1. Environmental Law and Policy
Professor Elaine Hughes

2. UNIT 3 THE COMMON LAW

3. Substantive Law – Main Approaches
Common law (tort & property)
Environmental bills of rights
Regulatory legislation
Administrative law review
Criminal law
sentencing

4. The Common Law Approach
Traditional causes of action
Pros & cons
Modern context: statutory torts, class actions, environmental rights and SLAPPs

5. Historically, common law causes of action in tort and property were the ONLY ways to control undesirable land uses.
Although established and available, they are difficult to use to get a remedy for injury from pollution, and there is no right to be free from environmental harm per se

6. Case Study: Palmer v. Nova Scotia Forest Industries (1983) 2 D. L. R
Case Study: Palmer v. Nova Scotia Forest Industries (1983) 2 D.L.R. (4th) 397 (N.S.T.D.)
Film: “Herbicide Trials”

7. What are the pros and cons of using civil litigation to control environmental harm?

8. Con: choice of an appropriate cause of action can be problematic
You may need personal injury or private property damage
There may be specialized standing rules

9. Options: private nuisance, public nuisance, negligence, Rylands v
Options: private nuisance, public nuisance, negligence, Rylands v. Fletcher (civil strict liability), trespass, riparian rights

10. Private Nuisance
Def/an unreasonable interference with the use or enjoyment of land owned or occupied by the plaintiff
No intention or negligence by defendant is needed, nor does the defendant need to be a property owner.

11. Private Nuisance (con’t)
Clearly cannot be used to protect unoccupied land (e.g.. Wilderness)
With direct physical or personal injury, liability flows on proof of damage
For lesser interferences with use and enjoyment, the parties’ interests are balanced and the plaintiff will only succeed if the defendants’ actions are unreasonable

12. Public Nuisance
Def/a nuisance committed against the public at large i.e., interference with the health, safety, comfort or convenience of the community
Issues: specialized standing, class actions, eligible damages

13. Public Nuisance Standing
Plaintiff must meet specialized standing rules:
The Crown (AG of Canada or any province)
A relator (private person acting with the discretionary permission of the Crown)
A private person only if he or she has suffered “special” damage different from the community

14. Public Nuisance – Who is the Public?
How can we distinguish between injury to “the public” and a private nuisance which affects a number of persons?
Class action statutes may provide some solutions to this dilemma

15. Public Nuisance – “Special Damage”
Personal injury and property damage are always special damage
For other interferences, the key question is whether harm must be different in degree from that done to the general public, or whether it must be different in kind?
Canadian trend is toward the “difference in kind” test
Whether pure economic losses count is particularly problematic.

16. Negligence
Def/failure to use reasonable care to prevent foreseeable harm
Many elements: duty of care, breach (fault), actual damage, foresee ability, cause in fact, proximate cause
Useful in the absence of property interests and where the plaintiff is at partial fault

17. Rylands v. Fletcher (civil strict liability)
Def/defendant in occupation of land on which is kept a dangerous (non-natural) thing must prevent its escape or be liable for all direct consequences
No negligence; it is not a nuisance because plaintiff need not be a landowner

18. Trespass
Def/a direct, intentional invasion of the plaintiff’s land, even if no actual damage occurs
Trespass to the person can also occur

19. Riparian Rights
Def/riparian owners are entitled to the natural flow of water without sensible alternation of its quantity or quality
Domestic and/or reasonable use of water by upper riparians must not diminish the quality or quantity for use by lower riparians
Greatly affected by statutory licencing regimes in Canada

20. Other pros and cons in addition to standing rules and specialized elements of each tort (e.g.. Land ownership)?

21. Con: Statutory authority may provide a defence
If a company has a permit for its activities, it must choose to do so in a non-tortious way if possible. However, if a nuisance is an inevitable consequence of a statutory duty or authorization, this provides a defence

22. Cons: the need to prove causation can be problematic due to scientific uncertainty and/or multiple defendants
Possible solutions:
Reverse onus e.g.. EBRs
Partial liability e.g.. US doctrines like probalistic causation, market share liability

23. Cons: Actions are ad hoc not part of an overall land use plan
Remedies (typically damages) are after-the-fact i.e. Not preventive
Only present harm compensable

24. Pros: Can win Can recover private losses Can compel government to act
Is under control of the injured person

25. Pros: Polluter is made to bear the responsibility
If injunction awarded, can stop the damage
Publicity about issues and an educational function can be served

26. Various interesting issues have come up in modern litigation, some designed to provide solutions to some of the shortcomings of traditional tort law, and others that broaden its scope.

27. Statutory Torts
Modern statutes that set out the regulations controlling pollutant discharges usually establish statutory torts.
Breach of Act or Regulations = actionable civil wrong
Unlike EBRs they are limited to personal injury or property damage

28. Class Actions
Most provinces now have statutes to permit class actions where groups are injured by civil wrongs, including environmental cases.
Alleviate standing and costs requirement
Need to have class “certified” as a 1st step

29. Cases include: Hollick (SCC 2002) Hoffman (SCC 2007)

30. Public Authority Liability
Actions against government for failures in regulatory control of polluters are subject to special rules.
There is Crown immunity for problematic policy decisions, while negligent operational decisions can result in liability.

31. Public Environmental Rights/Public Trust
Canfor (SCC 2004) – Crown has parens patriae jurisdiction to sue for damage to public resources via public nuisance or negligence actions
U.S. public trust doctrine discussed favourably – Court sees potential for common law to develop on its own

32. SLAPPs Strategic Lawsuits Against Public Participation
Misuse of frivolous litigation against concerned NGOs to drain money and resources
U.S. idea of anti-SLAPP statutes to provide cost-effective and expedited procedure to see such claims dismissed

33. EBRs Environmental Bills of Rights
Idea was to make statutory changes to the common law to alleviate issues with standing, costs, remedies

34. Yukon Environment Act
Increased ability to go to Court (judicial accountability model)
Individual right to take action against polluters, or government
Environmental damage per se is actionable
Remedies focus on environmental restoration

35. Yukon Environment Act (con’t)
Some reverse onus provisions and discretionary intervenor funding
Also creates a public trust action where government fails to take sufficient steps to protect resources
Petition and investigation rights

36. An alternative idea for “rights” developed based on the idea that better access to decision-making procedures by concerned persons might prevent problems and the later need for litigation.

37. Ontario EBR
Increased access to information and ability to provide input in advance of various decisions e.g. to issue licences, to amend regulations
Focus is on taking action against government to compel investigations and reviews (political accountability)

38. Ontario EBR (con’t)
If procedural steps fail, there is a “last report” access to the Courts to protect public resources
Served as a model for similar rights under CEPA ‘99

39. Proposed Environmental Bill of Rights (federal Bill C-469)
Make it to committee in 2010 under the minority government before dying in the election call
Access to information, participation in lawmaking, review of federal instruments, investigations, judicial review of government decisions, civil suits against polluters

40. Bill C-469 (con’t)
Includes a public trust duty on government to protect resources
Addresses standing, costs, reverse onus, remedies
Combines elements of both approaches