Constitutional Law Expert Will Advise Canadian Communities on Climate Cases

By Dana Drugmand

As Canadian communities continue to lay the groundwork for liability cases against fossil fuel companies, one of the country’s leading constitutional and public law attorneys announced he would be offering a legal opinion to the communities free of charge.

That announcement by Joseph Arvay of the firm Arvay Finlay came during the recent Union of British Columbia Municipalities convention. Victoria, one of the municipalities that brought a resolution on recovering climate costs to the convention, made the announcement and decided to withdraw its resolution in anticipation of Arvay’s input. Arvay’s opinion is expected to help guide communities in exploring possible litigation against fossil fuel companies. 

Arvay did not immediately respond to a request for comment. His firm has been retained by an unknown party to prepare the opinion, which he would then share with all the communities. “I don’t know what the upshot of the opinion is going to be,” Arvay told the Victoria Times Colonist, “but I wouldn’t have taken it on unless I thought there was a reasonable argument to be made that the fossil fuel companies need to pay their fair share of the damages that they incurred by their conduct.” 

This argument was essentially the basis for Victoria’s resolution, which called for the municipalities to “explore the initiation of a class action lawsuit on behalf of member local governments to recover costs arising from climate change from major fossil fuels corporations.” The Victoria City Council endorsed the resolution in January, becoming the first BC municipality to formally support climate liability litigation. Councilman Ben Isitt said at the time that the city would be tracking its climate costs and seeking legal advice on pursuing litigation. 

That advice is now in the works. Arvay’s opinion is expected later this fall. 

“Municipalities are on the frontlines of the climate crisis and now they’ll have access to a legal opinion by an accomplished and well-respected lawyer. This gives municipalities more options because it enables them to seek justice; they can encourage the Carbon Majors to assess how their business model is impacting communities and the planet,” said Anna Barford, community organizer at the Georgia Strait Alliance, a nonprofit supporting the region’s climate accountability campaign. 

“We are delighted that one of Canada’s top legal minds will help BC’s local governments understand their legal options to protect their taxpayers from the costs of climate change and to recover a fair share of those costs from the world’s fossil fuel giants,” added Andrew Gage, staff lawyer at West Coast Environmental Law, which has been organizing communities to send letters to fossil fuel companies requesting compensation for climate impacts. 

Besides Victoria, the cities of Vancouver, Richmond, and Port Moody have also voted in support of pursuing climate accountability and recovering costs from fossil fuel companies. Port Moody brought a resolution (with support from Richmond) to the UBCM convention calling on the province to enact legislation “that holds fossil fuel companies financially liable for climate-related harms caused by their contributions to climate change.” Delegates at the convention ultimately voted against the resolution by a 60-40 margin. Gage said he was still encouraged to see that nearly 40 percent of delegates were in favor of enacting legislation, which he said would “help clarify what the rules are” and “help clarify the liability of fossil fuel companies without the need for years of litigation.” Canada enacted damages recovery legislation that supported class action litigation against tobacco companies, so the idea is that governments would follow a similar path to pursue litigation against fossil fuel companies.  

Opposition has come from municipalities located in petroleum producing areas as well as industry associations and groups promoting resource extraction. One of those groups, Resource Works, put out a policy brief last month criticizing climate accountability efforts in BC, describing climate lawsuits as an “alarmist approach” and “inherently adversarial.” 

Gage said this kind of messaging mischaracterizes what local governments are increasingly supporting. 

“We are not a litigation campaign exactly. We’re a fossil fuel industry accountability campaign,” he said.  

“The point is not that lawsuits get filed. It’s that the public realizes what the costs are and that fossil fuel companies be held accountable for a share of the costs,” he said. “Litigation is one tool, and legislation is another.” 

Barford said the public is starting to understand the exorbitant costs associated with climate impacts.  

“We know that residents across BC are concerned about the rising costs of adapting to climate change and that there is broad support for using legal tools to bring international fossil fuel producers into a conversation about their fair share.”