Quebec's Superior Court Leaves the Door Open to Canadian Climate Change Litigation

August 01, 2019

Written By Michael P. Theroux, Laura M. Gill and Stephanie Gagne

On July 11, 2019, Quebec's Superior Court rejected a class action lawsuit seeking federal action relating to climate change. The Court found that the questions raised by the plaintiff, Environnement Jeunesse, were justiciable but that a class action was not the right vehicle.

Background

As discussed in an earlier blog post, Climate Change Litigation Comes to Canada, Environnement Jeunesse, a group purporting to represent all Quebec citizens aged 35 years and under, filed a class action lawsuit in November 2018 against the federal government alleging that Canada failed to meet its greenhouse gas emission reduction targets in violation of its international obligations. The group also asserted that Canada's inaction on climate change constituted bad faith and was an unlawful and intentional interference with fundamental rights protected by the Canadian Charter of Rights and Freedom and the Quebec Charter of Human Rights and Freedoms.

Environnement Jeunesse sought a declaration from the Court that Canada violated the fundamental rights of its members by failing to implement the necessary measures to limit global warming.  Environnement Jeunesse also sought an injunction ordering Canada to cease interfering with the rights of its members and over $300 million in punitive damages. Environnement Jeunesse recognized that the payment of $300 million in punitive damages would be too onerous and requested instead that the Court the implementation of a restorative measure to slow down climate change.

In order for the claim to proceed, the action required certification by the Court. At the certification hearing, Canada argued that the issues raised by Environnement Jeunesse were non-justiciable (i.e., not appropriate for judicial determination due to their political nature) and therefore, the Court did not have jurisdiction to decide the case because it would interfere with the powers of the legislative and executive branches of government.

The Court's Decision

The Court recognized that the issues raised by Environnement Jeunesse are within the scope of the executive branch. While the Court does not normally intervene in the exercise of executive power, it should not decline jurisdiction on the basis of justiciability where a Charter violation is alleged. As a result, the Court concluded that questions raised by Environnement Jeunesse were justiciable and the Court had jurisdiction to determine those issues.

However, the Court took issue with the definition of the proposed class and rejected the claim on the basis that a class action was not the right vehicle. The Court found that, because Environnement Jeunesse did not provide a factual or rational explanation to justify the choice of age, the class was arbitrary, subjective and inappropriate, and it was impossible to objectively and rationally identify a class that would be efficient and equitable. As such, the Court stated that it expects that the issues raised by Environment Jeunesse would be subject to another action commenced by a single plaintiff.

Takeaways

Unlike several courts in the United States (including the United States Court of Appeals, the United States District Court for the Southern District of New York and the United States District Court for the Northern District of California) that have dismissed climate change claims based on the non-justiciability of the questions raised, the Quebec Superior Court determined that the issues relating to government inaction on climate change raised by Environnement Jeunesse were justiciable. Instead, the Court indicated that the biggest hurdle to a class action lawsuit relating to climate change may be the determination of an appropriate class, and suggested that a single person action will likely be a more suitable vehicle. As climate change litigation is still in its infancy in Canada, it is unclear whether other Canadian courts will follow the precedent set by the Quebec Superior Court in any future climate change class action lawsuit.

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