Climate litigation will gather pace in Canada

Governments and corporations alike will face increasing number of claims

From coast-to-coast Canada will continue to experience catastrophic disasters relating to climate change, including hail and ice storms, mudslides, flooding, hurricanes and wildfires. The cycle will intensify year after year as fires and flooding lead to erosion and slides and further risk to life and property.

This brings the potential for a rise in the number of class actions, which are a growing litigation strategy in Canada. Companies in the transportation, energy, mining and forestry industries will be particularly in the firing line; their operations can literally cause the spark to ignite catastrophic disasters in the ultra-dry/hot climate we are now experiencing. 

Meanwhile, both Provincial and Federal Governments face the spectre of litigation for failure to pass and implement climate change legislation. While the Supreme Court of Canada has recently read down the concept of disgorgement for damages, there is the potential for litigation based on funds “saved” by governments for not spending resources to protect the environment. This public interest litigation will be funded by the myriad of environmental defence groups that are growing in success in raising money.

Insurers will continue to raise premiums rendering entire quadrants of cities practically unable to qualify for personal lines homeowners’ insurance as a result of prior experiences with fires, floods and storm damage. Governments may determine to pass ‘all comers’ type legislation for homeowners so that they can obtain minimum insurance for mortgage financing.

Some properties in some locations have already been deemed to be uninsurable to the industry because of their proximity to locations that flood. Government aid will continue to be withheld from property owners who carry their own insurance, a trend which, on its face, penalises those who try to manage the risk of disasters resulting from climate change, but which is a predicable outcome where there are finite resources available to remediate following natural disasters.

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