Evidence of meeting #46 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 amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Clerk of the Committee  Mrs. Guyanne Desforges

8:45 a.m.

Conservative

The Chair Conservative James Bezan

We'll get rocking and rolling and continue flying through Bill C-469.

When we adjourned last week we dealt with the amendments to clause 23, so we're back to the main clause itself.

Are there any speakers?

Ms. Duncan.

8:45 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

Mr. Chair, there's been a number of questions that have just been asked. If you could reiterate where we're at with clause 23, the provisions that are struck down, what's still there....

8:45 a.m.

Conservative

The Chair Conservative James Bezan

On clause 23, the amendments were all defeated. Liberal 3, NDP 13, and Liberal 4 were all defeated--all those amendments. We are back to the main clause 23, unamended.

8:45 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

But as I understand, we have.... Oh, I guess it would be a separate section. Liberal amendment 5.2 is related, but I guess we vote on the main clause before we go to that.

8:45 a.m.

Conservative

The Chair Conservative James Bezan

Yes, that is a new clause, and we'll deal with that after we deal with clause 23. That's the creation of a new clause.

Let's go back to clause 23.

Mr. Woodworth.

(On clause 23--Superior Courts)

8:45 a.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Thank you very much, Mr. Chair.

Where I would like to begin today is with some evidence that was received from Dr. Elgie regarding this clause 23 and how it compares with the Ontario bill of rights, which does give a right of action to sue, which is in some respects similar to the right of action that is given in the Canadian Environmental Protection Act.

One of the salient differences between this act and both of those other statutes is that the other statutes provide that in order to be eligible to sue someone privately, one must first request an investigation by the relevant government and that investigation must contain an unreasonable result. Dr. Elgie said at least two things. One, he said he thought that requirement reduced the number of lawsuits and somehow represented a barrier to lawsuits, but he also said that the opportunity to resolve issues at an early stage in that manner is a good thing. Before I came here today I had his precise quote and it's just not in front of me at the moment. However, I think it could be generally recognized that we might agree with Dr. Elgie that it is a good thing to try to resolve issues at an early stage.

In fact we also heard from a witness from the Ontario government. In its submission it was stated at page 9 that applications for investigation have created a useful means to bring alleged contraventions of legislation and instruments to the ministry's attention. I'm just really pointing out that the absence of such a provision from clause 23 in this bill is, in my view, going to mean that we—that is, the people of Canada—will not have the benefit of that useful means to bring alleged contraventions of legislation and instruments to the ministry's attention.

As to the proposition that somehow that section in the Ontario act has prevented lawsuits from going forward--although I'm troubled by the notion that we need any more lawsuits going forward--I do notice that in the analysis provided by the Ontario government, there were 26 requests for investigations and actually only six investigations occurred. So there were 77% of the requests received that didn't result in any investigation, much less one that reached an unreasonable result. I conclude from that that in those 77% of cases at least that provision would not have in any way prevented lawsuits from going forward. I just don't buy the argument that that's any significant barrier.

The next point I would like to make is that the existence of this provision, clause 23, in a similar way as the problem in clause 16, is that courts and litigants will set environmental priorities. So for example in the case of a project regarding Hydro-Québec, if a permit is issued and if there is in any event a contravention and the possibility of serious environmental harm, the courts can order a halt to such a project or indeed even order the reversal of it under the provisions that are contained in clause 23.

Moving along very quickly, it's also important when considering the creation of a new lawsuit such as this committee is considering to consider the implications of the various limitation periods that apply. In other words, how long will developments, whether by Hydro-Québec or otherwise, be under a cloud and subject to the possibility of a lawsuit existing?

Not with regard to Hydro-Quebec, but in Ontario, section 17 of the Limitations Act provides that as long as the cause of action is undiscovered, there is no limitation period. So some environmental group might come along ten years after Highway 407 is built, and if they discover a contravention at that time and the possibility of serious environment harm, they can raise it at that point and ask the court to remedy that.

In Quebec, my impression is that section 2922 of the Quebec Civil Code allows a ten-year limitation period within which such lawsuits might be brought. And of course because these lawsuits are being brought in the Superior Court of each province, it will be up to the laws of each province to determine what the limitation period will be. So it will vary from province to province.

There are lots of problems with this clause 23. We've already adverted to the fact that subclause 23(3) indicates it's not a defence to a civil action that an activity was authorized by an exemption or other permit, and the evidence we heard on that is that even without clause 23, there are court decisions that suggest that would be applied in somewhat the same manner at least.

Another interesting thing found in clause 23 that makes it very worrisome is the way the playing field is tilted in favour of plaintiffs and against defendants. One of those ways is found in subclause 23(2), where the burden of proof is shifted from the plaintiff to the defendant. The plaintiff has an evidential burden to demonstrate a prima facie case of significant environmental harm. A prima facie case, I'm going to say, is the possibility of significant environmental harm, and once the plaintiff meets that onus or that burden then the persuasive burden of proving on a balance of probabilities that no significant environmental harm will occur rests with the defendant.

8:55 a.m.

Conservative

The Chair Conservative James Bezan

Mr. Woodworth, your time has just expired. It goes by quickly.

8:55 a.m.

Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

There is lots to be said.

8:55 a.m.

Conservative

The Chair Conservative James Bezan

Are there other comments?

Monsieur Bigras.

8:55 a.m.

Bloc

Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC

Thank you, Mr. Chair.

We will vote against clause 23, which stipulates, among other things, that every resident of Canada or entity may seek recourse in the superior courts of the relevant province to protect the environment by bringing a civil action against a person who has contravened, or is likely to contravene, an act of Parliament or a regulation.

I would refer to the comments made by Department of Justice official Kathleen Roussel when she appeared on November 22. She was pretty clear about the fact that this sort of provision does not add any needed clarity. She said, and I quote:

Civil suits are definitely handled by the superior courts as a general rule. [...] It does not normally have to be specified. [...] I think it's more to clarify, although it wasn't necessary perhaps.

It does not need to be specified because the Constitution is clear on this point. In fact, section 12 of the Constitution Act, 1867, clearly establishes that each province has the exclusive authority to make laws in relation to property and civil rights in the province. And so we believe that the use of civil law in an attempt to protect the environment should come under the authority of the Government of Quebec, since it is in a better position to determine the measure's effectiveness and scope, and ensure that it does not have a detrimental effect on the judicial system.

Furthermore, Quebec has already recognized the right to a healthy environment and to its protection, and to the protection of the living species inhabiting it. And Quebec has always taken a responsible and balanced approach to ensuring that right. To that end, Quebec established parameters defining that right and enshrined it in the province's body of law.

I encourage you to read division III.1 of the Environment Quality Act, which sets out those provisions in sections 19.1 to 19.7. I would also encourage you to read Ontario's Environmental Bill of Rights, 1993, part VI of which stipulates all the conditions under which a civil action may be brought.

Therefore, we will vote against clause 23.

8:55 a.m.

Conservative

The Chair Conservative James Bezan

Are there any other comments?

Ms. Duncan.

8:55 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

Thank you, Mr. Chair.

Where do I start? I will only reply to some of the issues raised.

In respect of the issues that Monsieur Bigras has raised, if it were the case that these kinds of actions were not allowable under federal law, then presumably section 22 of the Canadian Environmental Protection Act would not have been allowed. I'm not aware of any actions being brought to strike down that provision. If it is found to be valid in a previous federal statute, I would presume that the same rationale would have been provided for it that is provided for this.

Also, one thing that I would clarify is that this part of the bill, clause 23, is about standing. Yes indeed, citizens can seek standing to bring civil actions forward, but what this does is.... It doesn't take away from any pre-existing rights. In fact, the statute is very clear later on that in no way does this bill take away any pre-existing or otherwise existing remedies. What it does in subclause 23(1) is specify that citizens have the right. In other words, it provides for standing.

I'm a little bit puzzled by Mr. Woodworth's proposal, although I don't object to it, and I would welcome an amendment to add in that prerequisite. Maybe I could get clarification from the clerk, but it's my understanding that all the Conservative members voted against clause 14. In order for that to be a prerequisite, we would need to have the opportunity to file, to request an investigation. The two would go together. So to be consistent, we would have to retain clause 14--which, as I understand it, I think survived the vote--in order to make that a prerequisite. I would not be averse to adding that, but that's up to the members of the committee.

I think that's all I wanted to provide, except for the issue that the purpose of this is specifically tied to contraventions of environmental laws. It's not a wide-open provision where damage has occurred and may occur. It's because of a contravention of a legal requirement in the statute.

9 a.m.

Conservative

The Chair Conservative James Bezan

Thank you.

Does anyone wish to comment?

Seeing none, we shall ask the question.

9 a.m.

Bloc

Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC

I would like a recorded vote.

9 a.m.

Conservative

The Chair Conservative James Bezan

Yes, a recorded vote.

(Clause 23 agreed to: yeas 4; nays 2)

9 a.m.

Conservative

The Chair Conservative James Bezan

So we'll move over to our amendments for 23.1, creating a new clause. We have here a bunch of identical clauses.

First we'll deal with NDP 14. NDP 14, Liberal 5, and Liberal 5.1 are identical, if you look at them. I guess you can make a choice about which you go with first based upon date of submission.

9 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

I'd be happy to have the Liberal one go first if they want.

9 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

They're all identical.

9 a.m.

Conservative

The Chair Conservative James Bezan

They're all identical. Even 5 and 5.1, both coming from the Liberals, are identical.

9 a.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

I'd be happy to defer to Ms. Duncan.

9 a.m.

Conservative

The Chair Conservative James Bezan

Okay, Ms. Duncan, yours was in first. Both came in on November 16, but yours was in slightly ahead of that.

9 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

Mr. Chair, I wish to table an amendment to the effect that Bill C-469 be amended by adding after line 31 on page 14 the following new clause 23.1:

23.1(1) The plaintiff bringing an action under subsection 23(1) may only be ordered by a superior court to pay costs if the action is found to be frivolous, vexatious or harassing.

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

(a) counsel fees regardless of whether or not they were represented by counsel; and

(b) an advance cost award upon application to the court if, in the opinion of the court it is in the public interest.

(3) In exercising its discretion with respect to costs related to an action under subsection 23(1), a superior court may consider any special circumstance, including whether the action is a test case or raises a novel point of law.

9:05 a.m.

Conservative

The Chair Conservative James Bezan

Do you wish to speak to it?

9:05 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

Yes.

Mr. Chair, this provision is added in order to protect the inherent purpose of this provision. The inherent purpose of this provision is to allow Canadians to bring an action to seek recuperation or protection or restoration of a damaged area if a federal law has been violated. These are public interest applications. They are not applications seeking personal gain. There's no provision for receiving any kind of compensation or damages to the plaintiff. The very purpose is to bring the action in the public interest to ensure that where a federal act is violated and damage has occurred, the person who violated would be required to restore and so forth.

Similar to the provision mentioned before previously under the bill, it enables a litigant who brings forward a case and does not have legal counsel. From my experience, it's very hard for public interest litigants to obtain counsel, and there are very many occasions when they proceed on their own. So the intention is to compensate them for their time and provide for an advance cost award if the court feels it's in the public interest to proceed with that action. Again, that's completely within the discretion of the court if they think that the case is so important and the request for costs is critical.

In all likelihood, from experience, that would include costs to bring forward expert witnesses to speak to the damage caused and perhaps what the cost for restoration would be.

When you get to subclause (3), it specifically says this action is intended as a test case or to raise a novel point of law, and the very point is to clarify in law what duties and responsibilities are and to protect the public trust.

9:05 a.m.

Conservative

The Chair Conservative James Bezan

Mr. Woodworth.