Misdzi Yikh v Canada, 2020 FC 1059

The Court struck the pleadings filed by two Wet’suwet’en hereditary chiefs (Dini Ze’) in an action seeking various forms of relief against Canada in relation to federal policy objectives for the reduction of greenhouse gases. It was found to be plain and obvious that the action could not succeed due to insurmountable issues with respect to justiciability, causation, and a lack of specificity regarding alleged constitutional violations. 

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This Statement of Claim is struck without leave to amend, as it is not justiciable, discloses no reasonable cause of action and the remedies are not legally obtainable. The Plaintiff, Dini Ze’ Lho Imggin and Dini Ze’ Smogilhgim on behalf of two Wet’suwet’en House groups of the Likhts’amisyu (Fireweed) Clan: the Misdzi Yikh (Owl House) and Sa Yikh (Sun House), [“Dini Zi’”] put forth this claim related to climate change. The Dini Ze’s position is that Canada’s policy objectives for the reduction of greenhouse gas [“GHG”] emissions by 2030 are insufficient. As a result, they say Canada’s failure to enact stringent legislation is contrary to common law principles of “public trust”, “equitable waste”, and the “constitutional principle of intergenerational equity”.

The Dini Ze argued that there is a violation of their rights under sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms [“Charter”] and that the Charter breaches are not justified under section 1. The Dini Ze’ allege that Canada has breached its duty under section 91 of the Constitution Act, 1867 by not ensuring low GHG emissions under the peace, order and good government [“POGG”] powers. By doing so, Canada is generally violating their constitutional rights by not adhering to international environmental agreements that Canada ratified. Wide ranging remedies are sought including declaratory, mandatory and supervisory orders to keep mean global warming to between 1.5 ̊C and 2 ̊C above pre-industrial level by reducing Canada’s GHG emissions. These reductions relate to Canada’s commitments made in the Paris Agreement.

The Paris Agreement is a multi-national agreement entered into by various nations in order to combat climate change and to work forward to sustain a low-carbon future. The agreement is a hybrid of both legally binding and non-binding provisions. Canada ratified the agreement on October 5, 2016 and the agreement entered into force on November 4, 2016. Canada is one of 189 countries to have ratified the agreement. The Dini Ze’ claim that Canada has repeatedly failed, and continues to fail, to fulfil its duty because they have not implemented the laws, policies, and actions needed to ensure that Canada meets its commitment made in the Paris Agreement to keep mean global warming below 2 ̊C above pre-industrial levels.

Justiciability must involve an action that has subject matter appropriate for a court to decide (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26). The POGG power of the federal government is a tool to facilitate federalism in Canada. It is generally thought of as having three branches: 1) the “gap” branch; 2) the “national concern” branch; and 3) the “emergency” branch (Peter Hogg, Constitutional Law of Canada, 5th ed supplemented (Toronto: Thomson Reuters Canada, 2019)). The POGG powers under section 91 empower the federal Parliament to enact laws in these situations. There is nothing in the law that suggests that it imposes a duty on the government, nor can it force Parliament to enact, change or repeal specific laws in the manner the Dini Ze’ suggests.

The “existence of an article in a treaty ratified by Canada does not automatically transform that article into a principle of fundamental justice” (Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62 [Kazemi]). The only binding international law in a dualist legal system like Canada’s would be a treaty plus conventional law, or proof of applicable customary international law (Nevsun Resources Ltd v Araya, 2020 SCC 5; Kazemi ). Thereby, treaties, such as the Paris Agreement, are only given effect through Canada’s domestic lawmaking process through legislation.

There cannot be a positive duty imposed by international obligations on the peace, order and good government of Canada, as the POGG power has never been used in such a way, and the language of the statute provides that even this novel attempt must fail. When the Dini Ze’ are asking this Court to rule on the constitutionality of the failure to enact what they consider adequate laws to fulfil international obligations, they are really asking the Court to tell the legislature to enact particular laws. This is not the role of the Court and thus not justiciable. Enacting laws is within the jurisdiction of Parliament. If those laws violate the constitution, then there can be striking out, reading down, or reading in of provisions.

With no specific law pointed to, and the broad claims made by the Dini Ze’, it is difficult to find sufficient legal elements in the Charter claims for them to be justiciable. The reason being that there is no impugned law or action to make a comparison necessary to do an analysis under section 1 (R v Oakes, [1986] 1 SCR 103). Complexity itself does not mean that the Court cannot adjudicate an issue; but when the issue spans across various governments, involves issues of economics and foreign policy, trade, and a host of other issues, the courts must leave these decisions in the hands of others. As well, the remedies sought to attempt to simplify a complex situation in a way that would be ineffective at actually addressing climate change given the polycentric and international nature of the problem.

The changes being asked for are more akin to a change in policy than a change in law. In Canada, any real effect on Canada’s GHG emissions will be dependent on the cooperation of the provincial governments. This Court does not have the statutory jurisdiction to mandate any such cooperation between the different levels of government meaning that any remedies would quite possibly be ineffective. This matter is not justiciable as it is the realm of the other two branches of government. This broad topic is beyond the reach of judicial interference. The issue of climate change, while undoubtedly important, is inherently political, not legal, and is of the realm of the executive and legislative branches of government. The Court strikes the claim without leave to amend because of it being plain and obvious that there is no reasonable cause of action (Federal Courts Rules; R v Imperial Tobacco Canada Ltd, 2011 SCC 42).

La Rose v Canada, 2020 FC 1008

The Court granted Canada’s motion to strike the Plaintiffs’ Statement of Claim without leave to amend. The Plaintiffs are children and youth from across Canada who allege Canada is contributing to greenhouse gas emissions that are incompatible with a stable climate system, posing a particular threat to Indigenous peoples. The Plaintiffs pleaded causes of action under ss 7 and 15 of the Charter were found not to be justiciable. A separate cause of action based on the public trust doctrine was rejected as it does not form part of Canadian law. 

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The Plaintiffs are fifteen children and youth from across Canada. Although their locations and particular circumstances vary, the Plaintiffs collectively describe that climate change has negatively impacted their physical, mental and social health and well-being. They allege it has further threatened their homes, cultural heritage and their hopes and aspirations for the future. As children and youth, they claim a particular vulnerability to climate change, owed to their stage of development, increased exposure risk and overall susceptibility.

The Plaintiffs’ Statement of Claim is particularly focused on the contribution of greenhouse gases [“GHGs”] to climate change, discussing the link between the cumulative impacts of GHGs and changes occurring in the environment. The Statement of Claim lists alleged harm by the Defendants that includes: continuing to cause, contribute to and allow a level of GHG emissions incompatible with a Stable Climate System; adopting GHG emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a Stable Climate System; failing to meet the Defendants’ own GHG emission targets; and actively participating in and supporting the development, expansion and operation of industries and activities involving fossil fuels that emit a level of GHGs incompatible with a Stable Climate System [“Impugned Conduct”]. The Plaintiffs claim various forms of relief as the impacts of climate change that are described are wide ranging, significant and felt across Canada.

The test on a motion to strike is whether it is plain and obvious that the pleadings disclose no reasonable cause of action, or that the claim has no reasonable prospect of success (Hunt v Carey Canada Inc, [1990] 2 SCR 959; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 [“Imperial Tobacco”]). The threshold to strike a claim is high and the matter must proceed to trial where a reasonable prospect of success exists.

The material facts pleaded in the Statement of Claim must be taken as true, unless the allegations are based on assumption and speculation (Operation Dismantle v The Queen, [1985] 1 SCR 441 [“Operation Dismantle”]). It is incumbent on the Plaintiffs to clearly plead the facts in sufficient detail to support the claims and the relief sought. The material facts form the basis upon which to evaluate the possibility of the success of the claim (Imperial Tobacco; Mancuso v Canada (National Health and Welfare), 2015 FCA 227). Further, the pleadings must be read as generously as possible, erring on the side of permitting a novel but arguable claim to proceed to trial (Imperial Tobacco ; Atlantic Lottery v Corp Inc v Babstock, 2020 SCC 19 [“Atlantic Lottery”]).

The presence of a Charter claim alone does not prevent the Court from considering the motion to strike (Operation Dismantle; Tanudjaja v Canada (Attorney General), 2014 ONCA 852). It is clear that a Court can hear and decide novel questions of law on a motion to strike. A claim should not survive a motion to strike based on novelty alone. Disposing of novel claims that are doomed to fail is critical to the viability of civil justice and public access (Atlantic Lottery). The Court is not convinced that it is required to allow the Charter claims to survive the motion to strike simply because they are new Charter claims. Both Charter claims, under ss 7 and 15 of the Charter, are not justiciable.

The Plaintiffs’ position fails on the basis that there are some questions that are so political that the Courts are incapable or unsuited to deal with them. The finding on justiciability is supported both by the undue breadth and diffuse nature of the Impugned Conduct and the inappropriate remedies sought by the Plaintiffs. As well, the Plaintiffs’ Statement of Claim have not pleaded material facts to support the public trust doctrine as an unwritten constitutional principle, outside its allegation that this is in fact the case. The failure to offer any material facts which, taken to be true, would support this finding in their Statement of Claim, is fatal to the proposed cause of action (Reference re Succession of Quebec, [1998] 2 SCR 217). It is plain and obvious that the claims related to the public trust doctrine fail to disclose a reasonable cause of action.

The Defendants’ motion to strike the Plaintiffs’ Statement of Claim is granted without leave to amend. The Charter claims, under s 7 and s 15, are not justiciable and otherwise disclose no reasonable cause of action. The public trust doctrine, while justiciable, does not disclose a reasonable cause of action.