In an effort to lower the hurdles of climate change-based claims, the International Bar Association (IBA) has drafted a Model Statute for enactment by national and sub-national governments. Though the purpose of the Model Statute is to ease challenges to governments’ failures to act on climate change, it also provides a blueprint for legislation directed at corporations with significant greenhouse gas emissions (GHG), including class actions.
Such legislation has precedent in Canada, notably as employed by the provinces for claims against tobacco companies and opioid manufacturers. As noted in a previous Dentons Insight, several municipalities have requested that British Columbia enact legislation to support claims against GHG emitters and a bill to establish the liability of fossil fuel producers for climate-related harms was introduced in the Ontario Legislature. Here we will consider aspects of the Model Statute that may be incorporated in a provincial statute targeting corporations with significant GHG emissions.
Noting the difficulties faced in proving an act was a material cause of damage suffered by plaintiffs, the Model Statute relaxes the causation standard below a balance of probabilities. This approach draws in part on Canadian and English cases that have applied a more flexible “but for” causation test, requiring proof only of a “material contribution to risk of harm”. While this lower standard is not available for all tort cases, the inability of the applicable science to determine the specific source of the harm can provide a basis for relaxing the “but for” test to require only a material contribution to the harm. As causation is currently one of the most significant hurdles to climate change plaintiffs, legislation overriding the general standard would greatly improve the prospects of a plaintiff succeeding.
The Model Statute proposes several modifications to the rules of evidence to reduce the time and cost of admitting evidence and proving that anthropogenically induced climate change is occurring with corresponding harms. The Model Statute permits the court to take judicial notice of the findings and conclusions of the Intergovernmental Panel on Climate Change in its Assessment Reports and Special Reports, only to be challenged with leave. Scientific records and materials prepared by or for government bodies are also deemed admissible.
Restrictions on defences
The Model Statute proposes eliminating key defences that a defendant would have to a climate change class action. Critically, the fact that a defendant is not the sole or substantial contributor to GHG emissions, or caused or permitted only a minor degree of the resulting harm would not be available defences. The removal of these defences would permit plaintiffs to claim against corporate emitters of all sizes and without regard to the potential liability of other emitters not party to the proceeding.
The Model Statute grants judicial discretion to waive entitlement costs or to set a maximum costs amount that any party could recover. It also bars awards of security for costs. Similar measures already exist in some provincial class proceedings legislation and could further encourage plaintiffs to bring claims by reducing the financial jeopardy that could result from a costs award against them. Conversely, the Model Statute grants the court discretion to order advance costs to be paid to the plaintiff.
The changes proposed by the Model Statute would have significant implications for many of the over 1,300 climate change-related cases proceeding worldwide. Indeed, simply the changes to causation or restrictions on defences would have vast implications for plaintiffs’ likelihood of success at certification, where the bar for demonstrating a workable case methodology is already low. While the IBA tasked itself with producing a Model Statute to assist individuals and organizations with holding governments to account for their GHG reduction efforts, or lack thereof, the Model Statute is also instructive of provisions that could be included in future legislation directed at corporate emitters, significantly increasing their exposure to climate change class actions.