On December 13, 2023, a unanimous Federal Court of Appeal re-opened the door to two separate challenges to the Government of Canada's response to climate change.

This decision, La Rose v. Canada, 1 involved appeals from two Federal Court decisions. The La Rose appellants were 15 children and youth between the ages of 10 and 19 (at the time of filing), residing across Canada. The Misdzi Yikh appellants are two Wet'suwet'en House groups comprising the Likhts'amisyu (Fireweed) Clan, Misdzi Yikh (Owl House), and Sa Yikh (Sun House), and each of the House groups' dini ze' or Head Chief. The La Rose appellants and Misdzi Yikh appellants had brought separate actions against Canada alleging, among other things, that its failure to address the problem of climate change violated their rights under sections 7 and 15 of the Charter.

The Federal Court below had struck the La Rose and Misdzi Yikh claims without leave to amend on the basis that the claims were not justiciable — in other words, that the claims concerned matters beyond the capacity or legitimate role of a court. The Federal Court was of the view the claims would require the court to adjudicate on broad and diffuse aspects of government conduct, which are political matters, and not matters for the courts. 2

The Federal Court of Appeal disagreed and allowed the appellants' joint appeal, in part, finding that the section 7 claims are justiciable. The court found that the appellants' section 7 claims were linked to Canada's alleged failure to meet its commitments in the Paris Agreement, commitments ratified by Parliament, and therefore there are legally-defined, objective standards against which the Charter claims can be assessed:

The claim of a right to a healthy and livable environment, and the legislative sanctioning of something less, explores the scope of section 7 and tests its boundaries. The argument is novel, but it is not doomed to fail. Courts should be cautious in striking claims at an early stage. It is trite law that novel but arguable claims should be allowed to proceed so as to not inhibit the development of the common law [...]. The law is not static and unchanging—actions that were deemed hopeless yesterday may succeed tomorrow. It is for this reason that courts must be cautious about striking claims and err on the side of allowing novel but arguable claims to proceed. 3

However, the court held that the claims as pleaded should be struck, as they were "overbroad" and failed to "zero in on" specific provisions alleged to constitute a deprivation under section 7. 4 The court granted the appellants leave to amend their pleadings in respect of the section 7 claims.

The Federal Court of Appeal made a number of statements relevant to Charter-based climate litigation in Canada generally, including:

  1. Climate change is having a dramatic, rapidly unfolding effect on all Canadians and on northern and Indigenous communities in particular. 5
  2. It is beyond doubt that the burden of addressing the consequences will disproportionately affect Canadian youth.
  3. Climate change's current and potential effects are widespread and grave, and they include loss of land and culture, food insecurity, injury and death. 6
  4. Climate change presents an existential challenge, a threat of the highest order to the country, and to the future of humanity which cannot be ignored. 7
  5. The doctrine of justiciability does not necessarily preclude judicial intervention on climate change matters. 8
  6. There is no reason to conclude that harms flowing from climate change and climate-related legislation are manifestly incapable of proof — there is a vast body of scientific knowledge dealing with climate change, greenhouse gas emissions, and their consequences on human health and the environment. 9
  7. Climate change may constitute the "special circumstances" necessary to establish positive rights, or impose positive obligations, under section 7. 10
  8. The fact that there are other causes or sources of greenhouse gas emissions does not constitute a barrier to a constitutional challenge; it is for the trial judge to determine, as a factual matter, whether there is a sufficient constitutional nexus between those harms and the impugned state action. 11

The La Rose cases stresses that courts must not dismiss claims simply because they are novel or complex. It may be essential that novel, but as-yet unprecedented arguments proceed to an in-depth analysis so as to allow the common law to evolve to respond to the challenges of modern society. It is one of a growing number of climate cases in Canada and around the world that have successfully overcome preliminary motions to strike on the basis of justiciability. It remains to be seen how the courts will address these claims on their merits.

Footnotes

1. 2023 FCA 241 [La Rose].

2. 2020 FC 1008, per Manson J.; 2020 FC 1059, per McVeigh J.

3. La Rose at para. 109.

4. La Rose at para. 128.

5. La Rose at para. 76.

6. La Rose at para. 116.

7. La Rose at para. 116.

8. La Rose at paras 45, 52.

9. La Rose at para. 114.

10. La Rose at para. 116.

11.La Rose at para. 134.

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