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The number of nuisance and negligence tort claims in the US against “Big Oil” companies have grown significantly in the last five years. The Netherlands case of Milieudefensie et al v Royal Dutch Shell represents the first major success of such a claim internationally. While the US cases and Milieudefensie demonstrate starkly different approaches as to how to seek accountability from Big Oil for climate change harms, the increasing judicial engagement on these issues may mean the time is right for similar lawsuits in Canada. Three Canadian common law causes of action are examined: nuisance, negligence, and unjust enrichment. Defences and arguments which stem from society’s (and any potential plaintiff’s) acquiescence and authorization to allow the defendants’ conduct may present difficult barriers to success. This paper focuses on these types of defences, and argues that the responsibility of Big Oil for climate change harms should not be completely vitiated even if governments and plaintiffs have acquiesced, authorized, and arguably contributed to our climate crisis. [ABSTRACT FROM AUTHOR]

Climate change-related disputes, which often include novel, complex, or politically sensitive matters, have experienced a mixed reception by the courts. Defendants both in Canada and the United States have raised the issue of justiciability-- the question of whether a matter is of the quality or state of being appropriate or suitable for review by a court--with some success in attempts to have these cases summarily dismissed. The author reviews the types of climate change cases that have been launched, examines the US and Canadian laws of justiciability, analyzes the paths in which the caselaw regarding justiciability in these countries is headed, and suggests how these developments will impact future climate change cases. This paper finds that Canadian courts may be increasingly using justiciability as a means to avoid addressing climate change issues--just as US courts may be beginning to take a more progressive approach. [ABSTRACT FROM AUTHOR]