The Federal Court’s recent dismissal of a climate change lawsuit brought by a group of 15 Canadian youths has been appealed to the Federal Court of Appeal. In La Rose v Canada,[1]the Plaintiffs claimed against Her Majesty the Queen in Right of Canada and the Attorney General of Canada, alleging that Canada, through its actions and inactions, was:

  • continuing to cause, contribute to and allow a level of greenhouse gas (“GHG”) emissions that is incompatible with a stable climate system;
  • adopting GHG emission targets that are inconsistent with the level of ambition dictated by the best available climate science;
  • failing to meet Canada’s GHG emission targets; and
  • actively participating in and supporting the development, expansion and operation of high-emitting industries and activities involving fossil fuels.

The Plaintiffs argued that the cumulative effects of GHG emissions occurring from this conduct unjustifiably infringed their rights to life, liberty and security, as well as equality, under sections 7 and 15, respectively, of the Canadian Charter of Rights and Freedoms (the “Charter”).

The Plaintiffs also argued that Canada had breached the “public trust doctrine,” a novel claim based on a belief that the state holds certain common resources in trust for the general public’s use and benefit and is, therefore, obligated to protect and preserve the integrity of such resources. The Plaintiffs identified navigable waters, the foreshores and the territorial sea, the air (including the atmosphere) and the permafrost as public trust resources in this claim.

Motion to Strike Granted

On February 7, 2020, Canada filed a motion to strike the Plaintiffs’ Statement of Claim. This required Canada to satisfy the court that it was plain and obvious that the Statement of Claim failed to disclose a reasonable cause of action.[2]

Despite the high threshold, Justice Manson granted the motion, ruling that neither Charter claim was justiciable. He found that Canada’s conduct challenged by the Plaintiffs could not sustain a section 7 Charter analysis due to its “undue breadth and diffuse nature,” and that the Plaintiffs failed to make clear what impugned law created a distinction to be challenged through a section 15 Charter claim. With respect to the public trust doctrine, Justice Manson stated that, although the doctrine’s novelty was not a bar to its justiciability, this doctrine failed to disclose a reasonable cause of action and was not supported in Canadian law.

Justice Manson also took issue with several of the Plaintiffs’ proposed remedies. For instance, while the Plaintiffs sought an order requiring Canada to develop and implement a climate recovery plan, Justice Manson found that this would pose “an incursion into the policy-making functions of the executive and legislative branches by requiring specific standards that the climate recovery plan must meet.”

Justice Manson’s stance on the authority to regulate a minimum emissions reduction target differs from that of the Dutch Supreme Court in The Netherlands v Urgenda, wherein the Court ordered the Netherlands government to adopt a mandatory minimum emissions reduction target. In Urgenda, the Urgenda Foundation (a Dutch non-profit) and 900 Dutch citizens argued that the Dutch state was violating Articles 2 and 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, which protect the right to life and respect for private and family life, respectively.

The Court observed that under Article 13 of the European Convention, national law must propose an effective legal remedy against an existing or imminent violation of the Convention’s safeguarded rights. The Court emphasized that, while the state retains discretion to decide how to offer this remedy, the steps it takes must be reasonable and suitable. As the Netherlands’ emissions reduction target fell outside the suggested target range for developed countries based upon a UN Intergovernmental Panel on Climate Change (“IPCC”) scenario of limiting global warming to no more than 2°C,[3] the Court found that it had the authority to order the state to reduce its emissions in compliance with the low end of this range.[4]

The Plaintiffs’ Appeal

On November 24, 2020, the Plaintiffs filed an appeal with the Federal Court of Appeal, arguing that Justice Manson erred in finding no reasonable cause of action and in dismissing the claim without providing the Plaintiffs an opportunity to amend their claim.

If the Plaintiffs are successful in overturning the lower court’s decision, the issue of whether the courts have authority to obligate a minimum standard of emissions reduction could be further considered at trial.

If the Plaintiffs are unsuccessful at the Court of Appeal, their only remaining avenue to having their claim heard is via an appeal to the Supreme Court of Canada. While in 2010, Canada’s highest court refused to hear an appeal regarding the justiciability of the evaluation of the content of a climate change plan,[5] much has changed over the last decade. For instance, in 2015, the Paris Agreement saw Canada and 195 other countries collectively agree to limit the global average temperature warming to well below 2°C above pre-industrial levels and to pursue efforts to limit the increase to 1.5°C.

More recently, in the to-be-decided reference case regarding the constitutionality of the Greenhouse Gas Pollution Pricing Act, the federal government’s defence was posited on the idea that the cumulative dimensions of GHG emissions are a matter of national concern.  In its written submissions, the Attorney General of Canada made the following case for taking action to reduce GHG emissions:

Global climate change is happening now. The decisions we make today are critical to ensuring a safe and sustainable world for everyone, now and in the future. … Global net human-caused GHG emissions must fall by about 45% from 2010 levels by 2030 and reach “net zero” around 2050 to limit global warming to 1.5˚C and avoid the significantly more deleterious impacts of exceeding this temperature threshold. Thus, GHG emissions create a risk of harm to human health and the environment upon which life depends.[6]

The level of global reduction noted by the Attorney General, which stems from the IPCC’s 2018 Special Report on the Impacts of Global Warming, is markedly more ambitious than Canada’s present emissions reduction target. As noted in the Plaintiffs’ Statement of Claim, Canada has failed to fulfill its own commitments to limit GHG emissions under a variety of international agreements and covenants over the last thirty years. To date, the federal government has neither made substantive progress towards its present 2030 target nor enacted a more stringent 2030 target that meets the level of ambition called for by the IPCC.

Will the Plaintiffs have an opportunity to fully present their claim in court and argue that Canada should be held accountable for its continued failure to meet its domestic and international climate obligations? This will soon be a question for the Court of Appeal to decide.

[1] La Rose v Canada, 2020 FC 1008.

[2] Atlantic Lottery v Corp Inc v Babstock, 2020 SCC 19 at para 19.

[3] As stated in the IPCC’s 4th assessment report. This target range was also inscribed in a resolution passed by countries that were parties to the Kyoto Protocol in 2010.

[4] https://theconversation.com/what-a-dutch-supreme-court-decision-on-climate-change-and-human-rights-means-for-canada-146383

[5] Friends of the Earth v Canada (Governor in Council), 2008 FC 1183, aff’d 2009 FCA 297.

[6] IN THE MATTER OF A REFERENCE to the Court of Appeal pursuant to section 8 of the Courts of Justice Act, RSO 1990, c. C.34, by Order-in-Council 1014/2018 respecting the constitutionality of the Greenhouse Gas Pollution Pricing Act, Part 5 of the Budget Implementation Act, 2018, No. 1, SC 2018, c. 12 (Factum of the Attorney General of Canada) at paras 7-8.