Environment Committee on Feb. 3rd, 2011

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chair.

We would also oppose clause 22, based on the fact that section 18.1 of the Federal Courts Act states that anyone directly affected by the matter can make an application for judicial review. Clause 22 of the bill would allow a plaintiff, "regardless of whether they are directly affected by the matter in respect of which relief is sought", to make an application for judicial review of a federal decision.

In our opinion, the reference must remain the Federal Courts Act, which states in section 18.1 that the plaintiff must have a legitimate interest to make an application.

[The Chair, Conservative, James Bezan]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

That is precisely why this provision is added in. There's been a history, in public interest litigation in Canada, of dragging out these kinds of cases and imposing more costs on a public interest litigant by making them also come forward and prove that they have some kind of a special interest and that therefore their case should be heard. Over time, precedent has been set and in fact standing has been broadened. If one reads this provision carefully, one will recognize that in fact it fetters discretion as well as broadening it, because it provides the factors that the court must consider before it will grant standing. If we took out this provision, then we would simply go back to the common law precedent, which has in many cases allowed for a lot of public interest actions, including environmental ones, to proceed. This provides some refinement.

In fact, Monsieur Bigras raised exactly that point. There's been continuous concern raised that in many cases there are areas of the nation where private property is not held, and entities--the courts and review panels--have deemed that one is only directly affected if one owns property. That excludes the public from participating in decision-making to protect, for example, a wetland that is important for migratory bird fowl, to protect an important hunting and fishing area, to protect a navigable stream. This shows that people who are not “directly affected”, which in many statutes is defined as owning property, may still bring forward this action, but they must show cause, that is, that they meet all of these requirements.

That is the intent of the provision. We're talking about environmental protection. The purpose of this is not private profit, as has been suggested by some people. The intention is that individuals or organizations who care about protecting the environment, endangered species, and navigable waters can have the opportunity to go to the courts and make sure that environmental laws on the books are enforced and that those areas are protected.

[The Chair, Conservative, James Bezan]

We shall call the question.

(Clause 22 negatived: nays 7; yeas 4)

We have a heading that says “JUDICIAL REVIEW” with no clause underneath it.

Amendment NDP-12 proposes that a new subclause 22.1(1) be added.

Ms. Duncan, could you speak to this, please?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Can I avoid reading it into the record in its entirety by summarizing again? I'm happy to read it all in.

[The Chair, Conservative, James Bezan]

You can summarize. Just move that first part and summarize after that.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay.

Mr. Chair, I wish to table an amendment proposing that Bill C-469 be amended by adding after line 4, on page 14, the following new subclauses, 22.1(1), 22.1(2), and 22.1(3).

Maybe it's easier just to read them in.

22.1(1) A plaintiff bringing an application under subsection 22(1) may only be ordered by the Federal Court to pay costs if the application is found to be frivolous, vexatious or harassing.

(2) The plaintiff referred to in subsection (1) may be entitled to

(a) counsel fees—

[The Chair, Conservative, James Bezan]

A point of order, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Chair--

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Was I reading the wrong one?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The difficulty I perceive—and this is sort of emblematic of this whole process—is that the NDP is now proposing an amendment to a clause that has been deleted. Sorry, not proposing an amendment; the NDP is proposing an amendment that refers to a clause that has been deleted from the bill. The amendment that's being—

[The Chair, Conservative, James Bezan]

We have a point of order. Let me hear this point of order first. Then I'll come back to you, Monsieur Bigras.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The amendment that is being proposed refers to a plaintiff bringing an application under subclause 22(1), and we've just voted to delete clause 22. It rather amazes me that the NDP member is persisting in moving an amendment that relates to a provision that has been deleted from the bill. I think that is out of order because it would just be a gong show if we had a clause in an bill that refers to another clause that doesn't exist.

[The Chair, Conservative, James Bezan]

Mr. Bigras, if it's on this point of order....

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Chair, I don't understand why you allowed this point of order. In fact, you shouldn't have let Ms. Duncan table this amendment because it refers to a clause that has already been rejected. It seems to me that we shouldn't have a point or order or a debate on this.

So I ask you to immediately rule on the amendment that we are in the process of discussing.

[The Chair, Conservative, James Bezan]

I will rule on it once we have it on the floor. We have to get it on the floor first and then I will rule on the admissibility of the amendment.

You haven't started speaking to it; you were still moving the amendment when there was a point of order.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm still moving the amendment.

[The Chair, Conservative, James Bezan]

Can you please finish moving the amendment, and then I will render my decision?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Perhaps, given what is about to happen, I can say “and so on”, including subclauses (2) and (3).

[The Chair, Conservative, James Bezan]

According to the interventions that we've already heard from Mr. Woodworth and Monsieur Bigras, this is inadmissible because it does refer, in both subclause 22.1(1) and subclause 22.1(3), to subclause 22(1), which is no longer in the bill. So this is no longer admissible. We are not dealing with it.

We'll move on.

(On clause 23--Superior Courts)

[The Chair, Conservative, James Bezan]

We have three amendments right off the bat on clause 23. We have Liberal amendment number three.

Monsieur Scarpaleggia.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

The purpose is essentially to reproduce subclause 18(1), except this time under the heading of “Civil Action”.

This was a recommendation of the Shipping Federation of Canada, and I just thought this particular subclause was quite confusing for them. I know there were some briefing notes produced by the Library of Parliament, our analysts, and also by another group, trying to explain the consequences of that subclause. However, I think there's a lot of uncertainty around what it means, at least from the Shipping Federation of Canada's point of view. I would just like to remove it.

[The Chair, Conservative, James Bezan]

Okay. Are there other comments?

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Chair, I have some thoughts about the fact that this provision, which the amendment seeks to remove, may be something that the courts would be implying anyway. For that reason, I want to oppose the amendment, because I think it's far better to have it on the record that this is the kind of provision that people are facing if we enact this subclause.

However, and I know it is not my right to ask a question, I said earlier that I do respect Ms. Duncan's previous expertise in dealing with the courts on environmental issues. And before I comment further, if she so chose, I would be happy to ask her whether or not she feels that in a similar way to subclause 16(4), the courts would likely engage or would likely propose this kind of a provision anyway, whether we have it in the act or not. If she doesn't wish to help me out with that, I understand and wish to speak further, but for now I'll simply offer her that opportunity.

[The Chair, Conservative, James Bezan]

Okay. Comments?

Were you going to respond, Ms. Duncan?