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Goldilocks Pleading: Framing a “Just Right” Claim in Rights-based Climate Change Litigation in Canada

Goldilocks Pleading: Framing a “Just Right” Claim in Rights-based Climate Change Litigation in Canada

By: Professor Camille Cameron, K.C., Professor, Schulich School of Law, Dalhousie University; Riley Weyman, Pape Salter Teillet LLP, Toronto, Ontario; Claire Nicholson, JD 2024, Schulich School of Law, Dalhousie University. We thank the Canadian Foundation for Legal Research for their financial support for this project.

 A current feature of climate change litigation in Canada is claims based on violations of the Canadian Charter of Rights and Freedoms (the “Charter”). We have written about these claims in Legal Hurdles and Pathways: the Evolution (Progress?) of Climate Change Adjudication in Canada, (2024) 47:2 Dal LJ, forthcoming, and available here. In that article, we examine various aspects of these claims and related jurisprudence, including justiciability and the applicability of sections 7 and 15 of the Charter.

In this blog, we will look at two procedural issues that arise in these cases, one relating to pleadings and the other to remedies.

The challenges of drafting appropriate pleadings in complex cases like Mathur1 and La Rose2 figure prominently in both judgments. In our analysis of Mathur, we describe the pleadings challenge the applicants faced as a “heads you lose, tails you lose” situation. The applicants had to plead narrowly to avoid dismissal for non-justiciability; this was a necessary strategic choice considering the state of the law in Canada regarding justiciability and the viability of a positive rights claim under section 7 of the Charter. The applicants framed their case narrowly with reference to Ontario’s Cap and Trade Cancellation Act, SO 2018, c 13 (the “CTCA”), and the emissions targets set pursuant to the CTCA (the “Target”), rather than as a broader positive rights case challenging a wide range of government action and inaction. This strategic choice allowed them to overcome the justiciability hurdle, but limited the scope of government action the court could consider when evaluating their Charter claims.3

Additionally, the Mathur applicants framed their section 7 argument as a negative rights challenge and only made positive rights arguments in the alternative. The court “disagree[d] with the Applicants that this is not a positive rights case” and analysed the applicants’ claim on the basis of positive rights. While the court found the applicants had made “a compelling case that climate change and the existential threat that it poses to human life and security of the person present ‘special circumstances’ that could justify the imposition of positive obligations under section 7,”4 the court determined that a new test would “very likely” be required to support such a positive rights claim.5 As the applicants’ primary position was that this was not a positive rights case, they did not address the issue of a new test for a positive rights claim in any detail, and the court was unwilling to establish a new test without argument on the matter. This was a hearing on the merits, and a pleadings amendment was not an option. The case was dismissed.

In La Rose, the claimants found themselves in a similar situation, although for different reasons. While in Mathur the applicants’ narrow pleadings limited their Charter claims’ success, in La Rose, at the hearing on the motion to strike, the Federal Court (“FC”) dismissed the case as non-justiciable, in part because the pleadings were “overly broad and diffuse.”6 On appeal, the Federal Court of Appeal (“FCA”) took a different approach. While it accepted that the pleadings were too broad and diffuse to meet “the threshold standard in constitutional litigation that specific laws or actions be targeted,” it found the claimants’ section 7 claims were justiciable and therefore gave them leave to amend the pleadings “to address this lack of focus.”7

The FCA in La Rose was alert to the risk that, just as Canada had argued (successfully) at the motion to strike that the pleadings lacked sufficient focus, they might at trial rely on an opposite argument that the pleadings, post-amendment, were now too narrow.8 They might, for example, argue that as there are foreign sources of GHG emissions, the narrow pleadings fail because there is no link between the harm and Canada’s conduct.9 The FCA described this as the possibility of a “shell game” and a “now you see me, now you don’t” situation, according to which a government could move to strike a claim on the basis that pleadings are too broad, or alternatively too narrow.10 The FCA identified as one response to this concern that the possibility of other causes of the alleged infringement does not rule out a constitutional challenge.11

Another related procedural issue in La Rose relates to remedy. The claimants argued that their claims for relief—a series of declarations, mandatory orders, and supervision—were conventional legal remedies to correct breaches of section 7 of the Charter. On the motion to strike, the FC concluded that the remedies requested “overreached the institutional competence of the Court.”12 This is another reason why the FC granted Canada’s motion to strike for non-justiciability. The FCA rejected this approach, cautioning that “overly focusing on remedies at the justiciability stage may place ‘undue and unwise limits’ on judicial oversight of the law.”13 Referring to the Khadr case, the FCA noted that declaratory relief is an option in such circumstances.14 In Boundaries of Judicial Review, Sossin gave a similar caution: “[w]here the concern over another branch of government relates to implementing a remedy, the doctrine of justiciability should not be invoked.”15 In Sossin’s view, courts are “best placed to determine rights and obligations through declaratory judgments which governments must then implement.”16

A variation on this approach to declaratory remedies in rights-based climate change claims was proposed by the applicants at the Mathur appeal hearing. That appeal was heard on January 15, 2024, by the Court of Appeal for Ontario. Counsel for the applicants proposed a “declaration plus” remedy, meaning that not only could the court declare that Ontario’s Target was inadequate and violated the applicants’ Charter rights, but it could also supervise Ontario’s steps to remedy the violation.17

The applicants relied for this proposed remedy on Professor Kent Roach, Remedies for Human Rights Violations: A Two Track Approach to Supra-national and Domestic Law.18 In his book, Professor Roach describes a world “rich in rights and poor in remedies.”19 The “declaration plus” remedy has the potential to strike a balance between ensuring that a court does not exceed its competence while at the same time providing a safeguard that the required institutional reform will happen.

Mathur and La Rose are developing and clarifying the law in what is for Canada a new type of claim. They provide valuable guidance to future potential claimants on how to frame their claims. For example, at least at this stage and subject to further appeals, the scope of justiciability in these kinds of climate change cases in Canada is now clearer. One possible outcome of this increased clarity is that courts might be less inclined to conflate remedies and justiciability at the motion to strike stage. Even more noteworthy in our view are some strong comments made by the Mathur and La Rose courts about section 7 of the Charter and positive rights. In both cases the courts suggested that the current and potential effects of climate change may present “special circumstances” that could justify the imposition of positive obligations under section 7 of the Charter.20 Future potential claimants will need to grapple with how to properly frame a positive rights claim, including—as suggested by the Mathur court—potential modifications to the section 7 test to support such a claim.

  1. Mathur v His Majesty the King in Right of Ontario, 2023 ONSC 2316 [Mathur].
  2. La Rose v Canada, 2023 FCA 241 [La Rose FCA].
  3. Mathur, supra note 1 at para 120.
  4. Ibid at para 138.
  5. Ibid.
  6. La Rose FCA, supra note 2 at para 46; La Rose v Canada, 2020 FC 1008 at paras 39-41 [La Rose FC].
  7. La Rose FCA, supra note 2 at paras 130, 133. The section 15 Charter claim was not successful.
  8. Ibid at para 133.
  9. Ibid.
  10. Ibid.
  11. Ibid at para 134.
  12. Ibid at para 46, citing La Rose FC, supra note 6 at paras 8-10, 40, 46.
  13. La Rose FCA, supra note 2 at para 51.
  14. Ibid at paras 46-48; Khadr v Canada (Prime Minister), 2010 SCC 3.
  15. Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed (Toronto: Carswell, 2012) at 247.
  16. Ibid at 216.
  17. This information is derived from the livestreamed appeal hearing.
  18. Kent Roach, Remedies for Human Rights Violations: A Two Track Approach to Supra-national and Domestic Law (Cambridge, UK: Cambridge University Press, 2021).
  19. For a summary of a roundtable discussion of Professor Roach’s proposed “declaration plus” remedy, see Duncan Crabtree, “Roundtable: Professor Kent Roach’s Vision for Human Rights Remedies,” (last visited 7 February 2024), online (blog): <ihrp.law.utoronto.ca/roundtable-professor-kent-roachs-vision-human-rights-remedies> [perma.cc/E7B8-FHPB].
  20. La Rose FCA, supra note 2 at para 116; Mathur, supra note 1 at para 138.