Canada: Is A Healthy Environment A Fundamental Right Of Citizens

Last Updated: July 24 2019
Article by Paula Lombardi

On November 26, 2018 ENvironnement JEUnesse ("ENJEU[1]") filed an application for authorization against the Government of Canada to bring a class action on behalf of all Quebec residents aged 35 and under claiming a right to a clean and healthy environment. The claim alleged that the Canadian government is infringing on a generation's fundamental rights due to its failure to implement appropriate greenhouse gas reduction targets to avoid the impacts of climate change. This infringement by the Government of Canada is claimed to have failed to protect the fundamental rights of Quebec youth under the Canadian Charter of Rights and Freedoms (Charter) and Quebec's Charter of Human Rights and Freedoms (Quebec Charter).

On June 6, 2019 ENJEU presented its arguments seeking authorization of the class action to the Superior Court of Quebec.

The claim alleged that the Government of Canada acknowledged that climate change poses significant risks to human health, lives and livelihoods of individuals and acknowledges that any increase in temperature must be limited to less than 2°C. The Government of Canada has made four commitments to reduce greenhouse gas emissions through a series of the following international agreements: United Nations Framework Convention on Climate Change (UNFCCC), 1992; Kyoto Protocol, 1997; UNFCCC Copenhagen, 2009; and Paris Agreement, 2015.

ENJEU alleged that the Government of Canada either failed to meet its commitments, withdrew from its commitments (e.g. Kyoto Protocol), or is currently not on track to meet its international commitments. Further, ENJEU claimed that the Paris Agreement target is inadequate on its face and, even if implemented, will continue to contribute greenhouse gases beyond levels already identified by the Government of Canada to result in harm.

The ENJEU claim alleged that the Government of Canada adopted inadequate greenhouse gas emission targets and violated the right of class members to life, liberty and security of the person protected by section 7 of the Charter and the right to equality for Quebec's youth pursuant to section 15(1) of the Charter. One of the remedies sought by ENJEU is an order requiring the implementation of remedial measures to mitigate the effects of climate change.

On July 12, 2019 Justice Gary D.D. Morrison of the Superior Court of Quebec released his decision refusing to grant ENvironnement JEUnesse's authorization to institute its class action against the Government of Canada.

According to Judge Morrison, "[i]n having regard to the nature of the class action that [ENvironnement JEUnesse] seeks to exercise and the nature of the alleged infringements of the fundamental rights of the putative members, the choice of the age of 35 by [ENvironnement JEUnesse] as the maximum age of members, leaves the Tribunal perplexed. [...] But why choose 35 years? Why not 20, 30 or 40? Why not 60? "

ENJEU has indicated its intention to appeal the judgment.

Climate change litigation is becoming increasingly more frequent in Canada and internationally. Several global cases have confirmed that the use of litigation can be used as a means of implementing changes to promote the fight against climate change. In the Netherlands for example (Urgenda Foundation v. The State of the Netherlands) the government was required to adopt a plan to ensure that its climate change targets were being met. Similar results were confirmed in Pakistan (Leghari v. Federation of Pakistan) and Colombia (Decision C-03516 of February 8, 2016).

The ENJEU claim is not entirely novel. The courts have held previously that a government action that facilitates or knowingly permits a third party to violate a person's life, liberty or security of the person, may still violate s. 7 of the Charter.[2] One of the tests to be successful in such a claim is that it must demonstrate a "sufficiently" causal connection between government action and the alleged violation.

The question that remains unanswered is whether the Charter can effectively be used to create environmental obligations. However, in the case of Gosselin v. Quebec (Attorney General) Chief Justice McLachlin appeared to leave the door open for such challenges when she stated: "I leave open the possibility that a positive obligation to sustain life, liberty, or security of person may be made out in special circumstances".

While the Charter itself does not explicitly grant any right to a clean and healthy environment, the language and case law with respect to section 7 and, to a lesser extent, section 15, suggests that the Charter may be read as implicitly to provide many of these protections.

However, the Canadian courts have not yet confirmed that substantive environmental rights are protected by section 7 of the Charter. It is important to note that the courts have not expressly precluded such a claim. There are cases where courts have indicated that, with the right facts, human health impacts from environmental causes may in fact fall under the protection provisions of section 7 of the Charter.[3]

Section 7 however is not violated unless the deprivation of life, liberty or security of the person is inconsistent with the "principles of fundamental justice". The case law with respect to "principles of fundamental justice" has developed primarily in the context of individual rights. Also, the courts have not yet determined whether "principles of fundamental justice" is required in instances where the threat is to the public rights, rather than individual rights.

Section 15 does not provide a mechanism where a general right to health or a clean environment can be declared. Section 15 requires a comparison to occur between the claimants alleging the harm and another group to show some type of discrimination. In other words, someone who is seeking to establish a violation of section 15(1) must show that they experienced differential treatment that: (i) originates from a law or government action and results in the loss of a benefit or the imposition of a burden; (ii) is based on an enumerated ground (or something analogous); and (iii) results in discrimination.

Where it can be established that a contravention of the principles of fundamental justice the Government of Canada can demonstrate that its impugned law or conduct should be sustained as a reasonable limit in a free and democratic society.

Despite the ENJEU case failing at the authorization stage it is becoming increasingly apparent that the opportunity exists to use the Charter and case law to allow cases alleging rights to a clean and healthy environment to be brought before the courts. We are interested in following this case to determine whether ENJEU's appeal of the authorization decision can be successful.

Footnote

1 For nearly 40 years, the non-profit organization ENvironnement JEUnesse has been acting to raise awareness on environmental issues among Quebec's youth, empower them through educational workshops, and encourage them to take action in their communities. ENvironnement JEUnesse has been intervening on climate issues for nearly 30 years now, in addition to speaking for Quebec's youth at the Conference of the Parties of the United Nations Framework Convention on Climate Change since 2005.

2 Lynda M. Collins, "An Ecologically Literate Reading of the Canadian Charter of Rights and Freedoms" (2009) 26 Windsor Review of Legal and Social Issues 7 at 32.

3 Nickie Vlavianos, "Health, Human Rights and Resource Development in Alberta: Current and Emerging Law" October 2003, Human Rights and Resource Development Project.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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