Europe’s highest human rights court recently found that the Swiss government violated the rights of its citizens by failing to do enough to combat climate change. The case, Verein Klimaseniorinnen Schweiz and others v. Switzerland [Klimaseniorinnen], is the first instance of a court finding that climate inaction violates human rights.[1] The decision will undoubtedly be looked to as a guide for future climate change cases against governments in other jurisdictions. In this blog, we explore whether and how this case may be used to spring board further climate change litigation in Canada and the potential trickle-down effects of this on industry.

Switzerland’s Climate Polices Violate the Right to Life

After exhausting all national remedies in Switzerland, an association of over 2,000 senior women known as KlimaSeniorinnen, or Senior Women for Climate Protection (the “Applicants”), brought an action against the Swiss government in the European Court of Human Rights (the “Court”). The Applicants claimed that Switzerland’s climate inaction put them at risk of dying from excessive heat caused by climate change, a risk to which they were especially vulnerable given their age.   

The Applicants argued that Switzerland’s climate policy was ineffective and lacking in concrete measures. It failed to prevent a global temperature increase of more than 1.5 degrees Celsius above pre-industrial levels. This, according to the Applicants, was a violation of their human rights protected by the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”).

On April 9, 2024, the Court released a decision in favour of the Applicants. The Court ruled that Switzerland had indeed violated the Applicants’ right to respect for private and family life protected by Article 8 of the Convention by virtue of its inadequate climate policies. Article 8 of the Convention was engaged not only because of actual adverse effects on individuals’ health, well-being and quality of life, but also due to the risk of those effects.[2]

Given “the pressing urgency of climate change and the current absence of a satisfactory regulatory framework”, the Court concluded that the mere legislative commitment to adopt the concrete measures “in good time” was not sufficient.[3] It did not satisfy Switzerland’s duty to provide effective protection to individuals within its jurisdiction from the adverse effects of climate change on their life and health.[4] By “failing to act in good time and in an appropriate and consistent manner”, Switzerland exceeded the discretion afforded to national authorities in devising the appropriate measures to combat climate change.[5] 

The Court ordered Switzerland to take immediate action to change its climate policies with a view to reaching net neutrality within the next three decades.[6] Switzerland was also ordered to pay the Applicants 80,000 euros to cover their costs and expenses. As this decision comes out of Europe’s highest human rights court, it cannot be appealed and now serves as a binding precedent for all 46 European countries that are signatories to the Convention.

Impacts of KlimaSeniorinnen in Canada

Canadian Government Liability

As KlimaSeniorinnen is the first decision of its kind to succeed, it is expected to influence litigation strategies of climate change activists on a global scale. While the decision will have the greatest impact on European countries that are directly bound by it, the underlying principle that climate change poses a threat to the human right to life applies everywhere.

In Canada, there is increasing litigation geared towards achieving constitutional recognition of the right to a healthy environment by interpreting the right to life, liberty, and security of the person—enshrined in section 7 of the Canadian Charter of Rights and Freedoms [the “Charter”]—to include the right to a healthy environment. Section 7 of the Charter is the closest equivalent in Canadian law to Article 8 of the Convention, which was the basis for liability in KlimaSeniorinnen. Both section 7 of the Charter and Article 8 of the Convention protect the human right to life. While a climate change action grounded in section 7 of the Charter has yet to succeed on its merits, courts across Canada have held that climate change lawsuits are justiciable, meaning that they are suitable for determination by a court.[7]

Both Switzerland and Canada are signatories to the Paris Agreement. In KlimaSeniorinnen, the Court attributed fault to Switzerland notwithstanding the global nature of climate change based on “the principle of common but differentiated responsibilities and respective capabilities of states”, which has been reaffirmed in the Paris Agreement.[8] International commitments under the Paris Agreement to limit the rise in global temperature “must inform the formulation of domestic policies”, reasoned the Court in KlimaSeniorinnen. This principle could similarly apply to hold the Canadian government liable, given that the Paris Agreement forms part of Canadian law as enshrined in section 7 of the Canadian Net-Zero Emissions Accountability Act.[9]

There are, however, two primary hurdles to a case like KlimaSeniorinnen succeeding in Canada, based on the current legal landscape. First, Canadian courts have thus far been unwilling to hear diffuse climate change claims that point to a confluence of policies. The Federal Court of Appeal recently held that, in the context of climate change claims grounded in the right to life, liberty, or security of the person, the claim must point to specific laws or policies which deprive citizens of this right.^[10] This means that if an action like KlimaSeniorinnen were brought in Canada, it would likely not be allowed to proceed to trial unless the claim pointed to specific actions or policies that constitute the violation. Given the multi-faceted nature of Canada’s climate change policies, pointing to a specific failed law or policy will be challenging.

The second hurdle to bringing a claim similar to KlimaSeniorinnen in Canada is the idea of a “positive obligation”. In KlimaSeniorinnen, the Court found that Article 8 puts a positive obligation on the government to put in place the relevant legislative and administrative framework designed to provide effective protection of human health and life. This requires “taking practical measures to ensure the effective protection of the citizens, whose lives might be endangered by the inherent risks”.[11] It was this positive obligation that led to a finding of liability. Comparatively, the Canadian Charter has never been found to impose positive obligations on the Canadian state. While Canadian courts have left open a future possibility of imposing a positive obligation on the state to sustain life, liberty, or the security of the person, this has yet to occur.[12]

The Trickle-Down Effect on Corporate Liability

The increasing feasibility of climate change claims grounded in the Charter—which only applies to government action—does not directly bear on the power to bring cases against corporate polluters for climate change impacts. Nevertheless, an increase in the risk of a successful claim against the federal or provincial governments for failing to implement effective and timely climate-related laws and policies is likely to result in an increased level of regulation and regulatory scrutiny.  The Federal Court of Appeal recently held that the commitments in the Paris Agreement are legally defined, objective standards against which climate-related Charter claims can be assessed.[13]

On a global scale, the furthest a court has gone in holding a corporation liable for its emissions is in Milieudefensie et al. v Royal Dutch Shell (“Milieudefensie”).[14] Milieudefensie garnered international attention as an example of how the Paris Agreement can be implemented and enforced by expanding obligations on private companies. While it is the first—and so far the only—case where a private company has been ordered to comply with the Paris Agreement, Milieudefensie is part of a trend whereby “a growing number of cases have emerged that name private parties as defendants and demonstrate an increasing diversity of legal strategies that use a variety of theories”.[15]

What does this mean for corporate liability for climate impacts in Canada? Given that obligations under the Paris Agreement lie first and foremost with the state, it is unlikely that corporate liability for breaches of the Paris Agreement will be found before government liability. Indeed, corporate liability was not found in the Netherlands until after the state had already been ordered to reduce GHG emissions. [16] Canada has not yet been held liable for international climate change agreements and, the time of writing, there are no Canadian actions, either by the government or private citizens, that have resulted in holding a company accountable for emission-based climate change impacts.  This may change if climate change litigation continues to be advanced globally and creative Canadian litigants push either or both the courts (through incremental changes in common law) or governments (through legislation) to hold emitters liable. Risk management strategies in this regard are complex and industry specific, but should be considered as part of good corporate governance before claims are advanced and need to be defended.

[1] Verein Klimaseniorinnen Schweiz and others v. Switzerland, No 53600/20 (9 April 2024) [Klimaseniorinnen].

[2] Klimaseniorinnen, supra note 1 at paras. 435, 514.

[3] Klimaseniorinnen, supra note 1 at para. 567.

[4] Klimaseniorinnen, supra note 1 para. 567.

[5] Klimaseniorinnen, supra note 1 para. 561.

[6] Klimaseniorinnen, supra note 1 para. 548.

[7] La Rose v Canada, 2023 FCA 241; Mathur v Ontario, 2020 ONSC 6918; Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74.

[8] Klimaseniorinnen, supra note 1 at para 442.

[9] Canadian Net-Zero Emissions Accountability Act, SC 2021, c. 22; La Rose v Canada, 2023 FCA 241 at para. 32.

[10] La Rose v Canada, 2023 FCA 241 at para. 128.

[11] Klimaseniorinnen, supra note 1 para 538.

[12] Gossellin v. Quebec (Attorney General), 2002 SCC 84; La Rose v Canada, 2023 FCA 241 at para. 123.

[13] La Rose v Canada, 2023 FCA 241 at para. 38.

[14] Milieudefensie et al. v. Royal Dutch Shell plc., The Hague District Court, C/09/571932 / HA ZA 19-379, 25 April 2022 (Netherlands) (Milieudefensie).

[15] Sabin Center for Climate Change Law, Columbia Law School & United Nations Environment Programme, “Global Climate Litigation Report: 2023 Status Review” (2023) at 50, online: https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1203&context=sabin_climate_change.

[16] Urgenda Foundation v. State of the Netherlands, Supreme Court of the Netherlands, Case No. 19/00135, 20 December 2019 (Netherlands).