I have a problem with this amendment that Mr. Bigras is raising, because it would be contrary to the common law as it stands now in Canada.
We were provided the brief by Ecojustice on November 17, 2010. I believe that was given to everybody. They went to the effort, because this matter had come up previously, of going through some of the legal precedents. They provided us with, for example, the Supreme Court decision in Ryan v. Victoria (City), 1999, where the court stated:
Legislative standards are relevant to the common law standard of care, but the two are not necessarily co-extensive. The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does not extinguish the underlying obligation of reasonableness.
They later go on to say:
Compliance with a statutory standard of care does not abrogate or supersede the obligation to comply with the common law standard of care. The requirements are concurrent, and each carries its own penalty for breach. However, in appropriate circumstances, compliance with statutory standards may entirely satisfy the common law standard of care and thus absolve a defendant of liability in negligence.
Clearly, the court is saying that it depends on the circumstances of the case. For example, one may raise the defence of officially induced error. If a government authority leads a defendant into believing that the actions that he or she took actually would result in compliance with the law, generally they have been acquitted on that basis.
In the case of a civil action--we're talking about a civil action here, not a criminal proceeding--the courts have held in case after case that this is simply evidence that can be tabled.
In the case of this provision, subclause 16(4), it simply states that the government has the power to authorize an activity that may result in significant environmental harm; it doesn't say that the government has authorized. So it's saying that simply because there's a provision in law that gives the government the power to authorize an activity, they may or may not have exercised that. What legal precedent is saying is that even where the government has exercised that authority, and has issued an approval, that's not an absolute bar to a civil action. That's because we have a number of common-law rights that are still in existence by which the courts have held that if the person is damaged by some kind of activity, regardless of the fact that a level of government has authorized that....
Also, in the Supreme Court decision in St. Lawrence Cement Inc. v. Barrette, the court held that
Standards provided for in statutes and regulations also place limits on rights and on the exercise thereof. Many examples of this can be found in the Civil Code of Québec, in zoning rules and in environmental standards. As a result, the question of the relationship between violations of the law and civil liability needs to be examined.
The court goes on to say:
The standard of civil fault corresponds to an obligation of means. Consequently, what must be determined is whether there was negligence or carelessness having regard to the specific circumstances of each disputed act or each instance of disputed conduct.
So we have the issue that we have the common-law rights that Canadians are given, and then we have the power of the government to authorize by statute. The Supreme Court has held in numerous cases that the statutory power does not absolutely override the common law, that it can be a piece of evidence that's tabled. You also look to the due diligence of the party that is being sued.