Appeal Launched Against Federal Court's Dismissal Of Youth Climate Change Lawsuit

• Published date: 29 November 2020
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Climate Change, Clean Air / Pollution
• Law Firm: Miller Thomson LLP
• Author: Mr Steven Evans and Christie McLeod

The Federal Court's recent dismissal of a climate change lawsuit brought by a group of 15 Canadian youths has been appealed to the Federal Court of Appeal. In La Rose v Canada,¹the Plaintiffs claimed against Her Majesty the Queen in Right of Canada and the Attorney General of Canada, alleging that Canada, through its actions and inactions, was:

• continuing to cause, contribute to and allow a level of greenhouse gas ("GHG") emissions that is incompatible with a stable climate system;
• adopting GHG emission targets that are inconsistent with the level of ambition dictated by the best available climate science;
• failing to meet Canada's GHG emission targets; and
• actively participating in and supporting the development, expansion and operation of high-emitting industries and activities involving fossil fuels.

The Plaintiffs argued that the cumulative effects of GHG emissions occurring from this conduct unjustifiably infringed their rights to life, liberty and security, as well as equality, under sections 7 and 15, respectively, of the Canadian Charter of Rights and Freedoms (the "Charter").

The Plaintiffs also argued that Canada had breached the "public trust doctrine," a novel claim based on a belief that the state holds certain common resources in trust for the general public's use and benefit and is, therefore, obligated to protect and preserve the integrity of such resources. The Plaintiffs identified navigable waters, the foreshores and the territorial sea, the air (including the atmosphere) and the permafrost as public trust resources in this claim.

Motion to Strike Granted

On February 7, 2020, Canada filed a motion to strike the Plaintiffs' Statement of Claim. This required Canada to satisfy the court that it was plain and obvious that the Statement of Claim failed to disclose a reasonable cause of action.²

Despite the high threshold, Justice Manson granted the motion, ruling that neither Charter claim was justiciable. He found that Canada's conduct challenged by the Plaintiffs could not sustain a section 7 Charter analysis due to its "undue breadth and diffuse nature," and that the Plaintiffs failed to make clear what impugned law created a distinction to be challenged through a section 15 Charter claim. With respect to the public trust doctrine, Justice Manson stated that, although the doctrine's novelty was not a bar to its justiciability, this doctrine failed to disclose a reasonable cause of action and was not supported in Canadian law.

Justice...