ABSTRACT
As the effects of climate change reverberate across Canada, private law actions against major polluters are increasingly likely to reach the courts. Despite this possibility, the viability of tort claims by private plaintiffs remains insufficiently tested in practice. Consequently, this article has two objectives. First, it analyzes the compatibility of climate-related tort claims with established tort law principles. Causation serves as an appropriate case study, as it represents a particularly complex obstacle to successful claims. By interweaving Canadian jurisprudence, comparative perspectives and recent advances in climate attribution science, the article offers a nuanced assessment of causation in climate change tort litigation. This analysis reveals a narrow path to accommodate claims while remaining faithful to established tort law doctrines; however, it also uncovers underlying methodological obstacles. Building on this assessment, the article’s second objective is to argue that climate change is a promising area for legislative intervention in private law. Indeed, the development of tort law exhibits a rich history of legislative-judicial interaction with important parallels to the challenges presented by climate change. Consequently, it is possible to draw on previous examples of successful intervention and demonstrate the potential impact of statutory reform within adopting jurisdictions, as well as its influence on the cross-jurisdictional development of the common law. In this way, the article seeks to foster a meaningful discussion on the advancement of Canadian tort law in an era of environmental transformation.
Stack, Logan, Warm Climate, Slow Change: Climate Tort Claims in Canada and the Potential for Legislative Intervention (February 4, 2022). 55:1 University of British Columbia Law Review 251 (2022).
First posted 2022-03-19 09:00:25
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