Environment Committee on Oct. 27th, 2010

Evidence of meeting #31 for Environment and Sustainable Development in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was right.

A recording is available from Parliament.

On the agenda

Bill C-469, An Act to establish a Canadian Environmental Bill of Rights

Committee Business

MPs speaking

Also speaking

David Boyd Adjunct Professor, Resource and Environmental Management, Simon Fraser University, As an Individual

Stewart Elgie Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Christian Simard Executive Director, Nature Québec

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

I can show you my passport; it was never stamped in Spain. I mean, I can't prove with certainty, but I can prove to you on a balance of probabilities I've never been to Spain. I couldn't prove it 100%. If someone said I wasn't responsible for the Syncrude tailings pond discharge, I couldn't prove that with 100% certainty, but I could probably convince you on a balance of probabilities that I didn't cause that.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Would you agree with me, at least, that it's a much more difficult burden to prove a negative? To prove that something didn't or won't happen is a much more difficult burden than to prove it will or did.

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

I wouldn't agree in the abstract. I think it depends what the thing is. I've had to bring private prosecutions and I can tell you that for a citizen to bring one of those is almost unimaginably difficult.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

At least would you agree with me that the civil action in clause 23 in this bill does require a defendant to prove that something didn't or won't happen?

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

It requires that once the plaintiff has put forward prima facie evidence, which means enough evidence on its face, a court could draw an inference on a balance of probabilities that the harm had been caused by that defendant. So essentially, in a tennis game the plaintiff has to serve first. They don't have to prove it 100%, but they have to get to the point of putting forward a good-faith balance of evidence that this has occurred.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Are you aware that the Ontario Environmental Bill of Rights requires a request for investigation and no reasonable resolution of that before going to litigation?

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

Yes, and that's one of the reasons that I gave my last recommendation. I actually think--

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

For the moment I have asked you if you're aware of it. I know you'd like to give more information, but I am very aware of the--

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

Sorry about that. Yes, I am aware of it.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

What do you suppose are the benefits of trying, as the Ontario bill of rights does, to resolve issues before going to court?

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

I think it's a great idea.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Thank you. Would you agree with me that that idea is not carried forward to clause 23 of the bill before us?

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

I would agree with that.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Do I have time?

4:35 p.m.

Conservative

The Chair Conservative James Bezan

Yes.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Thank you.

You've had some cases in the Supreme Court in relation to environment issues. What would you say is the longest piece of environmental litigation, in terms of duration from start to finish, that you've been engaged in?

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

That I have been engaged in?

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Yes. Or maybe that you're aware of--I think I'll put it that way.

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

Probably the longest one I was engaged in was about the construction of a ski hill in Banff park.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

It's really the duration I'm interested in.

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

Oh, how long was it? It was probably 1992...probably five years.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Five years, and do you know of longer ones?

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

Oh my goodness, yes.

4:35 p.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

What would be the longest one you're aware of?

4:35 p.m.

Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual

Prof. Stewart Elgie

Well, the suit over the Exxon Valdez oil spill only got settled, finally, a few years ago. I could date that because I was one of the original litigants. That would have been probably close to 20 years. The Pearson and Inco case in Ontario would have gone on for a good decade.