Canada: Climate Change Suits Against the Government

Published on Jan 22, 2023

In recent years, governments in Canada have been sued in various ways in respect of climate change. Invariably, the government will seek to have the claim dismissed because it is not “justiciable”. Justiciability is a legal doctrine that applies when the subject matter of a case is too political in nature to be properly adjudicated by the courts. Justiciability recognizes the separation of powers between courts and legislatures and that some subjects – like making policy choices and legislating – are not appropriate for a court. Recent case law, including a B.C. Supreme Court decision released in January 2023, shows the limits of what courts have been willing to do when governments are sued regarding climate change.

Cases Which Were Not Justiciable

Numerous courts in Canada have held that the climate change cases before them were not justiciable.

In Misdzi Yikh v. Canada, two hereditary chiefs of a B.C. First Nation claimed the federal government breached the common law and constitution in failing to legislate to stop climate change. They sought wide-ranging relief, including an order requiring the government to amend its environmental assessment statutes to allow it to cancel approval for high greenhouse gas (GHG) emitting projects. The Federal Court struck the claim in 2020 on the basis that the issue was not justiciable, and stated that “[i]t is hard to imagine a more political issue than climate change.”

Similarly, in 2021, the Quebec Court of Appeal, in Environnement Jeunesse c. Procureur général du Canada, overturned a lower court’s holding that a proposed class action brought by a youth non-profit against the federal government was justiciable. The non-profit alleged that the Government of Canada was violating the fundamental rights of youth by failing to implement necessary measures to limit global warming. Among other remedies, the class action sought an order requiring the federal government to implement measures intended to curb climate change. While noting that no one was questioning the urgency of acting to avoid climate change, the Quebec Court of Appeal nevertheless held that the remedy sought would in effect force Parliament to act without indicating what action should be taken. Since Parliament is better placed to weigh the innumerable challenges of global warming, deference by the courts was required and the Quebec Court of Appeal held the claim was not justiciable. The Supreme Court of Canada denied leave to appeal.

Cases Which Were Justiciable

In other cases, courts have held that the matters raised were justiciable.

In its 2020 decision in Mathur v. Ontario, the Ontario Superior Court of Justice refused to strike out an application as not justiciable. The case was brought by youth in Ontario claiming, among other things, that a legislated target and plan for reducing GHG emissions were not stringent enough to combat climate change and infringed the constitutional rights of youth. Specifically, the case concerned provincial legislation passed in 2016 that implemented a cap and trade program for GHG emissions, and subsequent legislation, the Cap and Trade Cancellation Act, 2018, passed by the newly elected provincial government that repealed the 2016 legislation and put in place a plan to meet a more lenient target for GHG emission reductions by 2030. The youth sought, among other things, a declaration that the legislation repealing the cap and trade legislation without implementing an effective alternative was unconstitutional, and an order requiring the Ontario government to “set a science-based GHG reduction target under s. 3(1) of the Cancellation Act that is consistent with Ontario’s share of the minimum level of GHG reductions necessary to limit global warming to below 1.5 degrees Celsius above pre-industrial temperatures or, in the alternative, well below 2 degrees Celsius (i.e., the upper range of the Paris Agreement temperature standard)”.

The Ontario Superior Court held that the plan and target legislated by the Cancellation Act were not pure policy decisions, but were prima facie justiciable governmental actions as they were policy decisions that had been translated into law – namely the Cancellation Act – and governmental action was taken pursuant to that law. On that basis, the Superior Court refused to strike the matter at a preliminary stage, and the Divisional Court denied leave to appeal. A hearing on the merits proceeded in 2022 and the decision is currently under reserve.

Most recently, the B.C. Supreme Court in Sierra Club of British Columbia Foundation v. British Columbia (Minister of Environment and Climate Change Strategy) held that a challenge to compliance with B.C. legislation was justiciable. The case concerned B.C.’s Climate Change Accountability Act, which set GHG emissions targets and imposed a statutory obligation on the B.C. government to prepare an annual climate accountability report. The petitioner, Sierra Club, alleged that the 2021 climate accountability report breached the legislation because, among other reasons, it only included a plan to continue progressing towards meeting emissions reduction targets in 2030, but not in 2025, 2040 and 2050. The B.C. government contended that the matters were not justiciable, and in the alternative that its reporting reasonably complied with the legislation.

The B.C Supreme Court concluded that it was justiciable to assess what is required for the government to meet its statutory reporting obligations and whether those obligations were actually met. It held that it was being asked an appropriate legal question, namely the reasonable interpretation of legislation that established specific and mandatory reporting obligations upon the government. The B.C. Supreme Court was clear that it was not being asked to evaluate whether the provincial government’s climate change policies would be effective, but only whether the government reported the information it was statutorily required to provide.

In the result, the B.C. Supreme Court held that the provincial government had complied with the legislation, and accordingly dismissed Sierra Club’s petition. The Climate Change Accountability Act only required the government to provide GHG emissions information in respect of the current year and two subsequent years, not the detailed GHG emissions data for 2040 and 2050 that Sierra Club was really seeking. Even though the government had provided detailed GHG emissions estimates in respect of the 2030 emissions target (which showed that target would probably not be met), that was more information than the legislation required. The legislation did not obligate the government to provide similar detailed information regarding the 2025, 2040 and 2050 targets in its 2021 climate accountability report. The B.C. Supreme Court held that the information the government provided in respect of the targets for 2025 (which it was expected to miss), 2040 and 2050, reasonably complied with the legislation. It so held despite noting that if the government were required to disclose the information requested, this may contribute to the province actually meeting one of its targets “in a break from the consistent history of missing its targets”.

Closing Considerations

These climate change cases show clear limits on the ability of courts to address climate change when governmental action in respect of it has been challenged for being inadequate. Courts have only held that the matters before them are justiciable when they involve interpreting specific governmental actions that were mandated by legislation. Even then, courts have, so far, refrained from requiring governments to take any additional steps to address climate change beyond those already prescribed by legislation.

For more information concerning climate change or how it may impact businesses, please contact any member of our Dispute Resolution Group.