Brian Zinchuk is editor and owner of Pipeline Online
From left: Glenn Wright, Justice Jerome Tholl, Justice Neal Caldwell, Justice Keith Kilback. Sketch by Brian Zinchuk
“The Decision is a public policy choice that Saskatchewan was authorised to make.”
SASKATOON – A unanimous decision by the Saskatchewan Court of Appeals has dismissed the appeal seeking to shut down refurbishment of Saskatchewan’s coal-fired power generation, and, by extension, the mining that supports coal-fired power.
The ruling in Citizens for Public Justice v Saskatchewan, 2026 SKCA 116, dismissed the appeal.
The case was initiated on July 18, 2025, by five parties. The appellants were Citizens for Public Justice, Kiké Dueck a minor by their litigation guardian Kris Dueck, Sherry Olson, Matthew Wiens and the Saskatchewan Environmental Society Inc.
The case was brought against the Government of Saskatchewan, with International Brotherhood of Electrical Workers, Local 2067 and United Mine Workers of America, Local 7606, granted intervenor status.
You can read the extensive background of the case and what happened in court here.
The decision was written by Justice Neal Caldwell, with Justices Jerome Tholl and Keith Kilback in concurrence. The lawyers were Glenn Wright, Kelsey Sonntag and Benjamin Ralston for the Appellants, C. Elaine Thompson, K.C. for the Respondent (Government of Saskatchewan), and Daniel LeBlanc for the Intervenors (IBEW and UWMA).
Wright has attempted and failed at running for public office five times in recent years. Wright has run as an New Democrat provincially and federally a total of three times from 2011 to 2016, an independent federally in 2019, and for the Green Party of Saskatchewan in 2020. In an attempt to achieve what he was unsuccessful achieving at the ballot box, he had been waiting for an opportunity to take the government to court. The coal decision was his chance. He filed the originating application (otherwise referred to as an injunction) July 18, 2025.
But it’s not the first time Wright has done this. Earlier this year, a similar case referred to as Dykstra KB (King’s Bench) an Dysktra CA (Court of Appeal), regarding Saskatchewan’s building and of the Great Plains and Aspen Power Stations, both fueled by natural gas. A related case sought to have the minor, Â Sabrina Dykstra, 15 at the time, treated as an adult in the proceedings.
On Jan. 12, Justice R.S. Smith ruled in Court of King’s Bench Chambers that the originating application on the coal decision be struck. In other words, Justice Smith tossed the application for an injunction and judicial review into the provincial government’s stated intentions of refurbishing its coal-fired power generation fleet instead of shutting it down by Dec. 31, 2029, according to federal coal regulations.
In that Jan. 12 decision, Justice Smith wrote, “The applicants are an eclectic crew of citizens who love the Earth. They take umbrage with the decision as coal-powered generating stations increase greenhouse gases [GHG] that foul the Earth’s atmosphere.”
The “Electic Crew,” as the King’s Bench judge described them. Photo by Brian Zinchuk
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On June 18, 2025, Minister of Crown Investments Corporation and Minister Responsible for SaskPower Jeremy Harrison had informed SaskPower workers of the province’s intention to refurbish and operate its coal-fired power fleet as a bridge to nuclear power. This would fly directly in the face of federal coal regulations, which required that all conventional coal-fired power (six of the seven coal-fired generating units) end operation Dec. 31, 2029. It meant a reprieve for the 1,400 people directly employed between the three power stations and two mines impacted, as well as the communities of Coronach, Estevan and Bienfait, plus numerous surrounding communities which are home to many coal workers.
This announcement would come to be referred to as the “coal decision.” Pipeline Online broke the initial 2025 story, which you can read in-depth here.
Glenn Wright. Photo courtesy Glenn Wright
Within weeks, Saskatoon engineer-turned-lawyer Glenn Wright filed for an injunction. He had been looking for a way to challenge Saskatchewan government policy, having already initiated an ultimately unsuccessful legal challenge against natural gas-fired power generation. He gathered five parties, and the injunction was filed July 18.
You can read the in-depth story on the Sept. 15 appeal hearing in court here.
The ruling laid out the case as follows:
Naming the Government of Saskatchewan [Saskatchewan] as the respondent, the Appellants filed an originating application seeking judicial review of a decision made by the executive branch of the provincial government. Saskatchewan’s decision was communicated to employees of Saskatchewan Power Corporation [SaskPower] in a letter [Letter] written by the Minister of Crown Investments Corporation and Minister Responsible for SaskPower. In the Letter, the Minister informed the employees that Saskatchewan had decided to extend the operating life of SaskPower’s coal-generating power assets as the province bridged to nuclear baseload power generation [Decision].
The Appellants sought an order setting aside or quashing the Decision, submitting that it was incorrect or unreasonable based on five grounds tied principally to the relationship between coal-generating power assets and climate change. In their factum, the Appellants describe their claims as assertions that the Decision: (a) “inadequately relies on irrelevant, inaccurate and incomplete economic analysis”; (b) “inadequately considers Canada’s international legal obligations”; (c) “incorrectly characterizes constitutional authority over electricity generation”; (d) “inadequately considers Charter rights implications”; and (e) “inadequately justifies [Saskatchewan’s] departure from past energy policy”.
In response, Saskatchewan sought an order striking out the Appellants’ originating application, arguing that the claims failed to raise a justiciable issue or to articulate a matter suitable for judicial review. The judge who heard Saskatchewan’s application granted it in the Judgment, striking the Appellants’ claims in their entirety.
I would dismiss the appeal from the Judgment. Saskatchewan’s application raised a straightforward question about whether the Appellants’ pleadings disclosed “a reasonable claim” (Rule 7-9(2)(a)). In this context, that question required the judge to determine whether the Appellants’ claims against Saskatchewan were justiciable. The judge framed the question before him in these terms:
- The question is not whether climate change is real. The question is how best to address it. The corollary question is how best to address it and at the same time balance the various interests in play including the electricity needs of Saskatchewan and incidental economic considerations.
- There are intractable competing interests on the proverbial table. An equally legitimate question is whether it is appropriate for the Court to weigh in on the solution or whether this particular debate is beyond the proper scope of the Court.
After considering the Appellants’ arguments on justiciability and Saskatchewan’s submissions in response, the judge noted that his Court had recently addressed the issue of justiciability in Dykstra v Saskatchewan Power Corporation, 2025 SKKB 175 [Dykstra KB] (which was subsequently affirmed in Dykstra v Saskatchewan Power Corporation, 2026 SKCA 99 [Dykstra CA]). Applying the principles of justiciability discussed in Dykstra KB, the judge concluded that the Appellants’ claims were not justiciable, stating that the courts “are not designed to manipulate the nuts and bolts of government action with a view to achieving policy ends” (at para 24), and that determining the claims would not be a legitimate exercise of the judicial process because the courts “should not be dictating to [Saskatchewan] what its overarching environmental policy should be” (at para 26).
Having reviewed the Judgment and the governing law, and having heard the parties’ and the intervenors’ arguments in this appeal, I conclude that the judge’s determination that the Appellants’ claims against Saskatchewan are not justiciable is correct. Accordingly, his decision to strike their originating application pursuant to Rule 7-9(2)(a) as disclosing no reasonable claim must be affirmed.
I would therefore dismiss the appeal. I would make no order as to costs.
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Justice Neal Caldwell. Sketch by Brian Zinchuk
Digging into the decision
In providing the court’s reasons, Justice Caldwell pointed out that the appellants asked the previous judgment to be set aside, but also for three things that did not appear in the judgment. The appellants asked for
- an order for an interim stay of the Decision pending determination of the judicial review application;
- an order requiring Saskatchewan to “produce the record of proceedings [that led to the Decision] … on an expedited basis”; and
- an order directing the Court of King’s Bench to expedite a hearing of the judicial review application on its merits.
Justice Caldwell wrote, “At the outset of the appeal hearing, the Court indicated that, other than an order setting it aside, the Appellants had requested relief that did not appear to be related to the Judgment.”
That’s because Justice Smith had not made a decision on those matters, since he had ruled the application was non-justiciable.
He noted, “The Appellants asked a different Court of King’s Bench judge to determine the judicial review application on its merits and to impose an “interim stay to preserve the status quo and prevent the Government from taking any further steps” but that “the judge held that it was “vastly premature for [her] to hear [the judicial review] application on its merits or even to schedule the application to be heard on its merits”. Instead, recognising that justiciability was a “threshold issue that needs to be addressed at the outset”, she directed that the “question of whether the judicial review application raises a justiciable issue” be put before a Court of King’s Bench Chambers judge for determination.”
While it’s normal to send matters back to King’s Bench, as for the request to direct King’s Bench to expedite a hearing, that wasn’t on. He said, “Aside from interpreting The King’s Bench Rules in an appeal decision, this Court does not generally tell the Court of King’s Bench when or how to conduct its proceedings.”
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Justiciability
The key matter the court concerned itself with was “justiciability.” Justice Caldwell referred to that in the Dykstra CA case, one of several cases Wright has brought up against SaskPower and the Government of Saskatchewan. This one in particular “The appellants say that the respondents are worsening the climate crisis by constructing “new unabated fossil fuel-based electrical generation assets” [UFFGAs], namely the Great Plains Power Station in Moose Jaw, Saskatchewan, and the Aspen Power Station near Lanigan, Saskatchewan, which are natural gas-fired plants.” That was a similar case where Wright, again, used a youth as one of the parties in a climate chase.
Justice Caldwell noted Justice Tholl (who wrote the Dykstra decision and sat on this appeal panel as well) summarized the principles of justiciability, saying, “Justiciability refers to the “subject matter jurisdiction (ratione materiae) of a court” and “is concerned with the propriety of the courts adjudicating a particular claim.”
In other words, can the court even consider a matter, or is it out of their bounds? Part of that summary pointed out, “Certain disputes are simply not within the judicial domain to determine.”
He quoted a Justice Wilson in a case known as Operation Dismantle, saying, “In La Rose FCA, in its examination of the criteria for assessing justiciability, the Federal Court of Appeal opined on the courts’ role in the Canadian democratic system, noting that it is not their role to evaluate the wisdom of the choices of the people’s elected representatives: The constitutional consideration is the court’s respect for its role in a Westminster parliamentary democracy. The wisdom of political and policy choices made by Parliament in response to social, economic and environmental problems is separate and apart from their constitutionality. Courts do not second-guess the wisdom of Parliament’s choice; rather they asses the validity of the resulting law and its application muse be mindful of the boundaries between the two. The justiciability inquiry involves weighing of the appropriateness, as a matter of constitutional judicial polity, of the courts deciding a given issue or instead deferring to other branches of government.”
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While the appeal raised five allegations of errors made by the King’s Bench judge, Justice Caldwell wrote, “These five allegations of error are best addressed in a single, inclusive analysis of the correctness of the judge’s conclusions under the principles of justiciability.”
He added, “On the bottom line, the question in this case was not whether a policy decision can ever be subject to judicial review. Many exercises of executive authority are reviewable by the courts. The principal question for the judge was whether the Appellants’ pleadings identified any legal constraints governing the specific policy determination in the Decision against which judicial review could operate.”
He wrote, “In as much as subject matter reveals who has decision-making power, the executive branch of the Government of Saskatchewan, as represented by the Lieutenant Governor in Council (Cabinet), had the power to make the decision.”
And significantly for those who question the Saskatchewan First Act, he pointed out, “In addition, Saskatchewan has exclusive authority to make laws respecting non-renewable natural resources and electrical energy pursuant to s. 92A of the Constitution Act, 1867.”
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Cruise missiles?
There were many references during the hearing and in the decision to a case referred to as Operation Dismantle. “There, the federal government’s decision to permit cruise missile testing in Canada, which fell within its defence powers under the Constitution, was at issue. Although the matter was decided on other grounds, the Supreme Court unanimously held that “cabinet decisions fall under s. 32(1)(a) of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution” and that “the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter.”
He quoted Supreme Court Justice Wilson, saying, “I would conclude, therefore, that if we are to look at the Constitution for the answer to the question whether it is appropriate for the courts to “second guess” the executive on matters of defence, we would conclude that it is not appropriate. However, if what we are being asked to do is to decide whether any particular act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the question; it is our obligation under the Charter to do so.”
Justice Caldwell noted there are times when courts should review decisions, but that’s generally in cases relating to breaches of Charter rights.
(This was the strategy Wright used in the failed Dykstra case.)
But in this case, the appellants did not plead any charter breach, but alleged potential Charter implications.
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And not outlining legal constraints, such as the Charter, appears to have been the fatal flaw of the Appellants’ arguments. Justice Caldwell wrote, “For these reasons, I conclude that, contrary to the Appellants’ submissions, the judge did not misinterpret the Decision as “a matter of policy rather than as a reviewable decision of an administrative decision maker”. The executive origin of the Decision is alone insufficient to establish justiciability because resolution of that issue does not rest on the identity of the decision maker. The question is whether the Decision is susceptible to judicial scrutiny, and, in these circumstances, that depends on the existence of a legal benchmark against which it may be assessed. In that regard, even if we assume that the Decision is, in principle, otherwise amenable to judicial review, the Appellants have not pleaded any statutory, constitutional, prerogative or common-law constraint capable of informing that review. As I will explain, the absence of a pleading of such a legal constraint is what ultimately renders their claims non-justiciable.”
And
“It is the legal component that brings a matter of public policy within the scope of the traditional role of the courts. “
Wright had argued that the coal decision would lead to all sorts of federal and even international laws being broken. But that point is key – it’s a future thing, not something that has occurred. Justice Caldwell wrote, “Until a political or policy decision has been implemented, allegations of unreasonableness or unlawfulness in judicial review would be detached from any operative legal instrument and, therefore, any legal consequences would remain contingent or speculative. The impediment here is that the Decision has not yet taken legal form through legislation, regulation, an order in council, or other operative state action capable of affecting legal rights or obligations.”
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“While climate policy decisions can have legal dimensions, the Appellants’ pleadings in this case do not allege that the Decision breaches, or was made in breach of, any statute, regulatory instrument or other law to which Saskatchewan or Cabinet is subject, or any order in council issued by Saskatchewan or the Government of Canada, or even any agreement that Saskatchewan has entered with another government. In this appeal, the Appellants said that they only foresee such breaches occurring if Saskatchewan subsequently acts to implement the Decision; while they protest that it is inevitable, they concede that the Decision itself is not alleged to contravene any existing statute, regulation, constitutional provision or other binding legal instrument. Furthermore, the Appellants could not identify any constitutional principle, prerogative or other law that constrains the exercise by the executive branch of the provincial government of its constitutional power to make decisions like the Decision. The inability to identify a legal component reveals the Decision as a predominantly political choice.”
He added, “To sum up, the difficulty for the Appellants is not that the Decision was made by Cabinet or a minister, nor that it concerns an issue of public policy. Executive decisions, including decisions taken at the highest levels of government, may be reviewed where a claimant identifies in their pleadings a statutory, constitutional, prerogative, or common-law constraint governing the exercise of authority. However, accepting the pleaded facts as true, the Appellants have not identified any such legal constraint against which the reasonableness of the Decision may be assessed. Nor have they pointed to legislation, subordinate legislation, an order in council, or administrative action through which the challenged policy has crystallised in a reviewable legal instrument. In these circumstances, there is no foundation upon which to build the case that the Decision is unreasonable or incorrect; there is no legal benchmark against which the Decision may be assessed by the courts. It is this absence of a sufficient legal component or judicially manageable legal standard from the pleadings that renders the claims non-justiciable.”
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Conclusion
In conclusion, Justice Caldwell wrote, “The Decision is a public policy choice that Saskatchewan was authorised to make. On the pleadings in this case, Saskatchewan was not alleged to be subject to any legal restraint that would preclude the decision it made. The Decision has not been implemented under legislation, regulation, order in council or an administrative action. In these circumstances, the Decision lacks the legal component or legal standard necessary to support judicial review. The judge correctly held that the Appellants’ claims against Saskatchewan were not justiciable. Therefore, his decision to strike the Appellants’ originating application pursuant to Rule 7-9(2)(a) must be affirmed.
“I would dismiss the appeal but make no order as to costs.”
“Costs” are a financial penalty where an unsuccessful party has to pay the legal bills of the winner in a case. It’s a way to discourage frivolous lawsuits, because if you lose, you could end up with a mammoth bill. While the court could have ordered the five parties to pay the legal expenses of the Province, it chose not to.
It remains to be seen if the five parties will seek a final appeal to the Supreme Court of Canada, and even if they do, if the Supreme Court chooses to take the case.
The Saskatchewan Environmental Society generally posts a lot about its activities on its Facebook page. As of Oct. 22, there has been nothing posted about the decision, or possibility of appeal. No press release has been issued on its web page, either, with the last one posted being a lengthy Sept. 14 release about case going to the Court of Appeal.
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