Groundbreaking climate case against federal government gets one step closer to trial

“A government cannot engage in conduct that will, or could reasonably be expected to, result in the future harm, suffering or death of a significant number of its own citizens.”

This passage from a lawsuit filed by 15 youth plaintiffs against the Canadian government sums up their case against Ottawa.

The legal argument was used in the United States during the COVID-19 pandemic, when many believed former president Donald Trump and his government should be held accountable for their failure to take proper protective measures as the spread of the virus led to widespread deaths and preventable illnesses across much of the country.

The same argument is being used against the Canadian government for its failure to act appropriately to reduce greenhouse gas emissions which also leads to serious harm to life, liberty and security of persons.

Ottawa might not directly cause wildfires, paralyzing heat waves and severe weather events, but its failure to significantly reduce Canada’s greenhouse gas emissions exacerbates wildfires, which last year led to the evacuation of approximately 200,000 Canadians.

One of those evacuees was Kira Young, a seventeen-year-old from Yellowknife. Young, as well as her entire Town with a population of 20,000, was evacuated as ash fell from an orange sky. As she and her family rushed to flee the town, fires burst out along the highway. Young was forced to stay in hotels and on friends' couches for more than a month before her family could return home.

Young is one of many forever impacted by the devastation. It has motivated her fight to hold the Canadian government accountable for the suffering caused by climate change. She is one of 15 youth plaintiffs continuing their case against the Justin Trudeau government for its failure to act appropriately in response to the climate crisis.

“Alongside youth across the North, I have witnessed and experienced the forefront of climate change that poses a monumental threat to humanity,” Young said in a press release. “I am joining the La Rose case because my generation and those to come are entitled to a planet that can sustain livelihoods, but also an environment that is conducive to harmony, peace, and integrity. Our leaders must be held accountable for the systemic violation of the rights of youth that is occuring today, because there is still time to secure a livable future.”

On May 31, the plaintiffs, represented by Catherine Boies Parker, K.C. and David Wu of Arvay Finlay LLP; Chris Tollefson and Anthony Ho of Tollefson Law Corporation; and Reidar Mogerman of Camp Fiorante Matthews Mogerman LLC, and supported by Our Children’s Trust, filed an amended statement of claim that puts a greater emphasis on the positive rights claim of the case.

“The primary difference is the claim is really focused on alleging that Canada has a positive duty under the Charter to protect the constitutional rights of the young plaintiffs,” Andrea Rodgers, Deputy Director at OurChildren’s Trust, told The Pointer. “The Court of Appeals said that if there's ever special circumstances that could impose such a duty on the government, it's climate change, we just need to prove that at trial.”

The right to be safe, free from harms is being tested.

Data published three years ago in the Canadian Medical Association Journal amplified the harm to young people caused by greenhouse gas emissions.

“Asthma is the most common chronic disease in children, with a Canadian prevalence of 15% to 25%,” the 2021 article, which pulled together research on the impacts of air pollution on childhood asthma, detailed.

“Asthma exacerbations reduce quality of life and are a leading cause of emergency department visits and hospital admissions. Whereas numerous risk factors for asthma exacerbations are known, identifying new, modifiable risk factors for onset of this condition could lead to primary prevention.”

“There is a clear association between asthma exacerbations and air pollution in those with previously diagnosed asthma,” but the researchers wanted to determine if new cases of asthma among children had a direct correlation with rates of pollution, looking at different cities in Ontario with different types of air quality.

Sarnia, where the surrounding area has the worst air quality in the country due to heavy industry in and around the municipality, was compared to other cities.

Screening for factors outside air pollution, “In this population-based study comparing 3 cities in southwestern Ontario that had varied levels of air pollution over 25 years, we observed a significantly lower cumulative incidence of asthma in London–Middlesex and Windsor compared with Lambton (Sarnia).”

“Our results suggest that children in Sarnia have an increased risk of developing asthma, which might be due to higher levels of air pollutants in this region.”

The analysis of data led the researchers to draw clear conclusions.

“Our results are similar to those of the few other studies that have explored and identified a relation between incidence of asthma and exposure to air pollution in children. However, because of its natural experimental design, our study strengthens these previous observations by showing an increased risk of asthma relative to regions with lower air pollution levels.”

The scientific evidence continues to grow, making it clear that young people are disproportionately being impacted by the effects of greenhouse gas emissions and other pollutants damaging the atmosphere.

The broader correlation with climate change is also becoming clearer, as diseases such as asthma, other respiratory disorders and conditions impacting a range of biological systems, on top of increasing effects on mental health and well being, are dealt with by young Canadians who will bear a much greater burden due to the behaviour of older Canadians.

This is the premise of the legal case by the 15 youth, against the federal government.

Now known as La Rose versus His Majesty the King (initially the Queen), it was originally brought forward in 2019, and was dismissed by the federal court in October 2020, ruling there was no reasonable chance for success.

“The Plaintiffs’ position fails on the basis that there are some questions that are so political that the Courts are incapable or unsuited to deal with them,” Justice Michael D. Manson wrote in the original decision. “While this is not to say a government policy or network of government programs cannot be subject to Charter review, in my view, the Plaintiffs’ approach of alleging an overly broad and unquantifiable number of actions and inactions on the part of the Defendants does not meet this threshold requirement and effectively attempts to subject a holistic policy response to climate change to Charter review.”

Unwilling to accept that interpretation, the youth immediately filed an appeal which was heard in February 2023, where they argued the case was indeed within the court’s jurisdiction under Section 7 and Section 15 of the Charter of Rights and Freedoms which grants Canadians the right to life, liberty and security “without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The youth argue these rights are being violated by failure to act appropriately and efficiently on the climate crisis.

The Federal Court of appeal overruled the initial decision, accepting the “justiciability”, or the court’s inherent jurisdiction over the matters central to the case.

“I do not agree, respectfully, that the claims are not justiciable simply because the question of climate change is complex or because the legislation reflects a political choice on how to address the problem,” Justice Donald J. Rennie, wrote in his December 13 decision. “While the legislation may be controversial, this does not efface the fact that the debate has been crystallized into law; legislative choices have been made.”

The decision contained guidance for how the plaintiffs needed to amend their statement of claim in order to have a chance at success. The first change was the omission of the claim under Section 15 of the Charter.

In his decision, Justice Rennie wrote that while he accepts that youth are disproportionately impacted by climate change, it would be an unprecedented use of Section 15 and “not the kind of gradual, incremental change by which the law evolves.”

The “positive rights claim” is novel (using an argument that the government “must” do something, compared to the much more common “negative rights claims” that deal with what the government “must not” do), but according to Justice Rennie not necessarily doomed to fail. Traditionally, the Charter has been interpreted as imposing negative rights on the government—the government cannot pass a law or policy that deprives its citizens of Section 7 rights. Canadian law does not currently establish protection of positive rights, but this could change if the case succeeds and becomes precedent.

“In addition to the deprivations of the plaintiffs’ life, liberty and security of person interests caused or contributed to by the defendants, the existential crisis posed by climate change constitute special circumstances which impose positive obligations on the defendants to protect the plaintiffs from further deprivations of their life, liberty and security of the person caused by GHG emissions,” the statement of claim reads. In other words, the government “must” protect against potential harms, instead of viewing the government as an authority that “must not” cause specific harms as a result of its policies. In this case it is also the lack of adequate policies that is under the legal microscope.

The plaintiffs argue they have a right to a Safe Climate System which the government must uphold through necessary climate action. Boies Parker, co-counsel for the plaintiffs, told The Pointer that positive rights do exist in Canada — think freedom of speech or the right to education — but a positive rights claim has never been successful under Section 7 of the Charter.

“What I generally mean when I talk about positive rights is where the government is required to do something, as opposed to just constrained from doing something. When you're saying the government must act, as opposed to the government cannot act,” she said. “And in this case, in other Charter cases, the courts are likely to recognize a positive right, where what's happening is there is a fundamental freedom that has been interfered with and that interference can only be stopped by the state taking some action.”

In the La Rose case, Boies Parker said there are both positive and negative rights claims. The negative rights claims are mandating that Canada stops supporting greenhouse gas intensive industries and stops pouring money into fossil fuels. But under positive rights, the Canadian government also has an obligation to take steps to ensure that all of the emissions in Canada are reduced to a level consistent with a safe climate system.

A lot has changed in the five years since the case was originally filed, both for the plaintiffs and Canadians in general. Since the Paris Agreement was signed in 2015, there has been a global consensus that we need to limit warming to 1.5 to 2 degrees above pre industrial levels. But more recent science has found that even at this degree of warming, there will be devastating and irreversible consequences across the globe. Even if we are able to keep temperatures to 1.5 degrees above pre industrial levels — which we are expected to reach in the next decade — sea levels are still expected to rise approximately 1.5 metres above 2000 levels, wiping out over five million homes. This is just one example of the catastrophic effects that cannot be turned around (many ocean systems are being completely transformed due to dramatic changes in chemical composition including major coral reefs that grew over hundreds of thousands of years and are now suddenly, effectively, dead).

Canada’s commitments to greenhouse gas reductions and other environmental measures are not strong enough to contribute our share of emissions decline. Canada’s own policies are not enough to meet the already weakened targets it has set for itself. The nationally determined contribution (NDC) under the Paris Agreement commits to reducing greenhouse gas emissions between 40 and 45 percent by 2030 and reaching net zero by 2050.

In December, Canada’s Environment Commissioner Jerry DeMarco released five damning audits showing the nation’s emissions reductions plan is failing. Despite a statement released by Environment and Climate Change Canada claiming the nation is on track to meet its interim target in 2026, the reports found Canada will not meet its 2030 emission target, missing the mark by almost 50 megatonnes of carbon dioxide equivalent emissions.

“Not only have the defendants failed in that duty, they have instead committed to a GHG emissions trajectory that has and will continue to cause or contribute to such catastrophic impacts,” the amended statement of claim reads.

According to the defendant’s projections, under a low emissions scenario, temperatures in Canada will be approximately 0.8 to 1.9 degrees warmer by 2031-2050 compared to a 1986-2005 baseline. Under a high emissions scenario, that would increase to 1.9 to 5.2 degrees warmer (a doomsday scenario).

The largest portion of Canada’s greenhouse gas emissions come from fossil fuel extraction. Canada is the fourth largest oil producer in the world, extracting an average of 5,576 barrels of crude oil per day and 17.9 billion cubic feet of natural gas each day. When combusted, these fossil fuels release approximately 868 million tonnes of carbon dioxide, according to the amended statement of claim. Taking into account downstream emissions, in 2022, Canada was responsible for 1,230 million metric tonnes of carbon dioxide in 2022 due to fossil fuel extraction, greater than the total territorial emissions of every country save China, the United States, India and Russia, which have far greater populations (India has 35 times the population).

Meanwhile, Canada continues to implement subpar policies, further limiting its ability to sustain a safe climate system. In 2018, the Liberal government implemented the Greenhouse Gas Pollution Pricing Act (GGPPA) recognizing the “‘polluter pays’ principle”. But the plaintiffs argue that the carbon price framework implemented is not consistent with a safe climate system.

According to the environmental law firm Ecojustice, carbon pricing is one of the most effective and affordable measures available to tackle climate change. But in the past year, Canada has carved out exemptions for various fossil fuel programs, such as home heating oil, which has carbon price opponents demanding the carbon tax be weakened even more, or scrapped altogether.

The federal government is also working to implement Clean Electricity Regulations (CER) to transition the nation to a low carbon energy economy. But early drafts of the regulations impose significant loopholes for fossil fuel industry players to continue emitting past 2035, despite the very purpose of the regulations: to create a net zero energy system by 2035. The regulations are not being written to achieve that target.

“Even the version of this policy that we saw in the summer was not strong enough to get Canada to zero emissions by 2035, but there will be millions of tonnes of carbon in the year 2035 and even into the 2040 decade with this policy,” Stephen Thomas, clean energy manager at the David Suzuki Foundation (DSF), previously told The Pointer. “The federal government says that they're still committed to meeting this target. But this policy won't get us there. And we don't see any other policy that they're developing in Canada that will fill in that gap.”

The draft of the CER allows a temporary exemption for new fossil fuel plants built after 2025 — that had significant investment prior — that would allow them to emit freely until at least 2045; and the possibility of generators purchasing offsetting credits as opposed to reducing actual emissions.

“Many things have changed. Many things are being done. And that's very positive, but not enough has changed to say that Canada's performing its constitutional obligations here,” Boies Parker said. “We're not asking the court to endorse any specific temperature target, we're asking the court to find that Canada has to make some decisions based on the best available science. It has to be based on what science tells us is consistent with what Canada needs to do.”

Rodgers says this case is just the beginning of what she believes will be a series of Canadian court cases focussed on environmental issues. Given Canada has failed to meet every one of the ten climate targets it has set since 1990, she believes the courts need to step in to determine what is and is not constitutionally permissible.

“The court will never tell them specifically what needs to be done, they will never say this policy is what needs to be implemented. But what they can do is they can say this is where the constitutional line is. And this is the line that you can't cross. So I think courts in Canada will be really important in that regard,” she said.

Currently a similar case against the Ontario government is awaiting an appeal decision. The Mathur case brought together seven young people from across Ontario who challenged the Cap and Trade Cancellation Act implemented when Premier Doug Ford was elected in 2018, significantly weakening the province’s emissions reductions targets. The appeal was heard in January after back and forth arguments dictated whether or not the case was “justiciable” (within the jurisdiction of the court).

Across the globe there has been a dramatic rise in climate justice cases filed against governments and corporations, according to a report from the United Nations Environment Programme and the Sabin Centre for Climate Change Law at Columbia University.

Since the publication of the first Global Climate Litigation Review Status Report in 2017, climate litigation has almost tripled, from 884 cases to 2,180 in 2022.

Boies Parker said she anticipates that when the amended statement of defence is received from the federal government in the fall (in response to the amended statement of claim) counsel for the Canadian government will argue everything it has done thus far to reduce emissions.

“But in this particular circumstance, when you have an existential threat to the well being of all Canadian children, including the plaintiffs, the fact that they're already doing a lot isn't necessarily sufficient to discharge their constitutional obligations,” she said.

She also predicts that while the appeal judge ruled the case was one that will be heard by the courts, the Canadian government will continue to argue against its justiciability. While she agrees that it is within the hands of the government to decide exactly what steps to take, she said the courts still have a role to play.

“This is much too important an issue to be left in politics”.

Email: rachel.morgan@thepointer.com

Twitter: @rachelnadia_

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Rachel Morgan, Local Journalism Initiative Reporter, The Pointer