In Canada, there has been litigation by individuals against a private actor alleging that conduct that has contributed negatively to climate change breached the law.
The Volkswagen case was brought directly against a private company on the grounds, in part, of climate change impacts. This class action was brought on behalf of all citizens of the providence of Quebec against Volkswagen regarding the diesel motor gas emission fraud scandal, therefore seeking punitive damages under the Quebec Charter and the Quebec Environment Quality Act. In certifying the class, the Quebec Superior Court found that as Volkswagen admitted to intentional fault for exceeding regulated standards, there were grounds for the general population for punitive damages under the Quebec Charter. However, for purposes of compensatory damages, the Court found that the damage was either inexistent or hypothetical for non-owners of a diesel car.
Another case, although not specifically about climate change impacts, potentially lays a pathway to future such claims. InAraya v. Nevsun Resources Ltd, the case concerned human rights violations committed against workers at Eritrean mine that was majority-owned by a Canadian firm, Nevsun Resources. The claims for civil damages resulting from a corporation’s alleged breaches of customary international law and jus cogens, international peremptory norms, survived a procedural motion to strike. The appellate Court pointed out that arguments based on corporate actors’ violations of customary international law could be receivable. Thus, one can consider that if climate change-induced human rights violations become customary international law or jus cogens, they could have standing at Canadian Courts.
For claimants to successfully maintain any action for liability against a private actor, the claimant must first demonstrate the required interest to meet the threshold for standing to bring the case. The claimant must also demonstrate harm. In Quebec, the harm necessary to establish civil liability could be demonstrated through a claim for extra-contractual liability, advancing a proof of fault, damage, and the causal link between fault and damage. Outside of Quebec, harm necessary for tort liability, which concerns both intentional harms and negligence, would need to show the causal link between damage and wrongdoing in climate change issues.
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/canada
This country report has been produced by Mara Wendebourg, C2LI Research Assistant, Catherine Hall, C2LI Senior Research Assistant and Amelia Burnette, C2LI Legal Analyst. This summary is based on Catherine Choquette, Dustin Klaudt and Laura Shay, “Canadian Legal Options Available for Individuals to Seeking Climate Change Mitigation and Adaptation: Full of Promise or Just Hot Air?” in F. Sindico and M. Moise Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects, Springer, 2021.