Chapter 11: using the courts to protect the environment

what are the challenges of environmental litigation

many environmental court actions apply traditional legal principles, while others attempt to force new principles (e.g., cases that invoke the canadian charter of rights and freedoms

• many recent class actions on climate change are based on charter arguments

what do the courts do in an environmental context

courts must reconcile the rights of owners and occupiers of property to use and enjoy the property with the rights of their neighbours to do the same

what is standing

the right to sue

what is the traditional standing rule

the three p rule - limits standing to those with a direct and measurable interest in the dispute:

• property interest

• personal (health) interest

• pecuniary (financial) interest

what is public interest standing

standing that allows individuals or organizations to bring cases of interest before the courts even though they are not directly involved in the matter and even though their rights are not infringed

what does public interest standing require/what are the three questions to be answered in the affirmative

• is a serious issue being raised?

• does the applicant have “genuine interest” in the litigation?

• is the legal action a “reasonable and effective means to bring the challenge to court?

what is a class action

a procedural mechanism used when a large number of plaintiffs sue over the same event or set of facts

how does a class action work

one plaintiff (representative plaintiff) brings one action on behalf of all affected parties

• the class must be certified (approved) by the court

• the result of the action by the representative plaintiff binds all members of the class

how do the plaintiffs become certified

to certify, the plaintiffs must demonstrate that some issues are common to all class members’ claims and that the approach is the best way of dealing with the claims in disputes

what is an intervention

a procedural device that allows participation by parties who are not plaintiffs or defendants

what are the two types of intervention

intervention as an added party and intervention as a friend of the court

what does an added party receive

receives a fairly broad array of rights but also potential risks

• must establish an interest in the subject matter or the potential for adverse effects from a judgement

what does a friend of the court assist in

(amicus curiae) assists the court in resolving the issues by presenting submissions but is not a party

when is public interest intervention recognized and what does it allow

public interest intervention recognized when a provision of the charter is being interpreted and applied

• allows different stakeholders in society to participate in litigation that may have implications far beyond the dispute

in a civil lawsuit, the onus is on the plaintiff to prove that:

• the defendant did something that falls within an established cause of action

• the defendant’s action caused harm to the plaintiff

what is nuisance

when one person unreasonably interferes with the use and enjoyment of someone else’s property

• can be unreasonable interference with one’s land but also something that has caused injury or harm to the land

• a defence may be that the government authorized the activity in question

what is public nuisance

when a whole community is annoyed by the actions of a party

• challenge is that the government can stay the action (prevent the litigation from going forward)

• public nuisance is often seen as a barrier for members of the community to bring an action

what is trespass

the mere act of trespass (“invasion” of property) is sufficient to give rise to damages, and plaintiffs do not have to establish that any real harm occurred

• the question of whether pollution is considered trespass is contentious - some cases suggest that trespass must involve the invasion of a “physical mass” rather than invisible pollutants

what is negligence

the basis of many environmental lawsuits

three key elements must be proven in order to establish negligence:

• duty of care

• standard of care

• forseeability

what is strict liability

• “people who bring onto their land for their own use anything likely to do harm if it escapes do so at their own peril”

• if the potentially harmful material escapes and harm ensues, the defendant is liable even if they took all reasonable precautions

what are statutory causes of action

legislatures sometimes create new causes of action to give people the specific right to commence a lawsuit if conditions are met

• the canadian environmental protection act, 1999 and ontario’s environmental bill of rights, 1993 create statutory causes of action

how can statutory causes of action be summarized

• any person may bring an action if someone has violated an identified environmental law

• before bringing an action, litigants must request an investigation in accordance with the procedures outlined in the statute

• defendants will not be found liable if they can prove due diligence

• no damages are available to plaintiffs

• remedies may be ordered to address any harm done

what is the most difficult obstacle to success in environmental lawsuits

causation

what is the causation rule

causation is established when the harm suffered by the plaintiff would not have occurred “but for” the defendant’s action

• causation is established on a balance of probabilities

court cases tend to be divided into two parts:

• liability: proof of the elements of the cause of action

• remedy: relates to compensation

what do plaintiffs want for harm caused

they generally want monetary compensation (damages) and have to attach a monetary value to the harm they have suffered

what are the three categories of damages

special damages, general damages, punitive damages

what is the other option instead of monetary compensation to the plaintiff

plaintiffs may instead want a court to order a defendant to do or to refrain from doing something (equitable relief)

what is an injunction

a court that requires a defendant either to do something (mandatory injunction) or to refrain from something (prohibitory injunction)

what is a declaration

a finding of the court; may not provide relief to plaintiff but may assist in further private/public action

who are costs awarded to in canada

costs of a lawsuit are awarded to the winning party (losing party must pay costs of winner)

• the court can also choose not to award costs

what is the purpose of awarding costs

to protect defendants from frivolous lawsuits and encourage parties to settle differences before expending court resources

what are pretrial mediations

almost always attempted for the purpose of resolving a matter before it is necessary to incur the expense and expend the energy involved in a lengthy trial

what are the two main challenges in court action as an environmental protection tool

causal links and quantifying damages

• establishing causation can be difficult because the impact of environmentally damaging activities can be affected by other factors

• quantifying damages is difficult because the legal system has not evolved to be able to recognize or measure the inherent value of nature