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.