Climate change-related litigation grew in volume and diversity in 2023: Osler's Jennifer Fairfax

Canada is sixth in the world for number of climate-related suits

Climate change-related litigation grew in volume and diversity in 2023: Osler's Jennifer Fairfax
Jennifer Fairfax, Osler Hoskin & Harcourt LLP

The volume and diversity of climate change-related litigation grew in 2023, trends which will continue this year, says Jennifer Fairfax, a partner at Osler Hoskin & Harcourt LLP and the firm’s chair in environmental disputes, investigations and enforcement.

According to the United Nations’ “Global Climate Litigation Report: 2023 Status Report,” 630 climate change lawsuits were filed worldwide between July 2020 and December 2022. Canada had the sixth largest portion of those actions.  

In Canada, climate-change litigation is “in its infancy,” says Fairfax. The lawsuits challenge project approvals and focus on environmental impact assessments and the jurisdiction of the federal government to legislate on climate change.

One example is the case currently before the Federal Court of Appeal that will determine whether environmental assessments must consider downstream greenhouse gas emissions. The environmental group Sierra Club Canada and eight New Brunswick Mi’gmaq communities challenged the federal approval of the Bay du Nord development project, an offshore oil and gas production facility 500 km east of St. John’s, Newfoundland. The Federal Court found it reasonable for the Impact Assessment Agency of Canada to exclude downstream emissions in the project’s assessment. The appellants argue that this effectively excludes 90 percent of the project’s environmental impact.

Mathur v. His Majesty the King in Right of Ontario, 2023 ONSC 2316 was Canada’s first Charter challenge against a governmental authority for climate change-related action to reach a full hearing on its merits, says Fairfax. The applicants in the case challenged the emissions-reduction target under s. 3(1) of Ontario’s Cap and Trade Cancellation Act, 2018. They argued that the lowered target violates ss. 7 and 15 for “Ontario’s youth and future generations.” Section 7 protects the right to life, liberty, and security of the person, and s. 15 protects equality before the law. The applicants were all between the ages of 15 and 27.

While the judge found that the provincial target “falls severely short of the scientific consensus as to what is required,” she ruled that the legislation did not impose the Charter breaches. The Ontario Court of Appeal heard the appeal of the ruling in January.

Fairfax notes that the Mathur case is seen as “at the forefront” because the court at least found that the issues the applicants raised were justiciable and not exclusively in the legislature's domain.

Fairfax expects more climate litigation and policymaking in 2024. Businesses will face more lawsuits challenging activities impacting the climate, environmental disclosures, and corporate decision-making, and she expects a continued focus on greenwashing – where businesses exaggerate the extent of their environmental efforts to attract investors and customers.

In Osler’s report “A tempest of change: impact of climate-related litigation and regulation,” the authors suggest businesses should proactively implement policies and procedures to ensure compliance with environmental disclosure and other regulatory requirements and mitigate risk. In 2024 and beyond, they predict a continued rise in lawsuits targeting environmentally harmful development and investment activities and more scrutiny of disclosure and corporate boards. They say governments will also ramp up legislative and regulatory action mandating climate-change-related disclosure by public companies.  

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