Canadian Defence Strategies to Climate Change Litigation

While many climate change litigation actions have been dismissed by the U.S. courts on the basis of the failure of plaintiffs to establish standing, including in the most recent decision of the 9^th U.S. Circuit Court of Appeals in Juliana v United States (for more information, please see our December 2019 Blakes Bulletin: Climate Change Litigation Heats Up: Emerging Trends and Analysis), such litigation continues at an increasingly rapid pace. For actions commenced against corporations and other entities in Canada, there are juristic and procedural differences unique to Canada which will assist in defending those actions.

Those include:

1. Limited Jury Trials – As opposed to the U.S., where civil jury trials are a hallmark of their judicial system, civil jury trials are rare in Canada. Other than defamation actions and other rare exceptions, civil jury trials are not available, so climate change litigation will be adjudicated before a judge. That avoids the often unpredictable and exorbitant awards arising from U.S. jury verdicts. Judges alone are particularly well-suited to consider and analyze the often-complex legal issues of causation and other matters arising from such climate litigation.

2. Limited Punitive Damages – U.S. jury awards often return verdicts with massive punitive damage components. In Canada, while some lower courts have awarded higher amounts, the highest punitive damage award upheld on appeal is only C$1-million. Moreover, the bar is generally quite high for the court to award punitive damages, and those damages are only awarded in exceptional circumstances and with considerable restraint.

3. Pain and Suffering Damages – Any climate change litigation commenced in Canada may claim damages for pain and suffering, however, the Supreme Court of Canada, in a trilogy of cases, capped such damages in the amount of C$100,000, which is subject to adjustment by inflation—adjusted for 2020 to be approximately C$390,000.

4. Loser Pays Costs – Many jurisdictions in the U.S. allow little, if any, reimbursement to successful defendants. In Canada, costs are generally awarded to the successful party. While costs are in the discretion of the judge, those costs can be significant. In addition, most jurisdictions in Canada require an unsuccessful applicant on an interlocutory motion to pay costs "forthwith and in any event of the cause." Moreover, in order to prevent otherwise impecunious plaintiffs from having a "free-option" to pursue litigation with no hope of the defendant ever being able to collect costs, a defendant can apply, in most jurisdictions in Canada, to seek security for costs which requires a plaintiff to post security—in the form of cash, letter of credit or otherwise—in order to be able to continue a lawsuit. The interim and final award of costs militate against a "free-option environment" for plaintiffs. For class actions, some jurisdictions provide immunity for costs in favour of plaintiffs.

5. Procedural Mechanisms – Most Canadian jurisdictions offer mechanisms to allow a defendant to engage various procedural strategies to combat claims. It is common in climate change litigation for defendants to be faced with lengthy claims which advance very nebulous and broad allegations of fact. Most jurisdictions in Canada allow defendants to file demands for particulars which are intended to, among other things, limit the issues to be tried and inform the defendant of the nature of the case they have to meet. Such demands are a very cost-effective way of limiting the broad allegations and associated discovery obligations required of a defendant. In addition, many other flexible procedural mechanisms, such as striking all or part of a claim, are available to strategically combat such claims.

6. Less Forum Shopping – As noted above, forum shopping in the U.S. is more prevalent, particularly where the subject-matter and historical jury awards have been favourable to a particular cause. For example, plaintiffs in climate change litigation may view California as a more favourable jurisdiction compared to other states for various reasons. Given the fact most civil trials are conducted by a judge alone in Canada, that militates against the degree to which a particular Canadian jurisdiction would appear more favourable to a particular plaintiff. That said, while the test for authorization of class actions is similar in Quebec, the procedure for authorization is such that Quebec is considered a more plaintiff-friendly jurisdiction.

7. Pre-Trial Discovery – Unlike the U.S., where litigants enjoy much broader powers to compel and obtain documentary and oral evidence, the pre-trial discovery process in most Canadian jurisdictions is far more circumscribed. That, along with other procedural mechanisms, tends to circumscribe and prevent "fishing expeditions" by plaintiffs in an attempt to discover evidence to bolster an otherwise unfounded claim.

For further information, please contact:

Dalton W. McGrath, Q.C.           403-260-9654
Renee Reichelt                          403-260-9698
Michael O'Brien                         403-260-9753

or any other member of our Litigation & Dispute Resolution group.