence of legislative challenge or affirmative action, the course it should take.”

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The Appeal Court however did not foreclose the possibility of hearing cases dealing with climate change. “No one can deny the importance of the debate on global warming and the fact that the solution lies, in particular, in the management of greenhouse gases,” said the Appeal Court. But for such cases to be justiciable, plaintiffs will have to challenge the validity of a particular law enacting measures to address GHG emissions, added the Appeal Court.

But Bruce Johnston, a Montreal class action law who unsuccessfully plead on behalf of the environmental group, believes that the Appeal Court’s interpretation of justiciability is very restrictive.

“The basic question of justiciability is whether it is appropriate for the courts to decide these issues,” said Johnston of Trudel Johnston & Lespérance, pointing out that the Mathur case was deemed to be justiciable as were the Dutch and Pakistani cases. “In our society sooner or later many important societal issues end up in court. When the state chose to create a Charter, parliamentary supremacy was set aside for constitutional supremacy. A violation of the Charter, in this case the right to life and security, is a question for the courts if the behavior of the state violates these rights.”

Johnston also disputes the Appeal Court’s interpretation of the alleged facts in the case. Contrary to what the Appeal Court stated in its decision that the class reproaches Ottawa for “acts of omission,” Johnston maintains that the proposed class alleges that the federal government set inadequate targets and put in place deficient measures, both of which are faults.

Kalajdzic believes that there are good grounds to appeal the decision. Echoing Johnston, Kalajdzic said the Appeal Court “ignored” that there was allegation that government actions were contributing to climate change and therefore violated the Charter’s rights of the class. Kalajdzic also noted that judicial review of the Charter is not restricted only to government acts but can potentially include instances of government inactivity. That’s what happened in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3 when the Supreme Court of Canada intervened as a result of government inaction.

“In the same way, I think we could characterize some of what the plaintiffs were arguing in ENJEU that the failure of the government to properly fund projects or initiatives to reduce GHGs could similarly be viewed as a violation of the right to life,” said Kalajdzic

But Paule Halley, Canada Research Chair in Environmental Law, is not surprised by the ruling as the proposed class lacked specificity and sought to attack issues at the policy level.

“The lesson to be learned from the current state of court decisions in Canada is that in order to get to the bottom of the claims, the challenges that are put forward for inaction or insufficient action will have to be focused and specific for the courts to intervene,” said Halley a Université Laval law professor and co-editor of the “Environment in the Courtroom.”

Halley, though wondering whether class actions are the appropriate vehicle to bring forward climate change-related litigation cases, has no doubt that other climate change-related litigation cases will emerge. “This is one of the manifestations of civil society, with citizens expressing their concern for a stable climate,” said Halley. “We are starting to talk about the right to a stable climate. So these are windows of opportunity to highlight, to put forward these concerns. Even though the court cases may not be necessarily won, it still brings to the forefront a very real social issue.”

Kalajdzic has no doubts about the pertinence of class actions to seek climate justice. “There seems to be a paralysis across the board when it comes to climate justice,” said Kalajdzic. “People need to use every tool at their disposal, and class actions are one of them. There has to be a way to get these issues before the court when usual political process is not getting us anywhere.”

ENJEU intends to apply for leave to appeal before the SCC.