The Plaintiffs sued the Attorney General of Canada for action and inaction on climate change (“Impugned Conduct”) which has infringed their right to life, liberty, and security of the person (s. 7 of the Charter of Rights and Freedoms), as well as their rights as beneficiaries under the Public Trust Doctrine. The Defendants, the Attorney General of Canada, brought a motion to strike the Plaintiff’s Statement of Claim on the basis that it does not disclose a reasonable cause of action under Rule 221 of the Federal Court Rules. (In civil litigation, defendants often have a right to strike statements of claim that do not disclose a reasonable cause of action in order to avoid adjudicating meritless claims). The federal government was successful. An application to appeal this decision has been made recently.
The Court dismissed the Plaintiff’s Statement of Claim on the basis that the Charter claims were not justiciable, and that the Public Trust Doctrine does not exist in Canadian law. Specifically:
- Are the claims justiciable? The Charter claims were not (Court is not capable of determining Charter claims of broad/diffuse government action/inaction); Public Trust Doctrine yes (the Court can determine whether Public Trust Doctrine is a legal question).
- Does the s. 7 claim disclose a reasonable cause of action? No. The Plaintiffs relied on a diffuse “Impugned Conduct” rather than a specific law/action.
- Does the s. 15 claim disclose a reasonable cause of action? No. The Plaintiffs relied on a diffuse Impugned Conduct rather than a specific law/action. No. The Plaintiffs did not cite a specific law/action as the source of discrimination.
- Does the Public Trust Doctrine claim disclose a reasonable cause of action? No. The court found that it does not currently exist in Canadian law.
- The Plaintiffs:
- The Plaintiffs include 15 youth and children across Canada
- Their Statement of Claim described each of their specific experiences with climate change in their respective geographic regions with unique local circumstances impacted by climate change
- The common thread: climate change has negatively impacted the Plaintiffs’ physical, mental, and social health/well-being, as well as threatened their homes, cultural heritages, and hopes/aspirations for the future
- The Plaintiffs argued that they were particularly vulnerable to climate change due to their stage of development, increased exposure, and overall susceptibility
- Sierra, 18, from Vancouver Island, BC
- Cecilia, 16, from Toronto, ON
- Sophia, 18, from Gatineau, QC
- Zoe, 12, from Vancouver, BC
- Sáj, 14, from Melfort, SK
- Haana, 16, from Haida Gwaii, BC
- Lauren, 16, from Saskatoon, SK
- Montay, 13, from Smithers, BC
- Mikaeel, 11, from Mississauga, ON
- Madeline, 18, from Winnipeg, MB
- Hiroki, 19, from Fort Good Hope, NT
- Ira, 16, from Caledonia, NS
- Albert, 18, from Montreal, QC
- Lucas, 16, from Ottawa, ON
- Sadie, 14, from Calgary, AB
a. Continuing to cause, contribute to and allow a level of GHG emissions incompatible with a Stable Climate System;
b. Adopting GHG emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a Stable Climate System;
c. Failing to meet the Defendants’ own GHG emission targets; and
d. Actively participating in and supporting the development, expansion and operation of industries and activities involving fossil fuels that emit a level of GHGs incompatible with a Stable Climate System.
- an order declaring that the Defendants have a common law and constitutional obligation to act in a manner compatible with maintaining a Stable Climate System, i.e. one that is capable of sustaining human life and liberties, and to refrain from acting in a manner that disrupts a Stable Climate System;
- an order declaring that, as a result of their Impugned Conduct, the Defendants have and continue to unjustifiably infringe the Plaintiffs’ rights under section 7 of the Charter and put at risk the section 7 rights of all children and youth now and in the future;
- an order declaring that, as a result of their Impugned Conduct, the Defendants have and continue to unjustifiably infringe the Plaintiffs’ rights under section 15 of the Charter and put at risk the section 15 rights of all children and youth now and in the future;
- an order declaring that, as a result of their Impugned Conduct, the Defendants have breached and continue to be in breach of their obligation to protect and preserve the integrity of public trust resources and have violated the right of the Plaintiffs and put at risk the rights of all children and youth now and in the future to access, use and enjoy public trust resources including navigable waters, the foreshores and the territorial sea, the air including the atmosphere, and the permafrost (“Public Trust Resources”);
- an order requiring the Defendants to prepare an accurate and complete accounting of Canada’s GHG emissions, including the GHG emissions released in Canada, the emissions caused by the consumption of fossil fuels extracted in Canada and consumed out of the country, and emissions embedded in the consumption of goods and services within Canada;
- an order requiring the Defendants to develop and implement an enforceable climate recovery plan that is consistent with Canada’s fair share of the global carbon budget plan to achieve GHG emissions reductions compatible with the maintenance of a Stable Climate System, the protection of Public Trust Resources subject to federal jurisdiction and the Plaintiffs’ constitutional rights;
- an order retaining jurisdiction over this action until the Defendants have fully complied with the orders of this Court and there is reasonable assurance that the Defendants will continue to comply in the future absent continuing jurisdiction; and
- costs, including special costs and applicable taxes on those costs; and i. such further and other relief as this Honourable Court deems just.
The Court uses the following legal tests in their analysis:
- The question courts ask themselves upon a motion to strike is: “Is it plain and obvious that the pleadings [ie. Statement of Claim] disclose no reasonable cause of action, or that the claim has no reasonable prospect of success?”
- The threshold is high: the matter should proceed to a trial where reasonable prospects of success exists
- The court must keep several considerations in mind:
- The courts evaluate the “material facts” (facts that are relevant to make a legal decision for a claim) to determine the success of the claim
- The material facts pleaded must be taken as true (unless allegations are based on assumptions and speculation) – the burden is therefore on the plaintiffs to clearly plead facts in sufficient detail to support their claims and relief sought
- The material facts must be interpreted and considered as generously as possible, erring on the side of permitting novel – albeit still arguable – claims to proceed to trial
- Evaluations are done with the assumption that if the claim were allowed to proceed, that it would do so in the usual fashion (ie. an adversarial system where judges have a duty to apply laws as set out in statutes and precedents)
- Keeping all that in mind, the court proceeds to evaluate the Statement of Claim answering the above question — if it does not disclose a reasonable cause of action or the claim has no reasonable prospect of success, the Statement of Claim will be struck
- What is justiciability? An issue is justiciable if it is appropriate for the court to consider. It helps keep the court’s proper role within Canada’s constitutional framework and division of powers between it and other levels of government. Questions when considering justiciability include:
- Does the court have the institutional capacity and legitimacy to adjudicate a matter?
Is it appropriate for the court to decide such an issue?
- Would adjudication be an economical and efficient investment of judicial resources?
- Is there sufficient factual and evidentiary basis for the claim?
- Would there be an adequate adversarial presentation of the parties’ positions?
- Is there any other administrative or political body that has jurisdiction of the matter by statute? (27-31)
- Does the court have the institutional capacity and legitimacy to adjudicate a matter?
- The courts keep the following in mind:
- Novelty or complexity does not make an issue non-justiciable (32)
- The importance of societal issues cannot extend the court’s role (32)
- Policy and political questions do not automatically make an issue non-justiciable, but some questions are so political that courts would not be suited to deal with them (ie. the matter is not resolvable through an application of law or judicial process) (33)
- Adjudictable policy choices take form as some law or state action (38)
Preliminary issue: Should the Statement of Claim be struck due to it raising Charter claims, including novel ones, and novel questions of law?
- The Plaintiffs tried to argue that novel claims, especially ones related to the Charter, should not be decided on a motion to strike (23)
- The Defendants stated Charter claims are not novel because they engage traditional Charter analyses; even so, the Court has the power to strike novel claims that are not in line with the principles of proper judicial restraint (23)
- The Court decided that a Charter claim or novel claim alone does not prevent them from considering the Motion to Strike — claims should not survive such motions simply based on novelty, as disposing of meritless novel claims are “critical to the viability of civil justice and public access” (25)
1) Main issue 1: Justiciability
(see above for the justiciability test)
1. a) The Justiciability of the Plaintiff’s Charter Claims
- The Plaintiff’s argument: the claim is systemic and complex, but making a determination of the constitutionality of the Defendant’s conduct is justiciable and within the court’s capacity: the courts have the capacity to assess scientific data, the underlying social and political contexts is not a barrier, and the claim is narrow enough (they are not asking the court to review each of the Defendant’s actions/inactions, but to look at the cumulative effects of GHG emissions arising from their conduct) (39)
- The Court: the Plaintiff’s Charter claims fail. Their claim raises questions so political that the Courts cannot deal with them — this policy question has not been captured in a law or state action to form the basis of a Charter challenge. Instead, the Plaintiff’s allegations include an “overly broad and unquantifiable number of actions and inactions”, which does not meet the test of justiciability. This is further supported by the “undue breadth and diffuse nature” of the Impugned Conduct and remedies (42)
i. Issues with the Impugned Conduct: the Plaintiff’s claim is diffuse, essentially taking issue with the whole of Canada’s policy responses to climate change. The Plaintiffs tried to argue that the court should not look at their cause of action as each and every law/state action behind climate change, but the “cumulative effects of GHG emissions”, but doing so would undermine the function of Charter reviews, which is an assessment of a specific law or action (43)
- To ask the Court to consider all conduct leading to GHG emissions is to get involved in Canada’s overall policy response to climate change (44). The court has refrained from considering similar policy choices that were determined to be better dealt with by other levels of government, including: types of healthcare systems, approaches to illegal drug use and addiction, regulating prostitution, and physician assisted death (44) — it was when such societal issues/policy choices were translated into a law or state action that they could not infringe on constitutional rights — this is the basis for Charter challenges (45)
- The Plaintiffs cited Youth Environment v Attorney General of Canada, which found the issue of constitutional claims regarding climate action as justiciable, but this case is not binding on this court and involves a different breadth of conduct (47)
ii. Issues with the Remedies: the Court found that the remedies sought were inappropriate for the following reasons.
- Remedy 1 (an order declaring that the Defendants have a common law and constitutional obligation to act in a manner compatible with maintaining a Stable Climate System): this remedy is unrelated to the constitutionality of the Impugned Conduct and even if it was, it would mean that the Plaintiffs are seeking a legal opinion on the interpretation of the Charter in absence of a clearly defined law or state action (51)
- Remedies 2-5 (declaratory relief): the remedy does not address underlying harms created by a law or state action and is effectively asking the Court to make a public inquiry assessing the effectiveness of the Defendant’s overall approach to climate change (52)
- Remedies 5-7: Like other cases that sought wide-ranging remedies, the ones here would be effectively meaningless and beyond the Court’s institutional capacity (53). Further, the Plaintiffs did not specify the contents of any kind of enforceable climate recovery plan. This remedy lacks content and meaning, and asks the Court to play a policy-making function (55)
1. b) The Justiciability of the Public Trust Doctrine
- The Plaintiffs: wanted the court to recognize the existence of the sui generis (“unique” or “one of a kind”) public trust doctrine that puts an obligation on the Defendants to protect and preserve various public resources within their federal jurisdiction (57)
- The Court found that determining whether Public Trust Doctrine exists is clearly a legal question within their realm to decide – so the question remains: does a claim based on Public Trust Doctrine disclose a reasonable cause of action or a reasonable prospect of success?
2) Main issue 2: Reasonable Cause of Action
Does the Statement of Claim disclose a reasonable cause of action? In short, the Court answers “No”, and as such, the claims based on the Charter and Public Trust Doctrine have no reasonable prospect of success. Even if the Court was wrong in the issue of justiciability, the Charter claims would fail on this point. The Court took issue with the breadth and diffuse nature of the Impugned Conduct, which could not sustain a s. 7 analysis, and the Plaintiffs failed to disclose a distinction on the basis of a specific state action/law for the s. 15 analysis. The Court also ruled that the existence of Public Trust Doctrine is not supported in Canadian law (59)
2. a) Does the s. 7 claim disclose a reasonable cause of action?
- Summary: No, the Impugned Conduct was too diffusely described.
- The s. 7 test: Plaintiffs must demonstrate that (1) legislation/state action interferes with or deprives them of life, liberty, or security, and (2) once a breach is established, to show that the deprivation is not in accordance with the principles of fundamental justice (60)
- Again, as the test on a motion to strike assumes the claim will proceed in the usual way (ie. the traditional analysis outlined above), the Court found that the wide breadth of Impugned Conduct was too problematic as it did not establish a specific law, state action, or network of either, in which to ground the s. 7 analysis — as such, there is no reasonable prospect of success
- The Court also addresses the Defendant’s remaining arguments, specifically:
- That the Plaintiff’s claim is based on positive rights and there must fail: The Court found that the Plaintiff’s claim would not have been struck on this reason alone. The Plaintiffs deny that a s. 7 deprivation includes both action and nonaction, and the Court likewise was not prepared to conclude that s. 7 only engages positive rights (for the purpose of the Motion to Strike analysis), acknowledging that past case law has cautioned against looking at s. 7 as “frozen” by previous definitions in law (72)
- The Plaintiff’s Charter claims are too speculative and incapable of proof: the Court disagreed that there could not be a sufficient causal link — “Canada has a role in GHG emissions that is more than speculative in this current case” (74-75)
2. b) Does the s. 15 claim disclose a reasonable cause of action?
- No, the Plaintiffs did not claim discrimination based on a specific state law/action
- The s. 15 test: Plaintiffs must demonstrate that an impugned law creates (1) distinction based on enumerated or analogous grounds, and (2) that distinction perpetuates a disadvantage (76)
- Section 15 applies to the constitutionality of legislation and government action; the law in question must be the source of this discrimination (77)
- The Plaintiffs argued that the Impugned Conduct includes impugned laws and the discrimination is on the basis of age and Indigeneity, but the Court agreed with the Defendants and rejected this argument: what impugned law creates the claimed distinction is unclear; they have essentially skipped step 1 of defining the law that creates the discrimination (79)
2. c) Does the Public Trust Doctrine claim disclose a reasonable cause of action?
- The Plaintiffs suggest that the Public Trust Doctrine is a suis generis doctrine established in both common law and unwritten constitutional principles, and as beneficiaries of this public trust, they may call on the Public Trust Doctrine when the Defendants have failed to discharge their obligations (81-2)
- The Plaintiffs argue that the resources that fall under the Public Trust Doctrine include navigable waters, air, and permafrost, and include several general obligations:
- A duty to exercise continuous supervision and control over the Public Trust Resources;
- A duty to protect the right of the public to access, use and enjoy such resources whenever feasible, including those rights that are fundamental to the ability of the public to enjoy the benefit of the resource as one held in common; and
- A duty to safeguard the Public Trust Resources in a manner that does not substantially impair the integrity of these resources or substantially impair the right of the public to access, use and enjoy such resources.
- A duty to exercise continuous supervision and control over the Public Trust Resources;
A. At common law:
- The Plaintiffs try to distinguish the Public Trust Doctrine as an unrecognized legal right as opposed to a non-existent one, and that it should therefore be heard at trial to assess its existence and the boundaries of the obligation (85)
- The Court disagreed: the courts have historically failed to recognize the Public Trust Doctrine and therefore it does not exist in Canadian law; an unrecognized legal right is a non-existent cause of action. The Court cited the wide breadth of the Public Trust Doctrine claim, lack of material facts, and extensive/unlimited resulting obligations as a sign that no cause of action existed (92)
B. As an unwritten constitutional principle
- The Plaintiffs relied on secondary sources discussing natural law and suggested rejecting this claim on a motion to strike would be premature (96)
- The Court disagreed: the Statement of Claim did not plead material facts to support the Public Trust Doctrine as an unwritten constitutional principle, which was fatal to their cause of action (99)