by Temi Lawal
|Law Applied||Civil Law; Constitutional Law; Domestic Human Rights Law; Canadian Charter or Rights and Freedoms; Quebec Charter or Rights and Freedoms; Quebec Code of Civil Procedure.|
|Key Words||States; Human Rights; Mitigation; Climate Justice.|
Court(s): Quebec Court of Appeal, Quebec Superior Court
Dissenting Judgement? No
Filing Date: 2018
Last Update: 2022
Whether the Canadian Government has failed in its duty to protect the fundamental human rights of young Quebecers (who were aged 35 and under) by not setting appropriate greenhouse gas (GHG) emission targets.
Whether Environment Jeunesse can institute a class action on behalf of young Quebecers against the Canadian Government in this regard.
A non-profit climate change Non Governmental Organisation (NGO) based in Quebec (“the Appellant”), made an application before the Superior Court of Quebec in the Montreal District of Canada for leave to institute a class action on behalf of young Quebecers against the Canadian Government.
The Appellant alleged that the Government of Canada has negligently failed in its duty to safeguard the fundamental human right to “life, inviolability, and security” of young Quebecers through not setting appropriate GHG emissions targets, despite the several commitments made at international level to reduce emissions. These rights are guaranteed by the Canadian Charter of Rights and Freedoms  and the Charter of Human Rights and Freedoms (“Quebec Charter”) .
Leave for the class action was sought to obtain a declaratory judgement stating that the Government had failed in its duty and punitive damages for reparations. The application was dismissed at the Quebec Superior Court and the Quebec Court of Appeal, albeit for different reasons.
THE ARGUMENTS OF THE PARTIES
Court of First Instance
At the Court of first instance, the Appellant argued that although the Canadian Government admits the urgency of the GHG emissions situation and its duty to act accordingly, it has continually failed to control or decrease its GHG emissions in line with international commitments. Current GHG emissions reduction targets, which the Canadian Government has set, will only contribute to increases in emissions.
On appeal, the Appellant argued that the Court of first instance erred in finding that the class description (aged 35 and under) was “arbitrary” and “not objective” and thus, constitutes a bar to the class action . Further, the Judge erred in finding that the application for certification of the class action was unwarranted and in failing to rule on the other criteria for class action certification.
Quebec Superior Court
At the Quebec Superior Court, the Respondent argued inter alia that the class action submitted by the Appellant is “neither an appropriate nor an effective remedy” to obtain the reliefs sought . The Respondent further argued that the proposed class action is not justiciable as the Court lacks jurisdiction over matters bordering on legislative duties. In essence, the Court cannot pronounce on certain matters that fall within the legislative authority.
1. At the Appellate Court, in addition to challenging all grounds of appeal, the Respondent argued that the Trial Court erred in its first decision, as though the Court was correct in dismissing the Appellant’s application for leave to institute a class action, the decision was reached erroneously.
Instead, the decision should have been arrived at based on the grounds that the Appellant had not “shown an appearance of right”  as provided in Article 575(2) of the Quebec Code of Civil Procedure (C.C.P) , i.e. conditions to be fulfilled before a class action can be instituted in Quebec. The “Appearance of Right” conditions in the C.C.P were not fulfilled as “the action [was] not justiciable,” “the government [could not] be sued for its failure to legislate,” and “the alleged facts [were] hypothetical” 
2. Concerning the human rights provisions in Sections 7 and 15 of the Canadian Charter  on which the Appellant has relied, there is no positive obligation on the State of Canada to legislate to protect human rights. The State is only obliged to acknowledge and respect those rights in exercising its legislative powers.
3. The Quebec Charter  could not be relied upon by the Appellant either as the Appellant’s cause of action would fail under the Crown Liability and Proceedings Act , which only subjects the Federal Government of Canada to Civil Law when the cause of action relates to property in its custody or the liability of a Federal Government employee.
4. A declaratory judgement would be hasty because there is no reason to believe that the facts alleged in the Appellant’s application will come to pass. Moreover, the alleged facts could occur even if Canada fully complied with all its international commitments as solving the problem of climate change remains a global collective effort.
Quebec Superior Court:
At the Court of first instance, Environment Jeunesse’s application for leave to institute the class action against the Canadian Government was dismissed.
In reaching that decision, the Honourable Gary D.D. Morrison, J.S.C., who presided over the hearing, noted that whilst the application was justiciable due to the adverse impacts of climate change on human rights, the age cut-off (35 years and below) was “arbitrary” and “not objective” .
According to the Judge:
“Jeunesse’s decision to cap the age of members at 35, to exclude millions of other Quebecers because of their age, and to include almost all Quebec minors represents a purely subjective and arbitrary choice. No objective and rational explanation has been provided… Jeunesse did not explain the reasonableness of this choice. One of the arguments advanced by Jeunesse in this regard is that the youngest residents of Quebec will suffer more infringements of their human rights, and, furthermore, Canada has already confirmed that the present generation must act to protect future generations. Jeunesse argues that for younger residents, experiencing more infringements than other residents is, in itself, a violation of their right to equality. But why choose 35? Why not 20, 30, or 40? Why not 60?” .
Quebec Court of Appeal:
The appeal was dismissed by the Court of Appeal.
- On the issue of justiciability, the Quebec Court of Appeal held that the Quebec Superior Court was right to dismiss the application for leave. However, the Trial Judge erred in finding the action justiciable as he should have pronounced on the justiciability of the class action based on the criteria set out in Article 575(2) of the Quebec Code of Civil Procedure , as Environment Jeunesse had not fulfilled the conditions therein.
- Further, the Court of Appeal held that Environment Jeunesse’s application was an attempt to get the Court to compel legislative action. The application had to be dismissed because the Courts have no say in the legislative lawmaking process considering the doctrine of Separation of Powers. This would have been different if the Appellant had been contesting a legal provision, as the legislature is expected to respect the rights embedded in the Canadian Charter in the lawmaking process . In that regard, Section 52 of the Constitution Act places an obligation on the Courts to invalidate any legislative enactment contrary to the Canadian Constitution’s provisions .
According to the Court:
“…the declaratory findings sought demonstrate a desire to invite the court into the sphere of legislative power and complex social and economic policy choices. Ordering an end to inaction is tantamount to forcing the government to act, and the findings suggesting that remedial measures be substituted for exemplary damages force the courts to interfere with the choice of measures…even if it were to be found that the courts could do so, the generality of the findings sought is so imprecise as to give no means for their implementation through enforceable orders…The Appellant offers nothing concrete, nothing specific” .
- On the class composition, the Court of Appeal, reaffirming the Trial Judge’s decision, held:
“…It must be noted that the class proposed by the Appellant seems arbitrary, especially insofar as its theory of the case on age discrimination cannot be accepted…it is difficult to establish a breach of equality, especially since the phenomenon of global warming is a reality that affects the entire Canadian population.” 
Following the dismissal by the Quebec Court of Appeal, the Appellant has appealed to the Supreme Court of Canada.
| 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.|
 Charter of Human Rights and Freedoms, 1976, CQLR c C-12.
 ENvironnement JEUnesse v. Attorney General of Canada, Appeal Judgement  QCCA 1871, para. 17, Available at http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190816_500-06-000955-183_appeal.pdf, [Accessed 23 May 2022].
 Ibid., para. 11.
 Ibid., para. 19.
 Code of Civil Procedure, 2014, CQLR c C-25.01.
 ENvironnement JEUnesse v. Attorney General of Canada, Appeal Judgement, para. 19.
 Canadian Charter of Rights and Freedoms, sections 7 & 15.
 Charter of Human Rights and Freedoms.
 Crown Liability and Proceedings Act, 1985, R.S.C., c. C-50.
 ENvironnement JEUnesse v. Attorney General of Canada, Judgement  QCCS 2885, para 135, Available at https://climate-laws.org/rails/active_storage/blobs/eyJfcmFpbHMiOnsibWVzc2FnZSI6IkJBaHBBdEVPIiwiZXhwIjpudWxsLCJwdXIiOiJibG9iX2lkIn19–9352bcdde0cce95cd08dce5505e3a005e5745fe0/20211213_500-06-000955-183_judgment.docx [Access 23 May 2022].
 Ibid., paras. 118,119, 135.
 Code of Civil Procedure.
 ENvironnement JEUnesse v. Attorney General of Canada, Appeal Judgement, paras. 24-27.
 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
 ENvironnement JEUnesse v. Attorney General of Canada, Appeal Judgement, para. 42.
 Ibid., para. 43.