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Numerous climate change actions have been brought against governmental entities globally within the past decade with increasing frequency. In Canada, three actions have been brought against the Canadian government within the past three years for insufficient action to reduce greenhouse gas emissions (GHG).

The first, ENvironnement JEUnesse v Procureur General du Canada, was a Quebec case filed in 2018. The environmental non-profit ENVironment JEUnesse sought authorization to certify a class action on behalf of people in Quebec aged 35 and under against the Canadian government. ENvironnement JEUnesse alleged violations of the class members’ rights to a healthy environment and Charter violations of both the Canadian Charter and Quebec Charter that provide the right to life, liberty, and security. On July 15, 2019 Siskinds previously blogged on this decision and whether a healthy environment is a fundamental right of citizens.

The decision regarding certification was released by the Quebec Superior Court on July 11, 2019. In denying certification, the judge stated that while the case was justiciable and within the courts’ power to determine, a class action was not the proper procedure. In other words, the judge determined that the case was within the court’s jurisdiction and was not a purely political matter. However, certification was denied because the judge found that class members would have to be aged 18 (age of majority) or older in order for the action to continue. The judge questioned the rationale of the age restriction:

In having regard to the nature of the class action that ENVironment JEUnesse seeks to exercise and the nature of the alleged infringements of the fundamental rights of the putative members, the choice of the age of 35 by ENVironment JEUnesse as the maximum age of members, leaves the Tribunal perplexed … Why choose 35 years? Why not 20, 30 or 40? Why not 60?

The proposed class was thus deemed arbitrary, subjective, and inappropriate. The decision is currently waiting to be granted appeal before the Appeal Court of Quebec.

The other two cases are also both Charter claims but are not class actions. The first is La Rose et al v Canada (AG), which was filed in the federal court in October 2019. In that case, a group of 15 children and youth claim that the Canadian government caused and contributed to GHG emissions that are incompatible with a stable climate system, failed to adopt GHG targets consistent with the best available science, failed to meet the government’s own GHG emissions targets, and actively participated in industries and activities that contributed to GHG emissions incompatible with a stable climate.

The Plaintiffs in La Rose are seeking an order declaring that the government has a duty to act in a manner compatible with maintaining a stable climate. The Plaintiffs also seek a declaration that the children and youths’ rights have been infringed upon pursuant to sections 7 and 15 of the Charter and that the government is breaching its obligation to protect the integrity of public resources. The sought declaration includes affirmative actions, including that the government must properly take account of Canada’s GHG emissions and that the government put in place a climate recovery plan. Finally, the claim seeks an order that the courts have jurisdiction to ensure that the government complies with the order.

The second case is Mathur et al v Ontario (AG), which was filed in the Ontario Superior Court of Justice in November 2019. In that case, a group of seven youth also claim infringement of sections 7 and 15 of the Charter. Additional similarities to La Rose include the Plaintiffs seeking: a declaration that their rights have been infringed upon pursuant to sections 7 and 15 of the Charter, a violation of unwritten constitutional principles that the government will not engage in conduct that results in future harm, that sections of the Constitution Act that allowed for more lenient targets of the Paris Agreement are unconstitutional and of no force and effect, and that Ontario implement a GHG reduction target and revise its climate plan.

Section 7 of the Charter states as follows:

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.

Section 15(1) of the Charter states as follows:

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.

These cases, if successful, would provide precedent for citizens to bring actions against the Canadian government for failure to comply with GHG emissions targets. More broadly, such litigation would provide a legal mechanism for citizens to demand a right to clean air and healthy environment. That children and youth are at the forefront of many of these lawsuits against governmental entities suggests the increasing mobilization of the younger generations to protect the earth and act. Whether the courts will find it has jurisdiction to determine cases relating to climate protection and a right to a “healthy” environment will be clarified by the decisions of these three cases.

This article was written with the assistance of our articling student Terra Duchene.

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