Climate Change Litigation in Canada: Environnement Jeunesse v. Canada

Climate Change Litigation in Canada: Environnement Jeunesse v. Canada

Climate Change Litigation in Canada: Environnement Jeunesse v. Canada

This past November, ENvironnement JEUnesse (ENJEU), an environmental nonprofit in Quebec, applied to bring a class action lawsuit against the Government of Canada (GOC) on behalf of Quebec citizens aged 35 and under.[1] The claim alleges the GOC has failed to take sufficient action to reduce greenhouse gas (GHG) emissions in the face of climate change and therefore failed to protect the fundamental rights of Quebec youth under both the Canadian Charter of Rights and Freedoms (Charter) and Quebec’s Charter of Human Rights and Freedoms (Quebec Charter). If permitted to proceed, the claim seeks various declaratory orders and punitive damages.[2]

Climate change litigation is still in its infancy, both globally and at home. However, the ENJEU case could represent a significant step forward for climate litigation in Canada. Recent trends suggest that litigation is poised to break through as a powerful tool in the fight against climate change, with successful cases emerging out of The Netherlands (Urgenda Foundation v. The State of the Netherlands), Pakistan (Leghari v. Federation of Pakistan) and Colombia (Decision C-03516 of February 8, 2016) in the past few years.[3] The Sabin Centre for Climate Change estimates that more than 1000 climate cases have now been commenced worldwide. Meanwhile in Canada, the City of Victoria (along with a number of other B.C. municipalities) is considering a class action lawsuit against fossil fuel companies for the costs associated with climate change.[4]

A recent report from the United Nations Environment Programme suggests there are two reasons for this growth.[5] First, there are a growing number of national and sub-national laws that address climate change directly. These help to provide a foothold for those seeking to hold governments and corporations to account.[6] Second, the 2015 Paris Agreement produced a legal basis or standard against which we can evaluate the adequacy of national laws and policies.[7] The Paris Agreement sets the goal of limiting global temperature rise to less than 2°C (above pre-industrial levels). Among other things, it requires all ratifying parties to produce “nationally determined contributions” (i.e. national climate plans including specific targets) and report regularly on their emissions and implementation efforts. As a result, it plays a “cohering role” and provides a global context for national mitigation efforts.[8]

In this instance, the ENJEU case relies upon (among other things) the GOC’s failure to meet its international climate commitments, including the Paris Agreement, to argue that it is failing in its obligations to protect its citizens. Regardless of the outcome, the ENJEU case represents a new era in Canada’s climate litigation landscape. This blog post aims to takes a closer look at the ENJEU case and its likelihood of success with respect to the Charter claims. Note that, due to jurisdiction issues, the Quebec Charter will not be considered.

The ENJEU Case

The claim was commenced in the Superior Court of Quebec in Montreal on November 26, 2018. The representative claimant is Catherine Gauthier, Executive Director of ENJEU. The defendant is the GOC.

For brevity’s sake, the facts will not be reproduced in their entirety in this post (an unofficial translation of the claim can be found here). The thrust of the claim is that the GOC recognizes that climate change poses significant risks to human health, lives and livelihoods and acknowledges that the increase in temperature must be limited to less than 2°C to avoid dangerous climate change.

Moreover, over the past 25 years, the GOC has made four commitments to reduce GHG emissions through international agreements: United Nations Framework Convention on Climate Change (UNFCCC), 1992; Kyoto Protocol, 1997;  UNFCCC Copenhagen, 2009; and Paris Agreement, 2015. The GOC has either failed to meet its commitments, withdrawn from its commitments (e.g. Kyoto Protocol), or is not on track to meet its commitments. Regardless, the Paris Agreement target is grossly inadequate on its face and, even if implemented, will contribute to GHGs beyond levels that the GOC itself has identified as being necessary to prevent serious harm.

Based on these facts, the claim alleges that the GOC’s adoption of inadequate GHG emission targets violates the right of class members to life, liberty and security of the person protected by section 7 of the Charter and the right to equality for Quebec’s youth (as compared to its older citizens) pursuant to s. 15(1) of the Charter. These violations allegedly give rise to remedies pursuant to s. 24(1) of the Charter. The claim seeks various declaratory judgments and punitive damages, including declarations that the GOC violates the rights of the class members under the Charter and Quebec Charter, and orders for the cessation of these interferences and for remedial measures that will help to curb climate change.

Analysis: Does the Charter even apply?

At present, the claim is seeking authorization to proceed as a class action in Quebec. Authorization does not require an assessment of the merits, but rather asks whether the claimants have an arguable case. Presuming that authorization is granted, what sort of chance would this case have of succeeding at trial?

At the outset, one thorny issue that purports to plague claims of state-sponsored environmental harm is whether the Charter applies at all. The Charter only applies to government action and not to private entities or their actions. However, in the case of most environmental harms, it is often a third party that is responsible for the actual harm (e.g. release of contaminants). For example, in this instance, the release of the alleged GHG emissions comes from unnamed sources.

Nevertheless, this should not be a presumptive barrier to ENJEU’s claim. The courts have found that government action that facilitates or knowingly permits a third party to violate a person’s life, liberty or security of the person, may still violate s. 7 of the Charter.[9] The applicant must, however, demonstrate a “sufficiently” causal connection between government action and the alleged violation.[10] In this instance, the impugned government action is its failure to impose adequate emission reduction targets or, put another way, its imposition of inadequate emission reduction targets. The claimants will have to establish that this action is causally related to the alleged Charter violations.

Another issue that is commonly raised is whether the Charter can create positive environmental obligations. This question has yet to be resolved by the courts, although in Gosselin v. Quebec (Attorney General)[11] Chief Justice McLachlin specifically left the door open:  “I leave open the possibility that a positive obligation to sustain life, liberty, or security of person may be made out in special circumstances”.[12]

In the circumstances, however, this issue is mostly moot. Once a government chooses to legislate in an area, the scope of the legislation must be broad enough to actually protect Charter rights.[13] Governments at all levels in Canada have chosen to enact comprehensive environmental legislation and policies. In doing so, they have created a situation whereby these laws and policies must comply with the Charter.

With respect to the ENJEU case, the GOC has ratified, endorsed and/or entered into various international agreements with respect to GHG emission reductions and enacted various pieces of legislation, including the Greenhouse Gas Pollution Pricing Act[14] aimed at reducing GHG emissions. This would likely be sufficient to bring the government’s action (or inaction) within the scope of the Charter.

If we assume that the Charter is found to apply, the claim alleges violations of s. 7 and s. 15(1) of the Charter. While the Charter itself does not explicitly grant any rights to a clean and healthy environment, the language and case law with respect to section 7 and, to a lesser degree, section 15, suggests that the Charter may be read as implicitly providing some of these protections.

Section 7: Life, Liberty and Security of the Person

  1. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

A claimant seeking to establish a violation of section 7 must show that she has suffered a deprivation of life, liberty or security of the person and that such deprivation was not in accordance with the principles of fundamental justice.

Courts have found that the right to “life” refers to the entitlement to live (or be free from increased risk of death),[15] whereas the right to “liberty” includes freedom from physical restraint as well as the freedom to make fundamental personal choices such as where to live.[16] The term “security of the person” has been given a broad interpretation by the courts, and has been found to encompasses a right to bodily integrity and a right to be free from threats to that integrity, including risks to health and severe psychological stress.[17]

To date, no Canadian courts have found that substantive environmental rights are protected by section 7.[18] Yet, neither does the case law expressly preclude it. There have been cases where courts have hinted that, with the right facts, human health impacts from environmental causes may be covered by section 7 of the Charter.[19] Moreover, scholars generally agree that the scope of section 7 likely extends to protect members of the public from government decisions that cause provable physical or psychological health risks or impacts.[20] In this instance, the ENJEU case alleges that, among other things, government action has or will cause harm to the health of the class members, and may suffice to engage section 7.

Still, section 7 is not violated unless the deprivation of life, liberty or security of the person is inconsistent with the “principles of fundamental justice”. These refer to legal principles that are vital to the administration of justice.[21] They include both procedural guarantees (e.g. right to know the case against you) as well as substantive guarantees (e.g. sanctity of human life).[22]

In general, the case law with respect to “principles of fundamental justice” has developed mostly in the context of individual rights. However, the ENJEU case involves a yet-to-be-determined group of individuals under age 35.  What do the “principles of fundamental justice” look like and how do they apply when the affected parties are the public at large and cannot be determined in advance? Courts have yet to consider whether a different conception of “principles of fundamental justice” is required in instances where the threat is to the public, rather than individual rights.[23]

In any event, the ENJEU case alleges that the government’s violation of section 7 of the Charter is arbitrary and disproportionate and therefore contrary to the principles of justice. Both are previously accepted principles of justice. A law is arbitrary when it bears no relation to, or is inconsistent with, its stated objective.[24] There must be both a theoretical connection between the imposed limit and the legislative goals, as well as a real connection on the facts.[25] In this case, ENJEU will likely argue that, despite its stated goals of combating climate change, Canada’s GHG emission targets had no relation to actually achieving those goals (i.e. they were much too low).

Meanwhile, a law is disproportionate when it is not in furtherance of, or in proportion to, a legitimate state interest.[26] The claimants in ENJEU could argue that the GOC’s action on climate was not proportionate to Canada’s and/or the claimants’ interests or stated goals of keeping warming to below 2°C.

Finally, while not binding, international human rights law is also often used to assist Canadian courts with interpreting the rights and freedoms of the Charter. This is because, in general, Canadian courts prefer a construction that is consistent with Canada’s international legal obligations.[27] Reviews of both international law and regional human rights tribunals tend to provide support for the notion that state-sponsored environmental harm can amount to a violation of the right to life, among others.[28] Therefore, international law appears to lend support to ENJEU’s case.

Section 15: Equality before and under the Law

  1. 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 15 is not a means to assert a general right to health or a clean environment – it requires a comparison between the claimants and another group as well as evidence of discrimination. A claimant seeking to establish a violation of s. 15(1) must prove they experienced differential treatment that (1) originates from a law or government action and results in the loss of a benefit or the imposition of a burden; (2) is based on an enumerated ground (or something analogous); and (3) results in discrimination.[29]

The ENJEU case argues that the class members will experience differential treatment on the basis of age (an enumerated ground). Specifically, they will have to assume higher economic and social costs than their elders due to the actions of the GOC. On its face, the ENJEU case appears to potentially satisfy the elements of a s. 15 claim. One concern, however, is whether evidence of future effects (i.e. economic and social costs) is enough to ground evidence of discrimination today. Another concern is the evidentiary burden of actually establishing that future economic and social conditions will be worse.

Section 1:

  1. 1. The [Charter] guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Finally, in the event the claimants can establish a contravention of the principles of fundamental justice, then the GOC has one last chance to demonstrate that its impugned law or conduct should be sustained as a reasonable limit in a free and democratic society.[30] It is at this point that the GOC may argue that its GHG emission reduction measures are subject to limits such as economic tradeoffs, technical limitations and/or scientific consensus, and so forth.[31]

 

Other Challenges to the ENJEU Case

From a doctrinal perspective, there does not appear to be a prima facie reason why the ENJEU case could not successfully argue that, at the very least, the claimants’ section 7 rights are infringed. Yet, another hurdle for the case may be the issue of causation. For the claim to succeed it must prove that state action caused actual or threatened harm sufficient to qualify as a deprivation of life, liberty or security of the person.[32] The gradual and cumulative nature of environmental health impacts, as well as the scientific uncertainty with respect to chemical substances and biological processes, can pose significant challenges to a causation argument.[33]

Arguably, this is where the precautionary principle can provide guidance.  The precautionary principle holds that, in the face of scientific uncertainty, courts or other environmental decision-makers should err on the side of caution.[34] Or, as put by the Bergen Declaration on Sustainable Development: “[w]here there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation” or harm to human health.[35]

The precautionary principle is a recognized principle of international law and was cited by the Supreme Court in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town).[36] Professor Lynda M. Collins suggests that, when employing the precautionary principle, courts adjudicating environmental claims under the Charter should be willing to draw an inference of harmfulness where the government is unable to adduce evidence of safety.[37] In this particular instance, the application of the precautionary principle could be used to lessen the level of scientific certainty required from the claimants and put the onus on the GOC to show that the levels of GHG emissions permitted now and into the future are not harmful to human health.

Conclusion

The ENJEU case raises many novel and compelling issues. It is also part of a larger movement of climate change litigation that is gaining increasing momentum at home and around the globe. While the outcome of this case is yet to be determined, it is clear that there are building blocks in place with respect to the Charter and its relevant case law that could allow for this case to succeed. We look forward to watching what happens next.

[1] Environnement Jeunesse v. Canada (November 26, 2018), Montréal, 500-06, QC SCJ [ENJEU case].

[2] I. Peritz, “Quebec group sues federal government over climate change”, The Globe and Mail, November 26, 2018, online: https://www.theglobeandmail.com/canada/article-quebec-group-sues-federal-government-over-climate-change/.

[3] United Nations Environment Programme, May 2017, The Status of Climate Change Litigation – A Global Review, ISBN No. 978-92-807-3656-4, at 15-19 [UN Environment].

[4] Alastair Spriggs & Frances Bula, The Globe and Mail “City of Victoria recommends class-action lawsuit against the oil and gas industry”, January 21, 2019, accessed online: https://www.theglobeandmail.com/canada/british-columbia/article-city-of-victoria-recommends-class-action-lawsuit-against-the-oil-and/.

[5] UN Environment at 40.

[6] UN Environment at 40.

[7] UN Environment at 40.

[8] UN Environment at 40.

[9] Lynda M. Collins, “An Ecologically Literate Reading of the Canadian Charter of Rights and Freedoms” (2009) 26 Windsor Review of Legal and Social Issues 7 at 32.

[10] Collins at 32.

[11] 2002 SCC 82 [Gosselin].

[12] Gosselin quoted in Collins at 33.

[13] Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at para. 104; Dunmore v. Ontario (Attorney General), 2001 SCC 94 at para. 29 cited in Andrew Gage, “Public Health Hazards and Section 7 of the Charter” January 1, 2004, West Coast Environmental Law at 12.

[14] SC 2018, c 12, s 186.

[15] Collins at 22.

[16] Nickie Vlavianos, “Health, Human Rights and Resource Development in Alberta: Current and Emerging Law” October 2003, Human Rights and Resource Development Project at 16-17.

[17] Vlavianos at 17.

[18] Vlavianos at 14.

[19] Vlavianos 2 at 7.

[20] Vlavianos 2 at 7.

[21] Collins at 25.

[22] Collins at 25-27.

[23] Gage at 14.

[24] Chaoulli v. Quebec (Attorney General), 2005 SCC 35 quoted in Collins at 28.

[25] Collins at 28.

[26] Collins at 30.

[27] Collins at 9.

[28] Nickie Vlavianos, “The Intersection of Human Rights Law and Environmental Law”, March 23-24, 2012, 2 at 9; Collins at 17.

[29] Vlavianos at 19.

[30] Collins at 31.

[31] Collins at 31.

[32] Collins at 42.

[33] Collins at 42, Vlavianos at 20.

[34] Collins at 46.

[35] Bergen Ministerial Declaration on Sustainable Development in the ECE Region, GA Res. 44/228, UN GAOR, 1990, UN Doc. A/CONF. 151/PC/10 cited in Collins at 46.

[36] 2001 SCC 40 [Spraytech].

[37] Collins at 47.

 

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