Canada: Environmental Litigation On The Rise In Corporate Canada And Around The World

Climate change litigation continues to evolve in many jurisdictions and Canada has seen its fair share of proceedings seeking to hold governments and the oil and gas, energy and power industries responsible for carbon dioxide emissions.



The genesis of much climate change litigation was a 2015 decision of the Hague District Court where it held that there was a requirement "to avert the eminent danger caused by climate change" and averted to the government's "duty of care to protect and improve the living environment". That action was brought by an environmental interest group (Group) whose purpose is stated to "simulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands". In granting relief, the court ordered the state to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that the volume would be reduced by at least 25 per cent at the end of 2020 compared to the level of the year 1990.

In so concluding, the court found, among other things, that the Group had standing to seek relief, that the state owed a duty of care to take necessary measures to reduce greenhouse gas emissions and found the existence of a sufficient causal link between the Dutch greenhouse gas emissions, global climate change and the effects (now or in the future) on the Dutch climate. The court of appeal upheld the lower court decision and the government appealed that decision to the Supreme Court of the Netherlands, which has yet to release its decision.

While some of the findings of the courts in those decisions are reliant upon specific domestic laws, they have also relied upon various international conventions and laws that plaintiffs in other jurisdictions have adopted in pursuing similar relief.


In Canada, some organizations and political parties have pursued similar agendas. In 2018, a bill was introduced in Ontario that provided that fossil fuel producers would be strictly liable for claimed climate-related harms that occurred in Ontario. The preamble to the bill proclaimed that governments, businesses and individuals should ensure that they contribute to paying for the claimed harms to which their products allegedly contribute. The bill was not passed into law.

Greenpeace Canada also brought an application for judicial review against the Ontario government's decision to revoke operational elements of Ontario's cap-and-trade system intended to reduce greenhouse gas emissions. That action was recently subject to an unsuccessful motion to quash.

In ENvironnement JEUnesse v. Attorney General of Canada, a group of citizens are claiming that the Canadian government failed to set up a greenhouse gas emission reduction target and plan to avoid dangerous climate change impacts. On July 11, 2019, the Quebec Superior Court dismissed a motion to institute a class action finding that there was insufficient justification for the age limits of the class.

Earlier this year, the City of Victoria's council became the first Canadian municipality to support filing a class action lawsuit which seeks to have oil and gas companies pay a portion of the costs associated with claimed climate change.

The United States

Several U.S. municipalities have also commenced lawsuits against oil companies related to climate change claims. Those suits have been met with resistance and have been routinely dismissed by the courts. For example, the United States District Court for the Southern District of New York dismissed New York City's lawsuit to require fossil fuel companies to pay for the cost of dealing with climate change. The court in that case held that "the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government". Similar lawsuits have resulted in the same fate. In the U.S. Supreme Court decision in American Electric Power Co., Inc. et. al. v. Connecticut, a municipality and three private land trusts brought a public nuisance suit under federal common law against the five largest emitters of carbon dioxide in the United States. In striking the claim, the U.S. Supreme Court held that the Clean Air Act and related Environmental Protection Agency actions, which that legislation authorizes, displaces any federal common law right to seek abatement of carbon dioxide emissions from fossil-fuel fired plants.

In the closely watched 2019 lawsuit, Juliana v. United States, the plaintiffs cite the ninth and tenth amendments of the U.S. Constitution, which they claim require the government to protect the rights of present and future generations to essential natural resources that are of public concern including the air, water, sea and wildlife. The plaintiffs claim that the government must be proactive in protecting those resources and to refrain from "substantial impairment of those essential resources". The relief sought includes a declaration that the plaintiffs' fundamental constitutional rights to life, liberty and property have been violated and the government is allegedly causing or contributing to a dangerous concentration of carbon dioxide in the atmosphere.

The federal government vigorously opposed the claims and, on October 22, 2018, Chief Justice John G. Roberts Jr. enjoined the trial from proceeding. Proceedings have continued in the Ninth Circuit Court of Appeals this year and the parties are awaiting further decisions of the court.


While climate change litigation is evolving, it is expected that additional actions will be filed against both governments and corporations involved in the oil and gas, energy and power industries, seeking compensation arising from alleged climate change impacts. There are a number of strategies and defences available to mitigate the risks from this emerging litigation trend. For example, some U.S. courts have been receptive to summary dismissal applications premised on arguments to the effect that such claims are simply not justiciable by the courts and are uniquely matters for governments to consider as matters of both domestic and foreign policy. These and other strategies are available to successfully resist such litigation.

For permission to reprint articles, please contact the Blakes Marketing Department.

© 2019 Blake, Cassels & Graydon LLP.

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
Osler, Hoskin & Harcourt LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt 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