Menu

Dalhousie Law Journal

Changing the conversation one idea at a time

Archives for DLJ Student Editor

Chipping Away at Nova Scotia’s Democratic Safeguards

by Lucie Guibault

It seems that everywhere these days the fundamental principles of democracy, transparency and accountability are under attack. Unfortunately, the province of Nova Scotia is not immune from this worrying trend. Recent developments at the provincial legislature are indicative of a move towards the removal of key checks and balances on government action.

On February 18, 2025, the Nova Scotia Progressive Conservative government of Premier Houston tabled Bill 1 entitled An Act Respecting Government Organization and Administration. Key elements of this omnibus Bill risk seriously jeopardizing the government’s transparency and accountability towards its constituents, especially those relating to the proposed amendments to the Auditor General Act.

Deletion of grounds for removal of Auditor General

Let us recall that the role of the Auditor General is to audit the annual consolidated financial statements of the government that are included in the public accounts required under the Finance Act. The Auditor General may also audit the performance of an auditable entity or any activity, program, process or function of an auditable entity. The Auditor General’s independence is paramount to allow for the statutory mandate to be fulfilled and to ensure that Nova Scotians obtain a true account of how their tax money is being spent.

Clause 1 in the Bill would amend the Auditor General Act to allow for the unqualified removal of the Auditor General by the Governor in Council on the passing of a two-thirds vote of the House of Assembly. The requirement that the removal of the Auditor General be for cause or incapacity would be abrogated. This section of the Bill has already received attention from the opposition and the press.

The government’s official position is that this amendment would bring Nova Scotia legislation in line with that of other provinces. This is incorrect. Eight out of the ten provinces plus the Federal level allow for the removal of the Auditor General either for cause, or for cause or incapacity. Manitoba and Alberta are the outliers. Nova Scotia would become one of the outliers. This change would give unbounded discretionary power to the Governor in Council to put an end to an Auditor General’s term. It risks having a chilling effect on the Auditor General, who may become very hesitant to investigate or report on issues seemingly unfavourable to the sitting government. This is not the only problematic proposed amendment to the Auditor General Act, however.

Designation of privileged records or information

To fulfil the statutory mandate, the Auditor General is given the right of unrestricted access, at all times, to all records of any auditable entity, including the right to copy such records and to any things or property belonging to or used by any auditable entity.  This right of access is recognized “[n]otwithstanding the Freedom of Information and Protection of Privacy Act or any other legislation, and notwithstanding any other rights of privacy, confidentiality or privilege, including solicitor-client privilege, litigation privilege, settlement privilege and public interest immunity.”. The current Act affirms that “[a] disclosure to the Auditor General under this Section does not constitute a waiver of privilege or immunity including solicitor-client privilege, litigation privilege, settlement privilege or public interest immunity.”

Remarkably, and unique to Nova Scotia, the Act further elaborates on the designation of privileged records and information. These provisions would undergo significant changes if the Bill is adopted. According to current subsection 14(6) of the Act, “[w]here the Auditor General and the auditable entity are unable to agree as to what records are privileged records, either party may make an application to the Supreme Court to determine the matter.” Where an application has been made to the Court, subsection (7) specifies that the record in question is not to be disclosed until a determination has been made by the Supreme Court authorizing such disclosure. Clauses 2 and 3 of the Bill would repeal subsections 14(6) and (7) and add a new section 14A.

Under proposed section 14A, the determination process would be concentrated in the hands of the Attorney General. Subsection (1) states that “[w]here the Attorney General determines that, in the Attorney General’s opinion, any record or information…, the Attorney General may, by order in writing, designate the record or information…” Doubling down on subsection (1), subsection (2) provides that “[a]n order under subsection (1) is, for the purpose of this Act, conclusive proof that the record or information described therein is subject to solicitor-client privilege, litigation privilege, settlement privilege or public interest immunity’. In other words, the Attorney General has the sole discretion to make the determination and once this determination is put in writing, it is evidence that the records and information are privileged. Pursuant to subsection (3), the order is subject to judicial review on a standard of reasonableness. Subsections (4) and (5) give the Governor in Council the power to make regulations respecting the Attorney General’s determination and designation of records.

It seems highly incongruous that the Attorney General, as a member of Cabinet, would be the sole person entrusted with the responsibility of determining whether records and information are privileged or not. Since a disclosure to the Auditor General does not constitute a waiver of privilege or immunity, the main consequence is that records and information that are designated as privileged would not be amenable to public disclosure as part of the Auditor General’s report. In any case, should the Bill be adopted in its current state, it would make the entire process surrounding the determination and designation of records and information much more opaque and one-sided than it currently is.

Elimination of Pre-Budget Revenue Estimates

Since at least as far back as 2010, section 20 of the Auditor General Act requires that the Auditor General conduct a review, in accordance with the assurance standards for review engagements of the Chartered Professional Accountants of Canada, of the estimates of revenue used in the preparation of each budget address of the Minister of Finance to the House of Assembly. The findings of the review must be submitted in form of a report to the House of Assembly, be tabled with the budget address and provide an opinion as to whether the revenue estimates are reasonable and presented fairly. Bill 1 would repeal this section entirely.

While this provision is perhaps unique to Nova Scotia, compared to other equivalent Canadian statutes, it does provide guidance to the government at the crucial moment of preparing and presenting its annual budget to the Assembly. These revenue estimates can provide useful support for the government budget options and decisions. They allow constituents to gain a better understanding of the government budget plans and to see whether the plans are feasible and how would they impact public finances. Since making such revenue estimates has been part of the Auditor General’s mandate for the past fifteen years, it seems odd to remove this section altogether from the Act. Without it, the operations of the government will be less transparent.

Possibility to request the confidentiality of the Auditor General’s report

Perhaps the most astonishing part of Bill 1 is the proposed insertion of a new section 21A in the Auditor General Act. This elaborate section would also be a unique feature of the Nova Scotia statute. Proposed subsection 21A (1) provides that “[w]here a member of the Executive Council having responsibility for the subject-matter of a report under Section 21 determines that, in the opinion of the member of the Executive Council, the report, or any part thereof, contains information that in the interests of public safety or otherwise in the public interest should remain confidential, the member of the Executive Council may request that the Auditor General submit the report confidentially to the House.”

Proposed section 21A counts a total of ten subsections, detailing the manner in which the Auditor General’s report is to be submitted confidentially to the Speaker of the House and subsequently, how that report is to be delivered confidentially to the members of the House. Without reproducing the entire provision, it is sufficient to mention that the report could be sent to the Public Accounts Committee for the determination of the confidential character of a part or the whole of the report. Moreover, the House of Assembly Management Commission would be granted regulatory power respecting the disclosure of information in a report that has been submitted confidentially. Finally, except in accordance with the regulations and subject to subsections (5), (7) and (8), no person would be allowed to disclose information in a report that has been submitted confidentially.

It seems not only contradictory, but down right incomprehensible, to mandate the Auditor General with the task of auditing the annual financial statements of the government and the performance of auditable entities as a means to ensure transparency and accountability towards the citizenry, while allowing the report to be kept confidential. This provision beats the purpose of the entire Act.

If Bill 1 were adopted, it would mark a significant and worrisome departure from standard practice regarding the oversight of government operations by the Auditor General. No compelling reasons have been given justifying these proposed legislative changes. They should be rejected. Does the Nova Scotia government have something to hide?

Categories: Uncategorized

Bill S-285: 21st-Century Business Act – Is Canada Finally Catching Up with the Rest of the World? 

By: Akinwumi Ogunranti

Canada has been criticized for failing to meet international law’s obligations to protect human rights, including as prescribed by soft law under the UN Guiding Principles on Business and Human Rights (UNGPs). Against this background, this short piece discusses the recent Bill S-285, which seeks to amend the Canada Business Corporations Act (CBCA) to include a corporate purpose for the benefit of the environment and society. The Bill, if signed into law, will follow contemporary legislative developments in the business and human rights (BHR) field that are hardening the UNGPs. However, without strong government support, the Bill may die naturally or result in weak legislation due to corporate capture.  

Bill S-285

Bill S-285 proposes to define corporations in terms of their purpose by amending Article 14 of the CBCA. The purpose of the modern corporation would be: 

  • to pursue its best interest while also operating in a manner that
    (a) benefits the wider society and the environment in a manner proportionate to its size and the nature of its operations; and
    (b) minimizes any harm that the corporation causes to the wider society and the environment, with the objective of eliminating such harm. 

The Bill also amends Section 6(1) of the CBCA to allow corporations to include the purpose in the articles of association, which become contracts between corporations and their shareholders and between shareholders themselves. The Bill would expand the duties of directors and officers by amending Section 122 (1) of the CBCA. Directors and officers would not only have a duty to act in the best interest of the corporation, but they must also pursue those interests in a manner that benefits society and the environment. They must also minimize and remediate harm whenever it occurs. Unlike the present version of the CBCA and the case law, which gives directors discretion to consider stakeholder interests, the proposed amendment makes stakeholder consideration compulsory—a move toward a stakeholder governance model. 

The Bill also contains disclosure requirements. The proposed Section 172.2 (1) of the CBCA requires corporations to file an annual report demonstrating their compliance with the corporation’s purpose. The report will include corporate measures taken to impact society and the environment and to minimize and remediate harm. This report is also required to be filed according to prescribed standards, including the Corporate Sustainability Reporting, Global Reporting Initiative, and the B Impact Assessment. The report would also be a public record issued to shareholders and the public. 

In terms of enforcement, the Bill offers a remedy to rightsholders who believe the corporation is not run according to its purpose. It proposes amending Section 239 of the CBCA (derivative action). Presently, complainants using this procedure must satisfy the court that they have given at least 14 days’ notice to the Corporation, that they are acting in good faith, and that the application is in the corporation’s interest. However, the Bill seeks to replace the last condition. Complainants must now show that the application is consistent with the corporation’s purpose relating to human rights, the climate, and the environment. Complainants need not have the best interest of the corporation at heart; they only need to be interested in the corporation’s commitment to society and the environment. This interpretation is consistent with the Bill’s proposal of a “proper person.” The Bill proposes adding another sub-section to section 239, which defines a proper person as someone pursuing the interests of the wider society or the environment. Therefore, a proper person includes rightsholders. 

Significance and potential challenges of Bill S-285

Since the UNGPs’ endorsement in 2011, it has influenced legislative developments in the form of mandatory human rights due diligence in some countries, including France, Norway, and Germany. The EU recently adopted the Corporate Sustainability Due Diligence Directive (CSDDD) in 2024 to further the UNGPs’ objectives. Canada has been lagging in these normative developments. Previous legislative proposals to join this trend have not progressed well. For example, Bill C-262, the Corporate Responsibility to Protect Human Rights Bill, which proposes human rights due diligence for Canadian corporations operating abroad, has not proceeded beyond the first reading in the House of Commons since 29 March 2022, when it was first introduced. There was a silver lining with the passing of the Fighting Against Forced Labour and Child Labour in Supply Chains Act in 2023. However, the Act has a limited scope because it only imposes reporting obligations on multinational corporations to prevent, mitigate, and remediate business risks related to forced labour and child labour. 

Building on this latest legislation, Bill S-285 seeks to change the corporate governance model in Canada. By amending the CBCA, all corporations registered under the CBCA would be required to change their corporate purpose. Similarly, provinces that model their corporate legislation along the CBCA may further amend their legislation to align with the CBCA. This top-down approach will create a uniform legislative regime in Canada.  

One significant aspect of the proposed amendment is that it moves the Canadian corporate governance model toward a stakeholder approach. The proposed amendment goes beyond the minimalist provisions of the UNGPs. Pillar II of the UNGPs provides that corporations should avoid infringing on human rights and address violations whenever they occur without imposing any positive obligations on corporations. Expectedly, this has generated a debate about whether multinational corporations have both positive and negative obligations not only to prevent human rights abuse but also to promote human rights. The proposed Bill in Canada supports the argument that corporations, indeed, have positive obligations.  

The Bill also has some transnational implications as a federal legislation. The amendment seeks to cover subsidiaries of corporations incorporated in Canada. For example, the proposed amended section 172(2)(1) allows the corporation and its affiliates (including subsidiaries) to file an annual compliance report. Similarly, the proposed section 239(2)‍(c) allows rightsholders to file a derivative action based on either the purpose of the corporation or its subsidiary. Therefore, in cases where subsidiaries of Canadian parent companies operate outside Canada, in Africa for example, any Canadian resident or affected rightsholders in Africa can file a derivative action to enforce corporate obligations towards the society and the environment. This, in effect, supports transnational litigation because the definition of a proper person under the Bill is wide. Therefore, litigants in Canada and abroad jump the locus standi hurdle when filing a derivation action. 

If the Bill succeeds, Canada will join other countries, including France, that have amended their corporate laws to redefine corporate purpose. Indeed, the Bill is modeled on the French legislation and the UK Better Business Act initiative, which seeks to amend Section 172 of the UK Companies Act. The Bill is similar to the French legislation because it creates a general commitment for all corporations instead of creating optional corporate vehicles to promote corporate social responsibilities like in the United States. Scholars are optimistic that the French model has the prospect of providing new legal foundations for corporate responsibility and redefining “the enterprise as not only an economic organization or a productive entity, but more fundamentally a space for innovative collective action.” In sum, if signed into law, the Bill becomes a foundation upon which Canada’s business human rights regime can be built. 

However, the Bill has some implications for businesses. It imposes additional fiduciary duties on directors. This could lead to complex decision-making, which may disincentivize some individuals from accepting director positions. It also seeks to radically change the corporate governance model (shareholder primacy), which has historically enjoyed less stakeholder supervision. The new model (stakeholder governance) opens corporations to potential suits from litigants within and outside Canada. Finally, the Bill indirectly introduces human rights due diligence (HRDD) by requiring corporations to file annual reports on how they prevent environmental abuse and promote societal flourishing. According to Pillar II of the UNGPs, an authoritative standard, the only way to show corporate responsibility is through HRDD, which requires identifying, preventing, mitigating, and remediating business risks affecting third parties. Therefore, if corporate annual reports are to meet international standards, they must reflect the characteristics of HRDD. 

Considering the implications for businesses, if the history of mandatory human rights due diligence legislation and the Corporate Sustainability Due Diligence Directive in other countries is anything to go by, businesses and industry associations will likely resist this change or weaken it. The corporate strategy against legislation of this nature is to first prevent the discussions from taking place, then undermine efforts to enact the legislation, and, failing that, weaken the final product. This is not to conclude that all business communities oppose and weaken corporate legislation, but as Daniel Kinderman noted, any transition from a voluntary private governance model to a mandatory one like the proposed Bill will likely be resisted. One way to avoid business opposition is to include them in the law-making process.  

However, this may have unintended consequences as it may lead to corporate capture that may still weaken the legislation. For example, although experts, including Barnali Choudhury and Penelope Simons, testified before Canada’s parliament that Bill S-21, now the Fighting Against Forced Labour and Child Labour in Supply Chains Act, is merely a reporting legislation without the prospect of driving corporate accountability, the Parliament, with the support of the Mining Association of Canada, still passed the weak legislation. It is instructive to note that the sponsor of Bill S-211, a member of the Senate, is now sponsoring Bill S-285. Considering the history of Bill S-211, the outcome of Bill S-285 may not be different if it passes at all. Indeed, it has been noted that bills sponsored by individual senators “do not have the backing of government bills and have historically had less success in becoming law.”  

Therefore, strong political support is needed to limit corporate influence and enhance the prospect of passing the Bill. The government of Canada, other senators, and members of parliament must support this Bill because it is of such national importance that it calls into question Canada’s international obligations to protect human rights. Without compromising on its international obligations, the Parliament must facilitate consultation with rightsholders, businesses, and industry associations to create clear guidelines that make compliance with the Act easy for corporations and access to justice realistic for rightsholders. In sum, Canada must find a way to embed corporations into society. 

Conclusion

Instead of a conclusion, I offer thoughts about future directions. This piece examined the latest legislative effort to impose environmental and human rights obligations on Canadian corporations through Bill S-285, which seeks to amend the CBCA. According to the Bill, in addition to the directors’ role of pursuing corporations’ interests, directors must also consider the interests of the environment and society. The Bill also empowers rightsholders to enforce corporate obligations through a derivative action. I argued that the Bill sets Canada on the right course in alignment with its international obligations to protect human rights. If passed into law, the Bill will redesign the current corporate governance model from a shareholder primacy to a stakeholder model. It will also increase the prospect of access to remedy for rightsholders. Although the CBCA amendment is not a substitute for mandatory human rights due diligence legislation, the amendment, if successful, moves Canada closer to this goal. At the same time, it will likely be resisted by the corporate class, which may lead to its death or weakening. To rescue the Bill from corporate capture, the Bill must be backed by strong political support. Only then will Canada be catching up with the rest of the world. 

Akinwumi Ogunranti is an Assistant Professor at Robson Hall, University of Manitoba, Manitoba. He holds a BL (University of Ilorin, Nigeria), LLM (Schulich School of Law, Dalhousie University, Canada), and PhD (Schulich School of Law, Dalhousie University, Canada). 

DLJ Podcast – Episode 42 – Evan Vipond & Pierre Cloutier de Repentigny – Trans Inclusive Access to Justice

Join student editor, Jaime, for a discussion with Evan Vipond, a PhD Candidate in Gender, Feminist and Women’s Studies at York University, and Pierre Cloutier de Repentigny, an Assistant Professor at the Department of Law and Legal Studies of Carleton University. Jaime speaks with Evan and Pierre about their article in the Dalhousie Law Journal, titled, “Searching for Justice: Moving Towards a Trans Inclusive Model of Access to Justice in Canada.” The conversation raises important critiques about current access to justice approaches, but also provides insight into what structural changes are required to address access to justice issues facing trans people.

Listen to Episode 42 on Spotify.

DLJ Podcast – Episode 41 – Prof Sheila Wildeman – Critical Pathways to Disability Decarceration

Join Lan Keenan, student editor at the Dalhousie Law Journal, as they sit down with Associate Professor Sheila Wildeman of the Schulich School of Law at Dalhousie University for a thought-provoking discussion related to Sheila’s recent publication “Critical Pathways to Disability Decarceration” in the feminists@law journal. The conversation navigates the intricate intersections of critical disability studies and anti-carceral movements, inspired by pivotal discussions at the Law and Society Association’s Annual Meeting in May 2021, themed “Decarcerating Disability.”

DLJ Podcast – Episode 40 – Prof. Joanna Erdman – Abortion At-Home and At-Law During a Pandemic

Join student editor, Amelia, for a discussion with Professor Joanna Erdman of the Schulich School of Law and the McBain Chair in Health Law and Policy. Amelia and Professor Erdman talk about her chapter “Abortion At-Home and At-Law During a Pandemic” in COVID-19 and the Law: Disruption, Impact and Legacy, edited by Glenn Cohen, Abbe R. Gluck, Katherine Kraschel, Carmel Shachar (Cambridge University Press). The conversation touches on the central themes of the book chapter, connecting them to a recent string of prosecutions in the UK related to home abortions during the pandemic, public pushback, and the future of abortion law and policy.

 

DLJ Podcast – Episode 39 – Prof. Colin Jackson – Articulation of OSP in Deans Knight

Join student editor, Christian, for a discussion with Associate Professor and Associate Dean (Graduate Studies) Colin Jackson of the Schulich School of Law at Dalhousie University. Christian and Colin discuss his recent article in Perspectives on Tax Law & Policy, titled, “Articulation of OSP in Deans Knight”. The conversation covers current interpretation of the general anti-avoidance rule and touches on how imminent changes to the rule might shape legal disputes.

 

DLJ Podcast – Episode 38 – Prof. Anthony Rosborough – Toward a Canadian Right to Repair

Join student editor, Charlie, for a discussion with Assistant Professor Anthony Rosborough of the Schulich School of Law and the Faculty of Computer Science at Dalhousie University. Charlie and Anthony talk about his recent article in the Berkeley Technology Law Journal, titled, “Toward a Canadian Right to Repair: Opportunities and Challenges.” The conversation underscores the importance of a right to repair for Canadians by approaching the issue through both an IP and competition lens.

 

DLJ Podcast – Episode 37 – Dr. Agnieszka Doll – Legalization of Psychedelics in Canada

Join student editor, Patricia Doiron, as she sits down with Dr. Agnieszka Doll to discuss the story of the legalization of psychedelics in Canada. Dr. Doll is a socio-legal scholar in law, health, science and regulation and an Assistant Professor at the Department of History and Sociology at the University of British Columbia Okanagan. The discussion looks at the network of actors who have played various yet intersecting roles in the process of psychedelic legalization in Canada, the Food and Drugs Act, and regulatory pathways which advocacy regulatory efforts have been streamlined in Canada.

DLJ Podcast – Ep 36 – Melisa Marsman – A Critical Race Analysis of the Nova Scotia Land Titles Clarification Act

Join student editor, Gavin, as he sits down with Professor Melisa Marsman of the Schulich School of Law to discuss her forthcoming article, “Good Deeds? A Critical Race Analysis of the Nova Scotia Land Titles Clarification Act.” Gavin and Melisa discuss the title insecurity faced by African Nova Scotian communities, and examine Nova Scotia’s efforts on land titles clarification through the lens of interest-convergence theory.

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.