Written By Michael P. Theroux, Laura Gill, Julia Schatz and Brendan Sigalet
U.S. courts have often relied on the political question doctrine to dismiss climate change actions. The Canadian equivalent of the political question doctrine, justiciability, has recently been considered by Canadian Court in cases involving Charter-based climate change claims.
To be justiciable, claims must be within the authority and ability of the judiciary to decide, considering the Canadian constitutional system of government. It is generally recognized that it is not the function of the courts to establish what policy or law best advances the public interest and that courts may decline to decide such issues under the doctrine of justiciability.
In three recent decisions, the Federal Court and the Ontario Superior Court of Justice adopted similar approaches to determining whether courts could properly decide Charter-based climate change claims, but with conflicting results. This is not the first time Canadian courts have considered justiciability with respect to climate change actions, as discussed in Quebec's Superior Court Leaves the Door Open to Canadian Climate Change Litigation. However, in these three recent decisions, the courts reached differing conclusions on whether a climate change based action was within the purview of the judiciary to address, suggesting there is uncertainty in Canadian law about the justiciability of Charter-based climate change claims which will need to be resolved by appellate courts.
Federal Court Decisions Finding Government Inaction on Climate Change Was Not Justiciable
The Federal Court recently considered applications by the Crown to strike two separate climate change actions on the basis that they are not justiciable.
As discussed in New Charter Litigation Seeks Stable Climate System, the group of 15 youth plaintiffs in La Rose v Canada, 2020 FC 1008 [La Rose] argued that the federal government's inaction on climate change breached their sections 7 and 15 rights because it was inconsistent with a "Stable Climate System" which the plaintiffs argue is required to ensure that those rights are protected. In that case, the Federal Court granted the Crown's request to strike the claim, holding that the plaintiffs' Charter claims were not justiciable as the government decisions in question were of a public policy nature, and therefore not suited to court intervention. The Court held that judicially supervising the adequacy of climate change legislation would take courts far beyond the limits of their institutional capacity.
The Federal Court took a similar position in Misdzi Yikh v Canada, 2020 FC 1059 [Misdzi]. In Misdzi, two individuals representing two Wet'suwet'en House groups argued that Canada's policy objectives for the reduction of GHG emissions by 2030 were insufficient, and that the failure of Canada to enact more stringent legislation breached their sections 7 and 15 Charter rights. Specifically, the plaintiffs alleged that the government did not enact legislation stringent enough to effect the policy of reducing GHG emissions to levels outlined by the Paris Agreement. Like La Rose, the Court held that policy choices must be translated into specific laws or state action in order to be justiciable, and that the plaintiffs' claim was too broad to be justiciable because it challenged governmental policy relating to GHG emissions as opposed to specific laws. The Court concluded that the issue of climate change is inherently political rather than legal, and therefore in the realm of the executive and legislature, rather than the judiciary.
Ontario Decision Finding Repeal of Climate Change Legislation Justiciable
In Mathur v Ontario, 2020 ONSC 6918 [Mathur], the Ontario Superior Court of Justice refused to strike the claim of a group of 12 to 24 year-old plaintiffs who brought an application to challenge the Ontario government's repeal of the 2016 Climate Change Act which established a cap and trade program to discourage GHG emissions. Subsequent to the 2018 Ontario election, the new government repealed the Climate Change Act, and in its place established a plan to reduce GHG emissions by 30 percent below 2005 levels by 2030.
The plaintiffs argued that the plan set a target for GHG emissions that was 15 percent lower than the target previously established by the Climate Change Act, which breached the Charter rights of Ontario youth and future generations as it would result in an insufficient reduction of GHG emissions, thereby threatening their section 7 rights to life, liberty and security of person, and their section 15 rights to equality and equal protection under the law.
In denying the Crown's application to strike the claim, the Court held that it was not plain and obvious that the claim was non-justiciable. The Court distinguished other cases where similar claims were found to be non-justiciable, including La Rose, on the grounds that those cases did not involve challenges to specific government action. The repeal of the Climate Change Act and the plan were not pure policy choices, and had been translated into law through state action. The Court stated that Charter claims are generally justiciable, given the courts' role in ensuring the validity of government action.
In each decision in these three recent Charter-based climate change claims, the Court noted that the plaintiffs' claims concerned government action that was in the realm of public policy. Traditionally, courts have held that public policy is better left for the legislature and executive branch of government rather than courts to address, as courts are not elected, and therefore are not accountable to the citizenry for making public policy decisions. Unlike the claims in La Rose and Misdzi which challenged general public policy, the claim in Mathur involved a challenge to discrete legislation. However, the differing result in Mathur demonstrates that there is some inconsistency and uncertainty in the law in Canada relating to the application of the doctrine of justiciability, and whether other climate-based claims of a similar nature are justiciable is likely to be revisited by appellate courts in future cases.