Bill 21 would enact the “Liability for Climate-Related Harms Act, 2018” (the “Act”), making fossil fuel producers strictly liable for climate-related harms occurring in Ontario. “Climate-related harms” are defined very broadly to include: economic loss or physical loss of property, infrastructure, structures, resources, or other assets; costs associated with obtaining and maintaining insurance reasonably required; death, injury, illness or other physical or psychological harms and the costs associated with treating or caring for persons suffering from them; harm related to ocean acidification; loss of land or damage to infrastructure due to rising sea levels; costs of monitoring, researching and analysing the climate and the weather; costs of responding to emergencies arising from natural disasters associated with climate change; costs of constructing, renovating, repairing or improving infrastructure in order to minimize further such harms and costs; and, costs of carrying out public education campaigns to inform the public about reducing and avoiding such harms and costs.
The Act would also ease a number of evidentiary burdens for a plaintiff seeking to establish causal links between climate change and weather events or certain harms. This Act is reminiscent of legislation introduced in Ontario, British Columbia, and other provinces that enables provincial governments to sue tobacco companies to recover the healthcare costs associated with smoking.
However, as a private bill, it is unlikely that Bill 21 will be passed. Even if it is enacted, in this or a similar form, the Act would not pave the way for easy court victories against fossil fuel producers, as the drawn-out (and ongoing) court battle against tobacco companies sued under BC’s Tobacco Damages and Health Care Costs Recovery Act has demonstrated.
The introduction of Bill 21 brings the likelihood of litigation against fossil fuel producers for their contribution to climate change one step closer to reality. In that sense, Bill 21 represents an important symbolic development in the nascent field of climate litigation, which has seen a flurry of recent activity, particular south of the border and in other parts of the world.