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On November 26, 2018 ENvironnement JEUnesse (“ENJEU”)[1] filed an application for authorization against the Government of Canada to bring a class action on behalf of all Quebec residents aged 35 and under claiming a right to a clean and healthy environment. The claim alleged that the Canadian government is infringing on a generation’s fundamental rights due to its failure to implement appropriate greenhouse gas reduction targets to avoid the impacts of climate change. This infringement by the Government of Canada is claimed to have failed to protect the fundamental rights of Quebec youth under the Canadian Charter of Rights and Freedoms (Charter) and Quebec’s Charter of Human Rights and Freedoms (Quebec Charter).

On June 6, 2019 ENJEU presented its arguments seeking authorization of the class action to the Superior Court of Quebec.

The claim alleged that the Government of Canada acknowledged that climate change poses significant risks to human health, lives and livelihoods of individuals and acknowledges that any increase in temperature must be limited to less than 2°C. The Government of Canada has made four commitments to reduce greenhouse gas emissions through a series of the following international agreements: United Nations Framework Convention on Climate Change (UNFCCC), 1992; Kyoto Protocol, 1997; UNFCCC Copenhagen, 2009; and Paris Agreement, 2015.

ENJEU alleged that the Government of Canada either failed to meet its commitments, withdrew from its commitments (e.g. Kyoto Protocol), or is currently not on track to meet its international commitments. Further, ENJEU claimed that the Paris Agreement target is inadequate on its face and, even if implemented, will continue to contribute greenhouse gases beyond levels already identified by the Government of Canada to result in harm.

The ENJEU claim alleged that the Government of Canada adopted inadequate greenhouse gas emission targets and violated 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 pursuant to section 15(1) of the Charter. One of the remedies sought by ENJEU is an order requiring the implementation of remedial measures to mitigate the effects of climate change.

On July 12, 2019 Justice Gary D.D. Morrison of the Superior Court of Quebec released his decision refusing to grant ENvironnement JEUnesse’s authorization to institute its class action against the Government of Canada.

According to Judge Morrison, “[i]n having regard to the nature of the class action that [ENvironnement 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 [ENvironnement JEUnesse] as the maximum age of members, leaves the Tribunal perplexed. […] But why choose 35 years? Why not 20, 30 or 40? Why not 60? “

ENJEU has indicated its intention to appeal the judgment.

Climate change litigation is becoming increasingly more frequent in Canada and internationally. Several global cases have confirmed that the use of litigation can be used as a means of implementing changes to promote the fight against climate change. In the Netherlands for example (Urgenda Foundation v. The State of the Netherlands) the government was required to adopt a plan to ensure that its climate change targets were being met. Similar results were confirmed in Pakistan (Leghari v. Federation of Pakistan) and Colombia (Decision C-03516 of February 8, 2016).

The ENJEU claim is not entirely novel. The courts have held previously that a 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.[2] One of the tests to be successful in such a claim is that it must demonstrate a “sufficiently” causal connection between government action and the alleged violation.

The question that remains unanswered is whether the Charter can effectively be used to create environmental obligations. However, in the case of Gosselin v. Quebec (Attorney General) Chief Justice McLachlin appeared to leave the door open for such challenges when she stated: “I leave open the possibility that a positive obligation to sustain life, liberty, or security of person may be made out in special circumstances”.

While the Charter itself does not explicitly grant any right to a clean and healthy environment, the language and case law with respect to section 7 and, to a lesser extent, section 15, suggests that the Charter may be read as implicitly to provide many of these protections.

However, the Canadian courts have not yet confirmed that substantive environmental rights are protected by section 7 of the Charter. It is important to note that the courts have not expressly precluded such a claim. There are cases where courts have indicated that, with the right facts, human health impacts from environmental causes may in fact fall under the protection provisions of section 7 of the Charter.[3]

Section 7 however is not violated unless the deprivation of life, liberty or security of the person is inconsistent with the “principles of fundamental justice”. The case law with respect to “principles of fundamental justice” has developed primarily in the context of individual rights. Also, the courts have not yet determined whether “principles of fundamental justice” is required in instances where the threat is to the public rights, rather than individual rights.

Section 15 does not provide a mechanism where a general right to health or a clean environment can be declared. Section 15 requires a comparison to occur between the claimants alleging the harm and another group to show some type of discrimination. In other words, someone who is seeking to establish a violation of section 15(1) must show that they experienced differential treatment that: (i) originates from a law or government action and results in the loss of a benefit or the imposition of a burden; (ii) is based on an enumerated ground (or something analogous); and (iii) results in discrimination.

Where it can be established that a contravention of the principles of fundamental justice the Government of Canada can demonstrate that its impugned law or conduct should be sustained as a reasonable limit in a free and democratic society.

Despite the ENJEU case failing at the authorization stage it is becoming increasingly apparent that the opportunity exists to use the Charter and case law to allow cases alleging rights to a clean and healthy environment to be brought before the courts. We are interested in following this case to determine whether ENJEU’s appeal of the authorization decision can be successful.

[1] For nearly 40 years, the non-profit organization ENvironnement JEUnesse has been acting to raise awareness on environmental issues among Quebec’s youth, empower them through educational workshops, and encourage them to take action in their communities. ENvironnement JEUnesse has been intervening on climate issues for nearly 30 years now, in addition to speaking for Quebec’s youth at the Conference of the Parties of the United Nations Framework Convention on Climate Change since 2005.

[2] 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.

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

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