3Substantive Law – Main Approaches Common law (tort & property)Environmental bills of rightsRegulatory legislationAdministrative law reviewCriminal lawsentencing
4The Common Law Approach Traditional causes of actionPros & consModern context: statutory torts, class actions, environmental rights and SLAPPs
5Historically, 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
6Case 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”
7What are the pros and cons of using civil litigation to control environmental harm?
8Con: choice of an appropriate cause of action can be problematic You may need personal injury or private property damageThere may be specialized standing rules
9Options: private nuisance, public nuisance, negligence, Rylands v Options: private nuisance, public nuisance, negligence, Rylands v. Fletcher (civil strict liability), trespass, riparian rights
10Private NuisanceDef/an unreasonable interference with the use or enjoyment of land owned or occupied by the plaintiffNo intention or negligence by defendant is needed, nor does the defendant need to be a property owner.
11Private 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 damageFor lesser interferences with use and enjoyment, the parties’ interests are balanced and the plaintiff will only succeed if the defendants’ actions are unreasonable
12Public NuisanceDef/a nuisance committed against the public at large i.e., interference with the health, safety, comfort or convenience of the communityIssues: specialized standing, class actions, eligible damages
13Public 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
14Public 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
15Public Nuisance – “Special Damage” Personal injury and property damage are always special damageFor 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” testWhether pure economic losses count is particularly problematic.
16NegligenceDef/failure to use reasonable care to prevent foreseeable harmMany elements: duty of care, breach (fault), actual damage, foresee ability, cause in fact, proximate causeUseful in the absence of property interests and where the plaintiff is at partial fault
17Rylands 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 consequencesNo negligence; it is not a nuisance because plaintiff need not be a landowner
18TrespassDef/a direct, intentional invasion of the plaintiff’s land, even if no actual damage occursTrespass to the person can also occur
19Riparian RightsDef/riparian owners are entitled to the natural flow of water without sensible alternation of its quantity or qualityDomestic and/or reasonable use of water by upper riparians must not diminish the quality or quantity for use by lower ripariansGreatly affected by statutory licencing regimes in Canada
20Other pros and cons in addition to standing rules and specialized elements of each tort (e.g.. Land ownership)?
21Con: 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
22Cons: the need to prove causation can be problematic due to scientific uncertainty and/or multiple defendantsPossible solutions:Reverse onus e.g.. EBRsPartial liability e.g.. US doctrines like probalistic causation, market share liability
23Cons: Actions are ad hoc not part of an overall land use plan Remedies (typically damages) are after-the-fact i.e. Not preventiveOnly present harm compensable
24Pros: Can win Can recover private losses Can compel government to act Is under control of the injured person
25Pros: Polluter is made to bear the responsibility If injunction awarded, can stop the damagePublicity about issues and an educational function can be served
26Various 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.
27Statutory TortsModern statutes that set out the regulations controlling pollutant discharges usually establish statutory torts.Breach of Act or Regulations = actionable civil wrongUnlike EBRs they are limited to personal injury or property damage
28Class ActionsMost provinces now have statutes to permit class actions where groups are injured by civil wrongs, including environmental cases.Alleviate standing and costs requirementNeed to have class “certified” as a 1st step
30Public 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.
31Public Environmental Rights/Public Trust Canfor (SCC 2004) – Crown has parens patriae jurisdiction to sue for damage to public resources via public nuisance or negligence actionsU.S. public trust doctrine discussed favourably – Court sees potential for common law to develop on its own
32SLAPPs Strategic Lawsuits Against Public Participation Misuse of frivolous litigation against concerned NGOs to drain money and resourcesU.S. idea of anti-SLAPP statutes to provide cost-effective and expedited procedure to see such claims dismissed
33EBRs Environmental Bills of Rights Idea was to make statutory changes to the common law to alleviate issues with standing, costs, remedies
34Yukon Environment ActIncreased ability to go to Court (judicial accountability model)Individual right to take action against polluters, or governmentEnvironmental damage per se is actionableRemedies focus on environmental restoration
35Yukon Environment Act (con’t) Some reverse onus provisions and discretionary intervenor fundingAlso creates a public trust action where government fails to take sufficient steps to protect resourcesPetition and investigation rights
36An 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.
37Ontario EBRIncreased access to information and ability to provide input in advance of various decisions e.g. to issue licences, to amend regulationsFocus is on taking action against government to compel investigations and reviews (political accountability)
38Ontario EBR (con’t)If procedural steps fail, there is a “last report” access to the Courts to protect public resourcesServed as a model for similar rights under CEPA ‘99
39Proposed Environmental Bill of Rights (federal Bill C-469) Make it to committee in 2010 under the minority government before dying in the election callAccess to information, participation in lawmaking, review of federal instruments, investigations, judicial review of government decisions, civil suits against polluters
40Bill C-469 (con’t)Includes a public trust duty on government to protect resourcesAddresses standing, costs, reverse onus, remediesCombines elements of both approaches