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

A proposed climate change class action suit by a Montreal environment group against the federal government was denied certification by the Quebec Court of Appeal after it held that it was not justiciable, the latest in a series of climate change litigation cases that have been thwarted by the justiciability doctrine, prompting questions over the successful viability of using broadly framed Charter arguments in climate justice suits in Canada.

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.”

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This story was originally published in The Lawyer’s Daily.

One Reply to “Justiciability a major hurdle for climate change lawsuits, assert legal experts”

  1. Nice to see that the courts are not lending themselves to the global warming racket.

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