Ontario bill sparks debate on climate change litigation

Lawyers say that while a new bill being proposed in the Ontario legislature that would open the door to climate change litigation is unlikely to pass, it provides a road map for other governments to pass similar legislation in the future.

Ontario bill sparks debate on climate change litigation
John Georgakopoulos says Bill 21 will have implications one way or another, as it has sparked debate about climate change litigation.

Lawyers say that while a new bill being proposed in the Ontario legislature that would open the door to climate change litigation is unlikely to pass, it provides a road map for other governments to pass similar legislation in the future.

NDP MPP Peter Tabuns introduced Bill 21 in late March that would make it easier to sue fossil fuel companies for the harms of climate change. While observers say it is improbable that the bill will pass this legislative session, it has attracted the attention of lawyers across the country, having reinvigorated the dialogue about climate change litigation.

“Whether it goes through or not, it will have implications one way or another, at least [by] sparking the discussion,” says John Georgakopoulos, a partner and certified environmental law specialist with Willms & Shier Environmental Lawyers LLP.

Academics and activists have suggested similar legislation in the past, but this is the first such bill that has reached the floor of a legislature in Canada.

The bill, which Tabuns drafted with advice from Greenpeace Canada and the West Coast Environmental Law Association, takes the framework of tobacco industry liability legislation and applies it to climate change damage. It would impose strict liability on fossil fuel producers for “climate-related harms” if they can be found responsible for a “globally detectable level” of greenhouse gas emissions.

This means plaintiffs would not need to prove that the defendant’s actions caused or materially contributed to the harm suffered, which lawyers say is the biggest hurdle litigants face when trying to bring lawsuits against emitters in Canada today.

Climate change litigation has already been brought in the United States in recent years, as a number of municipalities in the United States are suing large oil companies for the cost of adapting cities for the impacts of climate change.

New York City filed a lawsuit earlier this year against the world’s five largest publicly traded oil companies, claiming “public nuisance” as a cause of action.

Colin Feasby, a managing partner with Osler Hoskin & Harcourt LLP in Calgary, says the Ontario bill seems based on a view expressed in the U.S. that suggests there was a conspiracy by oil companies to conceal climate change or to mislead the public.

“It’s not clear to us that those allegations resonate in Canada at all,” he says.

“. . . It seems like a piece of legislation that is drawn very much from the U.S. context that may not be as applicable in Canada and it would be unfortunate to see it proceed as it’s framed right now.”

Some lawyers say it is only a matter of time before Canada starts to see climate change litigation, but that legislation similar to what Tabuns has proposed would first need to pass.

The Liberal government in Ontario has not indicated whether it will support Tabuns’ bill, which is set to have its second reading on April 12. But observers say the bill is unlikely to pass because of its timing so close to an election and given that it is a private members bill.

“When it comes to climate change, we recognize that the costs of not acting are far greater than the costs of reducing greenhouse gas pollution,” said Anna Ballard, the press secretary for the office of Chris Ballard, the minister of environment and climate change, in an emailed statement.

“The ministry is currently reviewing the bill and taking it into consideration. We thank MPP Tabuns for his advocacy on this file.”

Ballard did not say whether the government plans to support the bill.

Tabuns says the NDP caucus has approved the bill and that, while he does not expect the Progressive Conservatives to vote for it, the Liberals are “unpredictable.”

“They’ve talked a very good game on climate change. Whether they will come forward on this or not, I can’t tell you right now,” he says.

Now that the bill has been introduced, it is expected that other provinces might explore the merits of exploring similar bills. The fact that it has been introduced suggests it would be easier for a government at another time to pass similar legislation, lawyers say.

If the legislation passes, it could open the door to a wave of climate litigation.

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