Climacteric Litigation Decisions – Part IV: Canada's Federal Court of Appeal Delivers Judgment on Ongoing Climate Actions

Introduction

This article is a continuation of a tseries on climate change litigation titled Climacteric Litigation Decisions.

In previous articles, we discussed the American decision in Held, et al v State of Montana, et al,[1] (“Held”). In Held, the Montana First Judicial District Court, located in Lewis and Clark County, Montana, USA, handed down an Order that is reportedly the first major climate litigation decision to come from a North American court. In the Order, claims based on environmental rights were upheld. In the same series, we summarized the history of climate change litigation in Canada and the USA, the potential impact of Held, and the likelihood of further climate change litigation. (Each article in the three-part series can be found here: Part I, Part II, and Part III). In Part II, we commented on significant climate actions currently underway in Canada, including Mathur, et al v Her Majesty the Queen in Right of Ontario,[2] (“Mathur”) and La Rose v Her Majesty the Queen[3] (“La Rose”).

In December 2023, the Federal Court of Appeal delivered a concurrent judgment which partly overturned the Federal Court of Canada’s (the “Federal Court”) decisions in two separate climate change actions. The two decisions considered on appeal were La Rose and Misdzi Yikh v Canada,[4] (“Misdzi”). In this article, we summarize this judgment and briefly discuss the potential impacts of this new development in the climate litigation context.

Background – Federal Court Decisions

La Rose

At the Federal Court, the first of the appealed decisions, La Rose, saw fifteen youths bring an action against Canada, alleging that Canada’s contributions to greenhouse gas emissions violated their right to life, liberty, and security of the person and their rights to equality, under sections 7 and 15, respectively, of the Canadian Charter of Rights and Freedoms[5] (the “Charter"). The main thrust of the claims brought by the youths was that Canada’s legislative response to climate change disproportionality affects their generation, and that they have suffered and will continue to suffer negative impacts due to their vulnerability in age.[6] The Federal Court granted a motion brought by the defendant (i.e., Canada) to strike the claim, without leave to amend. The Federal Court found that the claims under sections 7 and 15 of the Charter were not justiciable, as they were so political that they were not suitable for judicial determination. Further, the Federal Court noted that even if the claims were justiciable, they failed to disclose a sufficiently discrete instance of state action so as to permit any Charter analysis.

Midszi

The second of the appealed decisions, Midszi, saw two Wet’suwet’en House groups launch a similar claim to that of the plaintiffs in La Rose, contending that Canada’s legislative response to climate change and executive actions exacerbated the threat of climate change and violated their protections and rights under sections 7 and 15 of the Charter. Similar to its approach in La Rose, Canada responded to Midszi with a motion to strike. The Federal Court held that the plaintiffs’ claim had also pled no specific laws or state actions that breached the plaintiffs’ section 7 or 15 Charter rights, and that the Charter claims fell beyond the court's institutional capacity due to the claims’ broad political nature. Again, the Court struck the plaintiff’s claim without leave to amend.

Appeal to the Federal Court of Appeal

The plaintiffs in La Rose and Midszi appealed to Canada’s Federal Court of Appeal (the “Federal Court of Appeal”), arguing that the Federal Court had erred in concluding that their Charter claims under section 15 and section 7 were not justiciable based on the “broad and diffuse” nature of the asserted state conduct. The Federal Court of Appeal dealt with these issues, as summarized below.

Issue I: Equality (section 15)

Section 15 of the Charter guarantees and protects the equality rights of individuals in Canada. It works to prevent discrimination on various grounds such as race, ethnic origin, nationality, disability (mental or physical), sex, age, and religion, among others.

The appellants argued that their case fell under that of adverse effect discrimination because climate change affects them disproportionately and that the legislation implemented is not sufficiently robust to address this inequality.[7] Claims under section 15 of the Charter are assessed under a two-part test:

1. Whether the law or state action creates a distinction based on an analogous ground; and
2. Whether the law or state action imposes burdens or denies a benefit in a manner that perpetuates, reinforces, or exacerbates some disadvantage experienced by the group, either systemically or historically.[8]

The Federal Court of Appeal held that the adverse or disproportionate effect that climate change is having on the appellants is not the kind of adverse effect that section 15 aims to address; section 15 claims cannot allege discrimination caused by future inequalities.[9] While the Court recognized the international trend of recognizing youth climate rights and the promotion of intergenerational equity, this recognition could not fall under the framework of section 15.

Issue II: Life, Liberty and Security of the Person (section 7)

Section 7 of the Charter requires that laws or state actions that interfere with life, liberty, and security of the person conform to the principles of fundamental justice, which are the basic principles that underlie the notions of justice and fair process.[10]

While the Federal Court of Appeal found that the appellants’ section 15 claims had no jurisprudential rooting and were conceptually outside the scope of the right, the Court came to a different conclusion with respect to the appellants’ section 7 claims.

Under section 7, the appellants were required to demonstrate that the law interferes with, or deprives them of, their life, liberty, or security of the person, that this deprivation is not in accordance with the principles of fundamental justice, and that there is a causal connection between the impugned action or law and the prejudice they have suffered.

The Federal Court of Appeal noted that to engage section 7, “there must be a deprivation arising from the state action itself”.[11] Citing the Supreme Court of Canada’s guidance, which recognized the role of section 7 in reflecting and safeguarding the public’s evolving values,[12] the Federal Court of Appeal determined that “[t]he claim of a right to a healthy and livable environment, and the legislative sanctioning of something less, explores the scope of section 7 and tests its boundaries. The argument is novel, but it’s not doomed to fail...”[13] As a result, the Court found that the appellants section 7 claims still rested on a relatively unexplored doctrine and had a reasonable prospect of success, thus reversing the Federal Court’s decisions that the claims should be struck for lack of justiciability.[14] Further, the Federal Court of Appeal concluded that there is no reason to conclude that harms flowing from climate change and climate-related legislation are manifestly incapable of proof, as was found by the Federal Court.[15]

However, the Federal Court of Appeal also held that the appellants current pleadings “lack[ed] the focus necessary for constitutional analysis”.[16] The Federal Court of Appeal varied the orders of the Federal Court to permit the appellants to amend their section 7 claims.

Conclusion

The Federal Court of Appeal’s judgment has authorized these novel climate change actions against Canada to move forward. It's crucial to highlight that the Court did not make a judgment on the actions' merits; however, the decision to allow the appellants to amend their section 7 claims indicates that a claim of the right to a healthy and livable environment may fall within the scope of an individual's right to life, liberty, and security of person under section 7.

Stay tuned for updates on this action, as well as future climate change decisions, including the Ontario Court of Appeal’s future decision in Mathur. Also stay tuned for the Canadian Bar Association’s Environmental, Energy and Resource Law (NEERLS) 2024 Conference, which includes a panel discussion on climate change litigation.

For more information on environmental and climate change litigation, contact Stuart Chambers, Aaron Mann, Joelle French, or any member of our Environmental & Energy Practice Group.