The global landscape of climate-change litigation is evolving rapidly. While climate-related litigation is nascent in Canada, the arrival of climate-change class actions is inevitable. From allegations of greenwashing against food manufacturers or mutual fund managers to claims of negligence against resource developers, few sectors are sheltered from potential allegations related to climate change. A forward-looking legal strategy that mitigates these litigation risks is, therefore, essential.
Global State of Climate-Change Litigation
Over 2,000 climate-change-related lawsuits have been commenced globally since the mid-1980s, with the vast majority of this litigation occurring in the U.S. The frequency of new climate-related class actions has accelerated significantly in the last several years. Generally, there are two broad categories of climate-change litigation: (1) public law actions against governments and public institutions and (2) private-law actions in areas like tort law, fraud, planning and corporate law. Outside the U.S., there are approximately 120 private-law cases underway against corporations. (See Climate Litigation Databases and Climate Change Laws of the World for more information on all the above.)
While most private-law actions have been directed at a handful of large companies based in the fossil fuel and carbon sector, there have been high-profile cases involving companies in the food, transport, automotive and finance sectors that have gained attention globally. The textile and shipping industry could also be subject to claims in the future.
Private-law climate-change class actions — which typically involve a representative claimant litigating on behalf of a group — are also becoming more prevalent. These claims aim to replicate the success of the most-often discussed private-law climate action to date: Milieudefensie et al. v. Royal Dutch Shell plc (2021). In Milieudefensie, a collection of seven Dutch non-governmental organizations and more than 17,000 individuals sued Royal Dutch Shell, alleging that its contributions to climate change violated its duty of care under Dutch law and international human rights obligations. The claimants were ultimately successful. The Hague District Court ordered Shell to reduce its greenhouse gas emissions by 45% by 2030, relative to reference year 2019. This included its own emissions and the end-use emissions of its products. An appeal is currently pending.
State of Climate-Change Litigation in Canada
So far, climate litigation in Canada has generally been limited to claims against governments for insufficient climate action. For example, on April 14, 2023, the Ontario Superior Court (Court) released its decision in Mathur v. His Majesty the King in Right of Ontario. In that case, seven Ontario youth brought an action against the Ontario government, arguing that Ontario’s target for reducing greenhouse gas emissions and repeal of the Climate Change Mitigation and Low-carbon Economy Act, 2016 violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter). While the Court found that the climate-related Charter issues were justiciable or appropriate for a court to decide, it ultimately held that Ontario’s actions had not infringed the applicants’ Charter rights. The Court, as part of its reasons, said that a mere change in the law could not be the basis for a Charter violation and that a freestanding positive obligation on the government to enact remedial legislation could not be imposed.
Private-law class actions are likely not far behind these types of public law claims. Indeed, municipalities in British Columbia have begun to collect and designate funding to bring a potential class action against large companies involved in the oil and gas industry, claiming damages for costs associated with climate-change adaptation or mitigation. These actions would mirror those started by municipalities in California and New York.
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