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. 

Indigenous Law Centre – CaseWatch Blog

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.

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