Climate Change Litigation Arrives In Canada

Author:Ms Maureen Killoran, Colin Feasby and Matthew Huys
Profession:Osler, Hoskin & Harcourt LLP
 
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In this Update

Two recent developments demonstrate that climate change litigation has arrived in Canada: the ENVironnement JEUnesse lawsuit in Québec and the City of Victoria's endorsement of a class action lawsuit against oil and gas producers for climate-related harms. Oil and gas producers may soon be faced with climate litigation. Further, the pressure created by litigation, regardless of its success or failure, may also affect the regulatory and operating environment for Canadian companies. Steps Canadian oil and gas producers should take to prepare for climate change litigation include analyzing their historical greenhouse gas emissions and carefully reviewing their climate change risk disclosure. Heightened public awareness and a sense of global urgency around climate change-related risks and impacts, combined with the introduction of national laws and international commitments designed to combat such risks, have inspired a new type of legal action: climate change litigation. In a relatively short period of time, more than 1,000 climate litigation cases were filed worldwide, leaving many of us to speculate when this “trend” would come to Canada. Two recent developments demonstrate that climate change litigation has arrived in Canada. In November 2018, an action was filed by ENVironnement JEUnesse (ENJEU) in the Quebec Superior Court, followed shortly thereafter by the City of Victoria's (Victoria) endorsement of a class action lawsuit against oil and gas producers for climate-related harms.

Generally, climate change litigation has two broad categories:

Suits Against Governments — public law actions raising human rights, constitutional, and administrative law arguments; and Suits Against Corporations — private law actions based in areas of law such as tort, fraud, planning, and company law. ENJEU's action falls into the first category, and Victoria's falls into the second.

ENVironnement JEUnesse

Québec children's rights-based climate litigation claim

On November 26, 2018, a Québec non-profit organization dedicated to environment education, ENJEU filed a motion for authorization to institute a class action at the Quebec Superior Court against the federal government on behalf of Québec residents aged 35 and under. Among other relief, the claim seeks a declaration that the federal government has infringed rights protected by the Canadian Charter of Rights and Freedoms (Canadian Charter) and the Québec Charter of Rights and...

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