Canada: "New Stuff" In Climate Change Class Actions

"You’re asking us to do a lot of new stuff, aren’t you?" Judge Andrew D. Hurwitz of the U.S. Court of Appeals for the Ninth Circuit in Juliana v. United States, June 4, 2019.

It has been a busy month for climate change litigation in Canada and the United States. Two prominent class actions were in court in Québec and Oregon, both launched by young people who allege their federal governments are not taking enough action on climate change and are in breach of their constitutional rights as a result.

  • On June 4, in Juliana v. United States, the plaintiffs (a class comprised of 21 people ranging from ages 9 to 21) and the defendants (several U.S. federal agencies and President Trump) appeared before the U.S. Court of Appeals for the Ninth Circuit in Oregon. The trial was scheduled to be heard last fall but had been delayed by government motions.
  • On June 6, ENvironment JEUnesse (ENJEU) presented its class action climate claim against the Canadian government in the Superior Court of Québec on behalf of Québeckers aged 35 and under.

Juliana and ENJEU

Juliana v. United States was filed against the U.S. federal government in 2015 in which the plaintiffs claim a breach of the "public trust doctrine", saying that the government holds public resources in trust for the public's use and enjoyment—and it has breached those obligations in the management of the resources.

ENvironnement JEUnesse vs Canada was filed in November 2018 on behalf of all Québec citizens aged 35 years and under. ENJEU alleges the Canadian government is infringing on a generation's fundamental Charter rights, because its greenhouse gas reduction targets are not ambitious enough to avoid harm to human life and health (claiming breaches of sections 7 and 15 of the Canadian Charter of Rights and Freedoms and section 1, 10 and 46.1 of the Québec Charter). They are making the novel claim that the governments are disproportionately burdening younger generations with the future costs of climate change and are specifically infringing the Québec citizens "right to live in a healthful environment in which biodiversity is preserved" (Québec Charter, section 46.1).

Other Climate Change Class Actions

There have been nine youth-led class actions in the United States in recent years with similar grounds to those plead by the plaintiffs in the Juliana and ENJEU claims. Large oil and gas corporations have also been sued in the United States by states, municipalities and in private civil claims, alleging that they have contributed substantially to the "public nuisance" of global warming.

A recent climate change class action in Canada was the case brought by Burgess against the Ontario Minister of Natural Resources and Forestry where cottage owners on the Muskoka Lakes were claiming against the government for its role in flooding of the lakes. The plaintiff claimed that the government had a duty to avert foreseeable flooding, and were negligent in failing to take action, despite knowing that the lakes had reached dangerously high levels early in the year. The claim was commenced in September 2016 and discontinued in November 2018 at the request of the plaintiff.

In addition, Volkswagen is facing a class proceeding in Québec (Belisle v. Volkswagen) brought on behalf of all people who lived in Québec at some point between January 1, 2009, and September 21, 2015, for Volkswagen’s alleged contribution to pollution generated by the company’s vehicles installed with the defeat device. The claim, which is for punitive damages only arising from allegations of breach of the Québec Charter right to a “healthful environment,” was authorized by the Québec Superior Court even though it recognized that the claim might not be legally tenable. The Supreme Court of Canada has since granted leave to hear an appeal from that authorization.

Hurdles to Success

There are many hurdles to the success of climate change class action lawsuits in the courts, some of which were highlighted in the arguments recently advanced in the Juliana case. One main question that frequently arises in such cases is whether climate change policy is a political or legislative question better left with the legislative and executive branches in Canada, the United States and elsewhere as opposed to the courts. As Judge Andrew D. Hurwitz told the lawyer for the plaintiffs in Juliana, “[y]ou’re arguing for us to break new ground. You may be right. I’m sympathetic to the problems you point out. But you shouldn’t say this is just an ordinary suit. . . .You’re asking us to do a lot of new stuff, aren’t you?”

We'll have to see if the court is prepared to accept the "new stuff" when the decision is announced.

Bennett Jones offers clients some of Canada’s most experienced and active class action defence lawyers. Our Class Action Litigation group delivers value to clients through strategy defined by business objectives, a practical approach to managing risk, demonstrated experience and success, and service delivery tools and technology.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions