By Virginia Raffaeli
|Law Applied:||Constitutional Law; International Human Rights Law; Canadian Charter or Rights and Freedoms; Constitution of Canada.|
|Key words:||Human Rights; Mitigation; Just Transition; Public Trust.|
Court(s): Federal Court; Federal Court of Appeal
Dissenting Judgement: No
Filing Date: 2019
Last Update: 2021
Whether a group of Canadian youths raised valid causes of action under the Canadian Charter of Rights and Freedoms [Charter] or under the “public trust doctrine” on the grounds that Canada violated their rights by failing to take sufficient action on climate change .
In October 2019, fifteen youths brought a claim against the Queen and the Attorney General of Canada in which they alleged that Canada emits and contributes to the emitting of greenhouse gases in a way that is “incompatible with a stable climate” .
On October 27, while recognising that “the negative impact of climate change to the Plaintiffs and all Canadians is significant, both now and looking forward into the future,” Justice Michael D. Manson of the Federal Court of Canada granted the government’s motion to dismiss the plaintiffs’ claim.
On November 24 2020, the Plaintiffs filed their Notice of Appeal with the Federal Court of Appeals. On May 3, 2021, the plaintiffs filed their opening brief arguing that the Federal Court had incorrectly struck their claims.
THE ARGUMENTS OF THE PARTIES
The Plaintiffs’ Arguments:
- The Plaintiffs collectively argued that climate change has “negatively impacted their physical, mental and social health and well-being” . They also alleged that it has “threatened their homes, cultural heritage and their hopes and aspirations for the future” . They claimed that as children and youth they were particularly vulnerable to climate change and that they carried a disproportionate share of the burden imposed by the climate crisis .
- The Plaintiffs argued that there is a clear and scientifically proven link between greenhouse gas emissions (GHG) and climate change , and that Canada had: a) caused, contributed to, and allowed levels of GHG emissions that are incompatible with a “stable climate system” ; b) adopted GHG emission targets that are incompatible with scientific evidence regarding necessary reduction targets ; c) failed to meet its own national GHG reduction targets under a variety of international agreements and conventions they made between 1988 and 2015 ; and d) actively participated in and supported the development, expansion, and operations of fossil fuel industries and activities whose emissions are incompatible with a stable climate .
- On these grounds it was claimed that: a) Canada’s actions violated their rights – and the rights of all present and future children and youth in Canada – under Section 7 (which protects the rights to life, liberty and security) and Section 15 of the Charter, which provides that every individual is equal under the law ; and b) that under the public trust doctrine Canada had breached an alleged common law and unwritten constitutional law obligation to “preserve and protect the integrity of inherently public resources” . The Plaintiffs relied on Youth Environment v. Attorney General of Canada, 2019 QCCS 2885 as a case which demonstrates that “constitutional claims about climate action are justiciable”.
- The Plaintiffs thus sought a) declaratory relief; b) an order requiring the government to adopt and implement a Climate Recovery Plan that was consistent with Canada’s share of responsibility to reduce global emissions; and c) requested that the Court retain jurisdiction to ensure the plan was implemented .
The Defendant’s Arguments:
- On February 7, 2020 the Canadian government filed a statement of defence in which they acknowledged that a) change is “serious, real and measurable” ; b) it particularly threatens Indigenous cultures and communities ; and c) that “the negative impact of climate change to the Plaintiffs and all Canadians is significant, both now and looking forward into the future” .
- However, they argued that a) the plaintiffs lacked public interest standing; and b) that their claims were not justiciable, on the grounds that they were too broad since, according to the Defendants, the Plaintiffs were “effectively seeking that [the] Court intervene in Canada’s overall approach to climate policy” . They also argued that c) the remedies sought by the Plaintiffs were not legal remedies . The Defendants also alleged that d) the claim did not disclose a reasonable cause of action; and that e) there was no cause for action under the public trust doctrine in Canadian Law .
- Finally, the Defendants argued that the Charter claims were “speculative because they were incapable of proof due to the cumulative and global nature of climate change” .
Although the Judge explicitly stated that his decision should not be taken as suggesting that “the Defendants should not be responsible or accountable in addressing climate change” , and dismissed the Defendants’ arguments concerning the speculative nature of the claims on the grounds that “Canada’s role in GHG emissions is not speculative” , the Judge dismissed the case and ruled that :
- The Plaintiffs’ claims that Canada’s conduct violated their rights under the Charter of Rights and Freedoms were not justiciable and stated no reasonable cause of action . According to the Judge, the Plaintiff’s position failed on the basis that a) “there are some questions that are so political that the Courts are incapable or unsuited to deal with them”, such as public policy approaches ; and b) they alleged “an overly broad and unquantifiable number of actions and inactions on the part of the Defendants”, and did not identify a particular law that burdened youth unfairly . Furthermore, the Court stated that their findings on justiciability were supported both by the “undue breadth and diffuse nature of the Impugned Conduct and the inappropriate remedies sought by the Plaintiffs” .
Firstly, the Plaintiffs were effectively seeking judicial involved in Canada’s overall policy response to climate change , which fell outside the scope of the Court’s power. According to the Judge, not only was Youth Environment not binding on the Federal Court, but it was also of no assistance to the court due to the differences in the breadth of the conduct alleged in the two cases .
Secondly, the Judge agreed with the Defendants that while the remedies available for Charter claims are broad, “the proposed remedies in this case are not legitimate within the framework of Canada’s constitutional democracy” . According to the Judge, the remedies sought by the Plaintiffs a) did not address the constitutionality of the Impugned Conduct ; b) did not address the underlying harms created by law or state action ; and c) represented an incursion into the policy-making functions of the executive and legislative branches of government .
- However, the Judge found that the Plaintiffs’ claims that the government’s conduct violated the public trust doctrine was justiciable , on the grounds that it was clearly a legal question . In this regard, the Judge concluded, nevertheless, that the existence of a public trust doctrine, as pleaded by the Plaintiffs, was not supported in Canadian law . Furthermore, the Judge similarly found that this claim also disclosed no reasonable cause of action because it was extensive, had no definable limits, and was not consistent with incremental evolutions in the law .
- While not determinative, the Judge did acknowledge that the children might have reason to claim that the state owed them both positive and negative rights under the Charter .
Please find the full judgement here.
Last edited on 23 May 2022; with thanks to the case editor, Sadiyah Ahmed.
REFERENCES La Rose v Canada, Judgement, 2020 FC 1008, T-1750-19, 27 October 2020, (hereafter “Judgement”), para. 5.
 Ibid., para. 6.
 Ibid., para. 2. The impact of climate change on the individual Plaintiffs is set out in paragraphs 94 to 221 of the Plaintiffs’ Statement of Claim, available at https://davidsuzuki.org/wp-content/uploads/2019/10/Statement-of-Claim-2019-10-25-FILED.pdf [Accessed 23 May 2022].
 Judgement, para. 2.
 Ibid., para. 79.
 Ibid., para. 3.
 Ibid., paras. 6, 8
 Ibid., para. 8.
 Ibid., para. 10. See also paras. 52 to 63 of the Plaintiffs’ Statement of Claim.
 Ibid., para. 8.
 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, Sections 7 and 15. See Judgement, para. 7.
 Judgement, paras. 7, 81.
 Ibid., para. 47.
 Ibid., para. 12. See para. 222 of the Plaintiffs’ Statement of Claim.
 Judgement, para. 4.
 Ibid., para 4.
 Ibid., para. 22. See also Rule 221 of the Federal Courts Rules, SOR/98-106.
 Ibid., para. 22.
 Ibid., para. 74.
 Ibid., para. 48.
 Ibid., paras. 73, 75.
 Ibid., p. 38.
 Ibid., para. 26.
 Ibid., para. 40.
 Ibid., para. 41.
 Ibid., para. 44.
 Ibid., para. 47.
 Ibid., para. 50.
 Ibid., para. 51.
 Ibid., para. 52.
 Ibid., para. 55.
 Ibid., para. 26.
 Ibid., para. 58.
 Ibid., para. 59.
 Ibid., paras 88, 96-100.
 Ibid., paras. 65-72.