⚖️ Climate action

Have you ever ended up in a situation where you needed to rewrite bylaws because a one-armed baboon named Mark escaped from a residential backyard and bit someone? Or is that too specific to the city council members in Latchford, Ontario?

Paired with the Oshawa kangaroo that spent 4 days on the lam and punched a police officer, Ontario might just need a provincial task force on fugitive exotic animals.

— Dylan Gibbs

TODAY’S DOCKET

• Climate lawsuits against Canada can proceed to trial if amended

• Veganism not protected by Ontario’s Human Rights Code

• Report on (lack of) civility

• Federal prompt payment rules take effect

ENVIRONMENT

There’s an arguable Charter claim against Canada’s climate response

La Rose v. Canada

The Federal Court of Appeal restored a glimmer of hope for two climate change lawsuits yesterday. Lower court decisions said the lawsuits didn’t raise any legally viable claims and struck them out before trial. But according to the Court of Appeal, one of the claimants’ arguments can move forward. They’ll need to make the claim more specific, but they can at least argue Canada’s response to climate change violates section 7 of the Charter.

Soft on climate? Two sets of claimants started the lawsuits: a group of young people (aged 10-19 when they started the claim) and a subset of the Wet’suwet’en First Nation. Both groups argued that Canada violated sections 7 and 15 of the Charter by failing to adequately address climate change. They don’t take issue with any one specific law — they’re effectively litigating Canada’s entire response to climate change.

Justiciable claims: The Federal Court said the claimants are litigating issues of government policy that don’t have any business in court. The Court of Appeal disagreed, saying the claims aren’t purely political, even though they raise complex policy questions. Canada enacted climate legislation and agreed to international commitments like the Paris Agreement — courts can review those concrete actions for Charter compliance.

On the merits: The Federal Court of Appeal agreed with the lower court decisions that most of the claimants’ arguments are hopeless, including the equality claim based on section 15 of the Charter. But that wasn’t the case for the section 7 claim. Even though the section 7 claim is relatively novel and needs to overcome several hurdles to succeed, it has enough merit to survive an application to strike.

There is a catch though. The claimants can’t stick with the broad challenge to Canada’s entire climate response. According to the Court, that’s “not how Charter claims work”. The claimants need to identify the specific legislative provisions they say deprive them of life, liberty, or security of the person. If they can do that, they can make it to trial.

HEARSAY ROUNDUP

Canadiana

📃 The Supreme Court of Canada released its reasons for dismissing a criminal appeal the Court heard last week. According to the Court: “Personal anecdotes have no place in closing submissions and are fundamentally at odds with the role of counsel, and particularly the role of Crown counsel.” But in this case, the Crown’s anecdote about his childhood didn’t render the trial unfair.

🤬 The Toronto Lawyers Association published a report suggesting that bad behaviour is common among lawyers. Only a minority of those surveyed said they “rarely” or “never” experienced other lawyers engaging in uncivil or unprofessional conduct during the past year. Most saw subpar behaviour at least “sometimes” — if not “frequently”.

🥗 Ontario’s Human Rights Tribunal concluded veganism isn’t a “creed” protected by human rights legislation because it isn’t connected to a Creator or higher order of existence. A firefighter advanced the claim because his employer wouldn’t accommodate his vegan diet at a remote base camp. He plans to appeal.

🏗️ The prompt payment rules for federal construction projects came into force last week. Canada now has to pay contractors within 28 days of invoicing. After getting paid, contractors have 7 days to pay their subcontractors (and so on, down the line). Existing contracts have a one-year grace period to comply. The federal regime doesn’t apply in provinces that already have comparable rules.

Beyond the border

🎄 Donald Trump’s lawyers really don’t want to work over the holidays.

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