In 2024, Europe's highest human rights court found that the Swiss government violated the rights of its citizens by failing to do enough to combat climate change. The case, Verein KlimaSeniorinnen Schweiz and others v. Switzerland ("KlimaSeniorinnen"), is the first instance of a court finding that climate inaction violates human rights. KlimaSeniorinnen underscores the potential for human rights law to be used as a tool to hold governments accountable for their climate policies.
Hinting to the possibility of similar developments in Canada, the Ontario Court of Appeal took a significant step in the development of climate-related litigation. In Mathur v. Ontario, the Court of Appeal for Ontario clarified that climate-related issues can be challenged in court and clarified the analytical framework for doing so on the bases of Sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter").1
SWITZERLAND'S CLIMATE POLICES VIOLATE THE RIGHT TO LIFE
This landmark ruling will undoubtedly be looked to as a guide for future climate change cases against governments in other jurisdictions, including Canada. The decision may also have trickle-down effects on corporate liability
The case was brought by an association of over 2,000 senior women known as KlimaSeniorinnen, or Senior Women for Climate Protection. They argued that Switzerland's climate inaction put them at risk of dying from excessive heat caused by climate change. The court found that Switzerland had failed to adopt the necessary legislative and administrative pre-industrial levels, exposing these senior women to serious heat-related health risks and thereby violating their human rights.
The court's ruling emphasized that the right to life and the right to respect for private and family life, as enshrined in the European Convention on Human Rights (the "Convention"), encompass a right to effective protection by the state from serious adverse effects of climate change. The court found that Switzerland's efforts to meet its emission reduction targets had been woefully inadequate, with critical gaps in the country's policies to tackle climate change, including failing to quantify reductions in greenhouse gases ("GHG").
CLIMATE-RELATED HUMAN RIGHTS CHALLENGES IN CANADA
KlimaSeniorinnen may serve as a springboard for further climate change litigation. The decision could influence Canadian courts to recognize the link between climate inaction and violations of the Charter, potentially leading to increased government and corporate accountability for climate policies.
In Canada, there is increasing litigation geared towards achieving constitutional recognition of the right to a healthy environment by interpreting the right to life, liberty and security of the person – enshrined in Section 7 of the Charter – to include the right to a healthy environment. Section 7 of the Charter is the closest equivalent in Canadian law to Article 8 of the Convention, which was the basis for liability in KlimaSeniorinnen. Both Section 7 of the Charter and Article 8 of the Convention protect the human right to life.
While a climate change action grounded in Section 7 of the Charter has yet to succeed on its merits, courts across Canada have held that climate change lawsuits are justiciable, meaning that they are suitable for determination by a court. In Mathur v. His Majesty the King in Right of Ontario, a group of seven young climate change activists commenced a constitutional challenge against the Ontario government in response to legislation that substantially weakened targets for the reduction of GHG emissions in the province. The applicant-activists argued that Ontario's 2 Being the rights to life, liberty, security of the person (Section 7); and equality under the law without discrimination (Section 15). adoption of weaker GHG reduction targets would lead to climate catastrophe, violating the rights of Ontario youth and future generations under Sections 7 and 15 of the Charter.2
The Superior Court interpreted the applicants' claim as a request for the recognition of positive rights – which would require proactive government intervention – rather than a complaint of government restriction. The Superior Court's primary basis for rejecting the claim was that the Charter does not place positive obligations on governments to set higher or more restrictive legislative targets. The applicants appealed and sought an order to compel Ontario to adopt a science-based emissions reduction target and revise its climate change plan to align with international standards.
The Court of Appeal agreed with the applicants, finding that the Court of Justice erred in characterizing the applicants' claim as an attempt to impose a positive obligation on Ontario to combat climate change. Ontario had voluntarily assumed a statutory obligation to combat climate change. As such, the applicants were entitled to seek a declaration that Ontario's statutorily imposed obligation to combat climate change was not constitutionally compliant.
The Court of Appeal rejected Ontario's position that it is beyond the competence of the courts to assess the sufficiency of climate policies, stating that "[t]he appellants are not challenging the inadequacy of the Target or Ontario's inaction, but rather argue the Target itself, which Ontario is statutorily obligated to make, commits Ontario to levels of greenhouse gas emissions that violate their Charter rights."3 Courts are capable of assessing the Charter compliance of legislation and state action "even when the issues are complex, contentious and laden with social values."4 The Court of Appeal also accepted that "[i]f a breach of the appellants' Charter rights is declared, there are clear international standards based on accepted scientific consensus that can inform what a constitutionally compliant Target and Plan should look like."5
The question of whether Ontario's climate change policies violates the Charter has been remitted back to the Superior Court to consider under the correct analytical framework. As such, it remains to be determined whether Ontario's climate policies breach Sections 7 and 15 of the Charter. If this question is answered affirmatively, it would be the first time a court has held that a government's insufficient climate change policies amounted to a violation of the Charter.
TAKEAWAY FOR INDUSTRY
The increasing feasibility of climate change claims grounded in the Charter – which only applies to government action – does not directly bear on the power to bring cases against corporations for climate change impacts. Nevertheless, 3 2024 ONCA 762 at para 41. 4 Ibid at para 36. 5 Ibid at para 70. an increase in the risk of a successful claim against the government for climate change laws is likely to result in an increased level of regulation and regulatory scrutiny.
Both the KlimaSeniorinnen case and the Mathur case represent significant developments in the field of climate litigation and human rights law. They demonstrate the growing recognition of the impact of climate change on human rights and courts' increasing willingness to order governments to take urgent action to address the climate. KlimaSeniorinnen in particular, since it succeeded on its merits, is likely to inspire similar cases in other jurisdictions, as citizens and advocacy groups seek to hold governments and corporations accountable for their climate policies. Risk management strategies in this regard are complex and industry specific, but should be considered as part of good corporate governance before claims are advanced and need to be defended.
For more information on the Mathur case, please refer to our in-depth analysis here. For more information on KlimaSeniorinnen, please refer to our in-depth analysis here.
Footnotes
1 Being the rights to life, liberty, security of the person (Section 7); and equality under the law without discrimination (Section 15).
2 Being the rights to life, liberty, security of the person (Section 7); and equality under the law without discrimination (Section 15).
3 2024 ONCA 762 at para 41.
4 Ibid at para 36.
5 Ibid at para 70.
This article appeared in ESG and Sustainability: Key Trends in Canada
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