Canada: Climate Change Litigation: Actions Against Corporations


Our previous article on climate litigation discusses the framework by which plaintiffs around the world have brought claims against their governments for allegedly failing to mitigate greenhouse gas (GHG) levels, thereby breaching their duty of care toward the nation’s citizens. Governments are not the only target of climate change litigation. Both public and private actors have brought litigation against corporations involved in the fossil fuel industry seeking redress for costs arising from climate change impacts.

The “Big Tobacco” Lawsuits and Climate Litigation

Scholars have noted that the “Big Tobacco” litigation could form a model for bringing claims against fossil fuel producers to recover costs associated with climate change. In the 1990s, a number of U.S. states launched lawsuits against the “Big Tobacco” companies alleging that these companies knew about the adverse effects of smoking, but falsely advertised cigarettes and attempted to hide the information from regulators and consumers. The states sought compensation for healthcare costs that arose from treating smokers. Tobacco companies settled and entered into the Tobacco Master Settlement Agreement and agreed to pay approximately $250 billion over twenty-five years.

In 1998, the B.C. government enacted the Tobacco Damages and Health Care Costs Recovery Act (1998) and became the first Canadian jurisdiction to sue tobacco manufacturers for recovery of tobacco-related health care costs. In 2010, British Columbia partnered with five other provinces in a national legal consortium to seek reimbursement of healthcare costs from tobacco manufacturers.

In From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability by Martin Olszynski, Sharon Mascher and Meinhdard Doelle, the authors discuss how tobacco and climate liability both have private and public dimensions to their related harms. “Private” in that individuals will be affected due to the adverse effects of tobacco use and climate change via physical harm, and “public” with regard to public health concerns of significant portions of populations getting sick or being negatively affected by these harms, which government healthcare systems will have to bear the brunt of. However, climate liability goes a step further, as the consequences of climate change include the private and public harms of individual property damage and the same to various municipal infrastructure [pg. 23-24]. The authors envision the enactment of a “Climate Change Damages and Adaption Costs Recovery Act” mirroring the legislation enacted to support the tobacco litigation like the B.C. Tobacco Damages and Health Care Costs Recovery Act [pg. 5-7]. In fact, climate change liability legislation has already been proposed in Canada, but has not yet been passed into law.

In early 2018, the Ontario NDP introduced Bill 21, Liability for Climate-Related Harms Act, 2018. As we wrote in a previous post, this private members bill proposed imposing strict liability on fossil fuel producers for damages arising from climate change harms, including:

  • economic loss or physical loss of property, infrastructure, structures, resources or other assets;
  • costs associated with obtaining and maintaining insurance in respect to such losses;
  • death, injury, illness or other physical or psychological harms and costs associated with treating or caring for persons suffering from them;
  • ·ocean acidification;
  • loss of land or damage to infrastructure due to rising sea levels;
  • costs of monitoring, research and analyzing the climate and the weather;
  • costs of responding to emergencies arising from natural disasters associated with climate change;
  • costs of constructing, renovating, repairing or improving infrastructure in order to minimize such harms and costs; and
  • costs of carrying out public education campaigns to inform the public about reducing and avoiding such harms and costs.

Bill 21 also addressed the evidence needed to prove causation for losses arising from climate change. The Bill provided that where it was alleged that a particular weather event, food or other event was caused by climate change, evidence that climate change doubled the likelihood of that type of event occurring would be sufficient to demonstrate, on the balance of probabilities, that the event was caused by climate change or that climate change worsened the impact of the event.

Bill 21 was not passed before a provincial election in the spring of 2018. The Ontario NDP reintroduced the proposed act in the fall of 2018 as Bill 37. However, this bill did not pass second reading.

Municipalities Suing Fossil Fuel Companies for Anticipatory Climate Change Impacts

A number of U.S. cities have filed suits against fossil fuel companies, including Baltimore, New York, Oakland and San Francisco, seeking compensation for anticipatory costs of damage to infrastructure caused by climate change. Canadian municipalities, including Toronto and Victoria, are considering similar litigation against fossil fuel producers.

In early 2019, Toronto City Councillor Mike Layton put forward a motion to consider whether the City of Toronto should sue fossil fuel producers for the anticipatory costs the City will incur due to climate change. Between 2000 and 2012, the City of Toronto reportedly experienced three separate 100-year rain storms and spent close to $1 billion in insured property losses caused by floods in 2013. The motion asks for a staff report to be prepared for council’s infrastructure and environment committee, which will expound upon the “long-term cost implications of climate change.” Mr. Layton stated that Toronto should look to the U.S. municipalities and “sue major oil companies for the billions of dollars in extra costs the city could incur in coming decades from floods and storms caused by climate change.” The report is scheduled to be completed by the end of 2019.

On January 17, 2019, Victoria passed a resolution to ask the Union of BC Municipalities to look into pursuing a climate-related class-action lawsuit against 20 fossil fuel companies. The litigation would seek compensation from the companies for the cost for municipalities to prepare and respond to climate change.

Private Individuals and Climate Change Litigation Against Corporations

It is not only state actors that are taking to the courts seeking compensation from corporations for climate change impacts. Private individuals have also commenced litigation. An interesting case that has been ongoing for several years involves a resident in Huaraz, Peru suing a German energy company for the cost of flood-preventing measures to mitigate the effects of nearby melting glaciers.

Lliuya v. RWE AG

The City of Huaraz is located in the foothills of the Andes. Just above Huaraz and between two glaciers lies Lake Palcacocha. The glacial lake has proved to be a serious threat to the inhabitants of Huaraz over the past century due to flooding, including when in 1941 an earthquake caused a piece of the glacier to fall into the lake triggering a massive wave. Approximately 1,800 people died as a result. Now, increasing levels of global GHG emissions, rising temperatures and melting glaciers portend a worrisome future for the citizens of Huaraz.

In 2015, Saúl Ananías Luciano Lliuya, a resident of Huaraz, brought an action against the German energy company RWE AG, Germany’s largest electricity producer. Mr. Lliuya asserted that despite previously implemented preventative measures, the lake still poses a flood risk and RWE AG “contributed to this state to a degree of [0.47%], proportional to its share of worldwide [GHG] emissions.” Mr. Lliuya wants RWE AG to bear a proportionate level of the cost of the flood-preventing measures he and the Huaraz authorities implemented in the region.

The German District Court of Essen initially sided with RWE AG, declaring that it was “impossible to identify anything resembling a linear chain of causation from one particular source of emission to one particular damage.” However, on appeal in November 2017, the Higher Regional Court of Hamm ordered an evidentiary phase where expert opinions on a potential causal link between the flooding and RWE AG’s GHG contributions would be gathered. Due to disagreements on the selection of experts between Mr. Lliuya and RWE AG, the Higher Regional Court of Hamm has now appointed experts who “will provide an opinion on the question of whether or not there is a serious threat of impairment to the plaintiff’s property.” In early 2019, the Higher Regional Court of Hamm made a request to the State of Peru for a court-appointed site visit to the glacial lake in the Huaraz area. Processing this request will take approximately one year.


Climate change litigation against fossil fuel producers and large emitters like RWE AG is still in its early stages. These cases are being watched closely by climate change activists around the world. Any success is likely to serve as a catalyst for further litigation in the way that the Urgenda case has.

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
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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