Split Saskatchewan appeal court rejects climate Charter challenge

A divided Saskatchewan Court of Appeal has upheld the striking of a Charter challenge to two gas-fired power plants and provincial greenhouse-gas emissions limits. In Dykstra v Saskatchewan Power Corporation, 2026 SKCA 99, released Sept. 10, 2026, the majority concluded that the claims lacked the legal basis and manageable standard needed for a court to adjudicate them.

Justice Jerome Tholl, joined by Justice Neal Caldwell, dismissed the appeal. Justice Jillyne Drennan agreed that the power-plant challenge should be struck but would have allowed the challenge to the emissions regulations to proceed.

The decision concerns whether the pleaded claims could be heard by a court. As Tholl explained at the outset, the existence of climate change was not disputed between the parties.

Two branches of the claim

Seven Saskatchewan residents and Climate Justice Saskatoon brought the proceeding against SaskPower, Crown Investments Corporation of Saskatchewan and the provincial government. They alleged violations of sections 7 and 15 of the Canadian Charter of Rights and Freedoms, which protect life, liberty and security of the person and equality rights.

One branch challenged the approval, construction and operation of the Great Plains Power Station in Moose Jaw and the Aspen Power Station near Lanigan. The other attacked emissions limits under The Management and Reduction of Greenhouse Gases (General and Electricity Producer) Regulations.

The applicants argued that the regulatory limits allowed emissions above SaskPower’s historical levels in the earlier compliance periods. Their requested remedies included declarations of Charter breaches, changes to emissions targets and a plan to achieve net-zero electricity by 2035 or, alternatively, 2040.

The Court of King’s Bench struck the claim. On appeal, the dispute remained at the pleading stage, where the applicable rule barred evidence and generally required the alleged facts to be taken as true, subject to exceptions for matters such as speculation or facts incapable of proof.

Majority finds no workable legal standard

The majority accepted that government action can be reviewed for Charter compliance even when it involves controversial policy. But it found that these claims would require the courts to make choices about electricity generation and emissions policy without a sufficient legal standard.

For the power plants, the majority found that the applicants had not identified an applicable law requiring carbon capture or otherwise supplying an objective standard for assessing the challenged choice of generation facilities. Decisions about which facilities to build involved competing considerations better addressed by the legislative and executive branches.

The majority distinguished the climate litigation in La Rose and Mathur, where it found that legislated commitments or targets provided standards for judicial review.

It also rejected reliance on the Paris Agreement and the International Court of Justice’s 2025 climate advisory opinion as a basis for making this claim justiciable. The majority said those sources did not bind Saskatchewan in the manner asserted, while acknowledging that international law might influence the later adjudication of an otherwise justiciable claim.

The regulatory challenge failed for related reasons. Although the regulations supplied a specific legislative target for the challenge, the majority found no binding requirement for an immediate reduction from historical emissions, the particular net-zero timetable sought, or limits tied to Saskatchewan’s asserted share of international reductions.

The majority treated the requested intervention as an attempt to have the courts set emissions policy rather than resolve a claim against a manageable legal standard.

Dissent would hear the regulations challenge

Drennan drew a different conclusion about the regulations. Section 5 of The Management and Reduction of Greenhouse Gases Act requires Saskatchewan to establish an emissions-reduction target. In her view, the applicants had raised an arguable question about whether the regulations fulfilled that statutory obligation and complied with the Charter.

She considered that challenge comparable to the one allowed to proceed in Mathur. It identified both a specific law and a legal standard, rather than merely expressing disagreement with government policy.

The dissent also distinguished a decline from one regulatory cap to the next from a reduction against actual historical emissions. Whether the caps represented genuine reductions was an arguable issue that should not have been resolved against the applicants at this preliminary stage.

Drennan agreed that some requested orders exceeded the court’s institutional role. But she concluded that a declaration of a Charter breach could be considered without requiring a judge to set particular emissions caps.

The majority’s disposition governs: the claim remains struck, and the appeal was dismissed without costs. The court also declined a further opportunity to amend. The ruling leaves a sharp division over whether Saskatchewan’s existing emissions-target legislation provides a sufficient basis for this constitutional challenge; the alleged climate harms and Charter breaches were not decided on a trial record.