Sustainability and the Courts: A Snapshot of Canada in 2009

Author:Katia Opalka - Joanna Myszka
Position:Graduate of McGill University in Montreal (History `92, Common Law and Civil Law `97) and a member of the Quebec Bar - Obtained a B.A. in Political Science from McGill University (2005) as well as a Common Law and Civil Law degree from McGill University (2009)
SuStainability anD the courtS:
a SnapShot of canaDa in 2009
by Katia Opalka and Joanna Myszka*
*Katia O palka is a graduate of McGill University in Montreal (History `9 2,
Common Law and Civil Law `97) and a member of the Quebec Bar. Katia spent
six years inves tigating environmental law enforcement at the NAFT A environ-
mental commission ( before returning to private practice in
2008. As head of the Blakes LLP environmental group in Montreal, she counsels
clients in all areas of environmental law and policy. Joanna Myszka obtained a
B.A. in Poli tical Science from M cGill University (2005) as well as a Common
Law and Civil Law degree from McGill University (2009). Joanna is currently
working as an articling s tudent at Blakes, where she i s gaining experience in
many different areas of law, inc luding environmental law and policy. Prior to
her lega l career, Joanna worked in the IT depar tment of a major aerospace
company in Québec, on a part-time basis.
Canada is a country with a small population, a large
resource base, and only one big neighbor . Canada’s
influence in the post-World Wa r II pe riod owed a lot
to the role of External Affairs Minister Lester B. Pearson, who
found a peaceful resolution to the Suez Canal Crisis.1 The future
Prime Minister h elped shape the world’s imag e of Canada as a
big, green p lace populated by reasonable, peace-loving people.
Likewise, the desire of Canada’s governments and its people to
solve problems amicably has lim ited the role of the courts in
advancing sustainable development in Canada. While the gov-
ernment continues to view litigation as “un-Canadian,” citizens
and environmental groups are us ing litiga tion as a means to
protect the environment. Meanwhile, Canada’s green brand has
lost value, mainly because the government has shied away from
environmental regulation and enforcement.
use oF The courTs by The GovernmenT
We should begin by saying that sustainable development—
that is, development that meets the needs of current generations
without compromising the ability of future generations to meet
their needs—is achieved through standard-setting and planning,
not litigation. In other words, judicial action can enforce compli-
ance with plans (like land use plans) and standards (like building
codes), but it cannot fill the void when plans and standards are
lanD uSe planning
After Canada became the first industrializ ed cou ntry t o
ratify the United Nations Convention on Biological Diversity in
1992,2 it developed, but ultimately failed to put into practice, an
ecological land use planning framework3 that wo uld provide a
degree of certainty to natural resource industries (for example,
mining, oil and gas, and forestry). The framework was intended
to help establish wh ere development would be p rohibited and
where it might be allowed, subject to intense coordination across
industry sectors. For example, such co ordination coul d mini-
mize the over all impacts associated with expansion of the road
network into wild areas.4
The reason for Canada’s re lative failure to plan resource
development in a susta inable fashion lies in the constitutional
division of leg islative power s between the pr ovinces and the
federal government.5 The provi nces own most of the land in
Canada.6 I n that respect, the provinces still resemble the indi-
vidual colonies that banded together to form a compact in 1867.7
The provinces also have exclusive legislative authority, subject
to rul es of federa l paramountcy, to legislate regarding natura l
resource development on these “prov incial Crown lands.”8 In
principle, regardless of how poorly a province performs in con-
serving biodiversity on its land b ase, the federal g overnment
does not step in.
In Canada, as in the Uni ted St ates, the fe deral g overn-
ment represent s the country w hen it comes to reporting on the
implementation of international treaties.9 Because of their wide
ranging legislative jurisdiction under the Constitution, the prov-
inces play a key role in treaty implementation. Thus, in regard
to the Biodiversity Conven tion, for example, while the federal
government must report to the international community regard-
ing Canada’s progress on implementation, there is little the fed-
eral governmen t can do to force the provinces to achieve such
implementation. Similarly, the federal government cannot force
the provinces to implement the North American Agreem ent on
Environmental Cooperation (“NAAEC”),10 und er which each
of Canada, the United States, and Mexico commit to effectively
enforce their enviro nmental laws. Only Alberta, Manitoba, and
Quebec have ratified the NAAEC, and therefore, Canada is only
accountable for those three provinces as regards enforcement of
provincial environmental laws in Canada.11
For all rules, there are exceptions, and the Migratory Birds
Convention12 signed with the United States in 1916 is the excep-
tion here. Great Britain entered into the Convention on behalf of
Canada, and therefore, because of a rule in the Canadian Consti-
tution, the federal government has sole authority to implement
that treaty.13 Because birds are everywhere, the federal govern-
ment has very broad power to use the courts to enforce migra-
tory bird protection legisl ation on provincia l Crown land (and
by extension regulate natural resource extractive industries that
operate there) but has hesitated to do so.
The decision of the Supreme Court of Canada (“SCC”) in
R. v. Hydro-Québec14 is a leading SCC ruling on the federal
authority to legislate on environmental matters, but the decision
60FALL 2009
is contr oversial. In Hydro-Québec, the SCC upheld the toxics
provisions of the Canadian Environmental Protection Act, 1988
on the basis that the provisions c onstituted a vali d exercise of
the federal government’s constitutional authority to legislate
criminal law.15 That deci sion, though a victory for the federal
government, also se emed to tie its hands. Bec ause the crimi-
nal la w power is the power to create prohibitions a nd impose
sanctions, not the power to create elaborate regulatory schemes,
some commentators argue that the SCC should have upheld the
legislation as a valid exercise of the federal government’s con-
stitutional power to make laws for the “peace, order and good
government” of Canada (the “POGG Power”).16 Had the legisla-
tion be en upheld unde r the POGG Power, the federal govern-
ment w ould not hav e been left feeling ham pered in it s ability
to adopt federal environmental regulations, though here again,
views differ.17
the common law
There is no comm on law requireme nt that governme nts
enforce the law—environmenta l or otherw ise.18 There is only
potential civil liability if t he governm ent adopts an enforce-
ment polic y an d t hen acts contrary to that poli cy, causing
harm.19 Enforcement policies for federal environment al laws
in Canada are fraught with pro-
visions t hat make prosecu tion
highl y unlike ly. The polic ies
identify enforcement responses
to instances of suspected non-
compliance, reserving prosecu-
tion for cases wh ere the intent
to commit th e o ffense can be
established, and w here harm to
the environment is significant.20
Because most violations of envi-
ronmental laws are unintended,
and b ecause most violations do
not have majo r en vironmental
impact s (though tho usands of
little violations by hapless vio-
lators probabl y do), prosecution
normally does not occur.
the Department of JuStice
While a departm ent s uch as E nvironment Canada may
recommend prosecution in certain cases, the decision to press
charges is made by the Attorney General (the Department of
Justice).21 That department has its own rules for deciding which
cases will go forward.
buDgetS anD politicS
Finally, budgetary a nd political concerns a ffect the Gov-
ernment’s use of the courts to en force environment al legisla-
tion. Politicians decide whether to allocate human and financial
resources to environmental law enforcement. In Can ada, envi-
ronmental budgets have be en cut in successive rounds of pro-
gram review every couple of years since the early 1990s.22 With
most of the senior personnel at En vironment Canada, Fisher-
ies and Oceans, and all provinci al environmental departments
retired or preparing to retire, many posts have been eliminated
or left vacant.23 Because prosecution sometimes results in con-
stitutional chal lenges to the underly ing legislation24 and cross-
demands against the G overnment, private firms must be hired
and costs can quickly spir al out of control.25 Those c osts are
absorbed by departments with environmental protection respon-
sibilities. Those departments normally choose to use their scant
resources to focus on programs that are assured to deliver some
benefits for the env ironment, rather than take a risk wit h pro-
tracted litigation.26 However, Canada doe s have one notable
prosecution success story. In 1993, Tioxide Can ada Inc. was
fined four million Canadian dol lars for consistently fail ing to
heed Government deman ds that it install a system to treat its
toxic effluent before discharg ing it into the Saint Lawrence
use oF The courTs by cITIZens and
envIronmenTal Groups
As explained above, governments in Canada have generally
not relied on the courts to achieve sustainable development. This
is in part owed to a failure to adopt a planning framework a nd
regula tions that courts w ould
help enforce compliance with.
That said, ci tizens and environ-
mental groups have turned to the
courts with some success, using
the very limited regulatory tools
at their disposal. These citizens
and environmental groups have
succeeded when they have used
the publicity that comes with lit-
igation as a high profile means
of forcin g the gover nment’s
hand. Litigants have be en less
successfu l in their attempts to
get around careful ly worded
prov isions in env ironmen tal
laws that essentially allow the gov-
ernment to do nothing. Examples are provided below.
private proSecutionS (FISHERIES ACT)
Under the federal Fisheries Act, it is an offense to distu rb
or destr oy fish habitat and to discharge deleterious substances
into waters frequented by fish. 28 Individuals can bring charges
against violato rs, th ough th e prov incial or fed eral a ttorneys
general can stay t hose charges or take ove r the prosec ution.29
Private prosecutions are often stayed. When they have not been
stayed, however, private prosecutions have led to high profile
guilty verdicts, notably against municipalities.30 Environmental
scientists who were laid off by governments have helped env i-
ronmental groups, such as the Environmental Bureau of Investi-
gation, gather evidence of Fisheries Act violations. EcoJustice,
a non-governmenta l organization, has p rovided legal represen-
tation for environmenta l group s seeki ng judi cial re dress f or
Enforcement policies for
federal environmental
laws in Canada are
fraught with provisions
that make prosecution
highly unlikely
environmental wrongs.31 T hese groups document govern ment
and in dustry failures regarding complian ce with the Fisheries
Act by tracking municipal effluent quality across the country,32
discharge s from pulp and paper mills, etc. The groups also
publish publicly-availabl e guides on how to la unch a private
civil SuitS
Two interesting decisions of the SCC involving civil suits
on environmental matters are summarized below.34 Here, we
will only mention a civil suit provision in a Canadian environ-
mental statute.
Under the NAAEC, Canada committed to provide environ-
mental remedies to its citizens.35 The Canadian Environmental
Protection Act, 1999 (“CEPA”) creates an “environmental pro-
tection a ction,” a civil suit that can be launched by adult resi-
dents of Canada against a party alleged to have committed an
offense under CEPA.3 6 Pr ovided that the alleged harm to the
environment is significant, the plaintiff may apply f or various
sorts of injunctive relief, but not damages.37 Before taking such
an action , the plaintiff must have first requested that Environ-
ment Canada investigate the matter , and the n must ha ve con-
vinced a jud ge that Environment Canada’s response was either
too slow or unreasonable.38 To
our knowledge, no environmen-
tal protecti on actions have been
brought since the ac t came into
JuDicial review
Appl ications for judi cial
review are favored by environ-
mental group s in Cana da a s a
means of forcing the go vern-
ment to implement conservation
statutes such as environmenta l
assessment or endangered spe-
cies legislation. Such litigation
generall y tu rns on an ana lysis
of the admini strative authority’s
discretion—in other words, does
the ac t say “th e Minister shall” or
“the Minister m ay”? The SCC ruling in Friends of the Oldman
River So ciety v. Canada (Minister of Transport)39 is the lead-
ing case regarding ministerial discretion on permitting decisions
that trigge r environmental asse ssment requirements. The deci-
sion of the SCC in that case set in motion a process that resulted
in the adoption of the Canadian Environmental Assessment Act
The principal focus of judici al review applications u nder
CEAA has been the federal government’s reluctance to conduct
wide-ranging reviews of project environmental impacts. Though
environmental g roups have had some notable successes in this
area,41 the tendency of the Federal Court has been to stick to the
plain language of the act, which gives federal authorities broad
discretion as regards project and assessment “scoping,” provided
the agency can establish that it did not actively avoi d applying
the law—for example, by relying on a provincial agency to fol-
low up on matters covered by the federal legislation.42
Environmental group s have been somew hat su ccessful
in using judicial revie w to pressure the federal government to
develop recovery str ategies for species listed under the Species
at Risk Act.43 Here, the litigation has focused on questions, such
as whether it is reason able for the federal government not to
intervene where provincial recovery actions are potentially inef-
fectual,44 and whether the federal government must identify (and
therefore protect ) the critical habita t of a species as part of the
development and implementation of a recovery strategy, along
with the question of what is the difference between habitat and
critical habitat.45
supreme courT decIsIons
Summarized below are leading SCC decisions, rendered in
the last decade, on matters related to sustainable development.
the precautionary principleSPRAYTECH
In Spraytech v. Hudson,46 the SCC decided the constitu-
tionality of a by-law adopted by the Town of Hudson, Québec,
banning the use of cosmetic pesticides. Charged with using pes-
ticides in violatio n of the by-
law, Spraytech moved to have
the Superior Court of Québec
decl are t he by -law inop era-
tive and ultra vires the town’s
authority because it conflicted
with the provinci al Pe sticides
Act.47 The Superior Court held,
and the Québec Court of Appeal
confirmed, that Hudson had the
power t o enact the b y-law.48
The S CC uphel d the by -law
because it did not impose a total
ban on the use o f pesticides. 49
The by-law only prohibited the
use of pesticides in non-ess en-
tial cases, such as f or “pure ly
aesthetic pursuits.”50
The SCC’s decision in Spray-
tech appears to be informed by a broad vision of environmental
law and the role of government in promoting the gene ral wel-
fare. For example, Justice L’Heureux Dubé beg an her opinion
by stating that the context of the case inclu des “the realization
that our commo n future, that of every Canadian community,
depends on a healthy environment.”51 The Court deferred to the
authority of elected municipal bodies, holding that courts should
not dictate to municipalities what is best for their constituents.52
The Court also emphasized that the purpose of the by-law was in
line with the precautionary principle recognized in international
law, namely, that sustainable development polici es “anticipate,
prevent and attack the causes of environmental degradation.”53
[C]itizens and
environmental groups
have succeeded when they
have used the publicity
that comes with litigation
as a high profile means of
forcing the government’s
FALL 2009
the polluter payS principle (clean-up orDerS)—
In Imperial Oil Ltd v. Quebec (Minister of the Environ-
ment)54 the SCC decided the legality of a clean-up order issued
by the Quebec Minister of th e Environmen t (the “Minister”)
against Imperial Oil (“Imperial”) under pr ovincial polluter-pay
legislation. In the 1980s, a real estate developer discovered oil
pollution at a former Imperial oil site on the shore of the Saint
Lawrence River, oppos ite Quebec City. The land was decon-
taminated with the approval of provincial governmental authori-
ties a nd houses w ere built, b ut the poll ution resurfaced in the
1990s. Residents brought an action against the developer, the
town, Imp erial Oil, and the environment ministry.55 The Min-
ister ordered Impe rial to carry out a site assessment.56 Impe-
rial claimed that the Minister had a conflict of interes t because
the Minister had approved earlier clean-up work and was now
being sued.
In deciding that the Minister
did no t have a conflict of inter-
est, the SCC held that the Minis-
ter wears two hats, adjudicative
and managerial, and that when
the Minister issued the assess-
ment order the Mi nister w as
not adjudicating but rather per-
forming the Minister’ s jobs of
implementing Québec’s environ-
mental protection legisl ation.57
The Minister had a political duty
to addres s the contam ination
problem an d “ choose the best
course of action, from the stand-
point of the public interest.”58 The SCC went beyond analyzing
principles of administrative law when it decided Imperial Oil by
also considering the context of environmental protection legisla-
tion. As in Spraytech, the SCC emphasized that Québec environ-
mental legisla tion is concerned not only with safeguarding the
environment of today, but it is also concerned with “evidence of
an emerging sense of inter-generational solidarity and acknowl-
edgment of an environmental debt to humanity and the world of
the polluter payS principle (claSS actionS)—
In St. Lawrence Ceme nt I nc v . Ba rrette,60 residents of
Beauport, Québec, instituted a class action against St. Lawrence
Cement Inc. (“SLC”) for dust, odor, and noise nuisances related
to the operation of a local cement plant. The residents based their
claim on the general rules of fault-based civil liability, as well as
on the good-neighbour provision of the Québec Civil Code.61
Under Artic le 1457 of the Civil Code, the claimants were
required to establish fa ult, damage, and causation.62 T he SCC
reversed the Québec Court of Appeal and upheld the decision of
the trial judge, finding that SLC had not committed a civil fault
since plant operations complied with applicable standards. The
SCC also found that Article 976 of the Civil Code requires no
proof of fault.63 This article reads: “Neighbours shall suffer the
normal neighbourhood annoyances that are not beyond the limit
of tolerance they owe each other, according to the nature or loca-
tion of their land or local custom.”64
According to the SCC, conduct is not the deciding criterion
when it com es to abnormal annoyances under Article 976 .65
Rather, liability is triggered when the nuisance becomes exces-
sive or intolerable. The SCC relied on legal co mmentary and
precedent to fin d that Article 9 76 required no p roof of fault,
but the co urt also asserted that no-fault liability “furthers env i-
ronmental protection objectives” and “reinforce s the applica-
tion of the polluter-pay principle, which [the] Court disc ussed
in [Imperial Oil].”66 Quoting Imperial Oil, the SCC reinforced
the principle that, in order to promote sustainable development,
polluters should be liabl e for the dir ect and immediate costs
of pollution.67
environmental loSS
In B ritish C olumbi a v.
Can adian Fo rest Pro ducts
Ltd.,6 8 t he Brit ish Col umbia
(“BC”) government sought a
damages award again st Ca na-
dia n F orest Pr oduct s L td.
(“Canfor” ) in connection with
a forest fi re that burned 1,491
hectares of forest in the BC inte-
rior. Canfor was largely respon-
sible for the fire.69 The BC
government sued in its capacity
as owner of the land, that is, it
launched a commercial action for the diminution of the value
of timber.70 The SCC ruled that the government could also have
sued as a representative of the public, for damages r esulting
from the environmental impact of the forest fire.
The S CC held that as defender of the public interest, th e
government can sue for environmental lo ss based on the law
of public nuisance .72 Th e Cou rt co nsidered, and eventually
dispensed with, the argument t hat in s uch cases, only injunc-
tive relief is available. First, it noted that Canadian courts have
not always adhered to the narrow view that the role of the gov-
ernment i n public nuisanc e is to put a stop to the ac tivity that
constitutes an inter ference with the publi c’s rights.73 Second,
the Court indicated that, under the com mon law of the United
States, “it has long been accepted that the state has a common
law parens patriae jurisdiction to represent the collective inter-
ests of the public.”74
According to the Court, the parens patriae doctrine has led
to successful claims for monetary compensation for environmen-
tal damage in the United States, and there should be no legal bar-
rier to a government claim for compensation in an action based
on public nuisance in Canada.75 Nonetheless, the S CC refused
to assess and award such damages because complete arguments
for such a claim were not made at the trial and appellate level.76
Canada’s refusal to own
up to its shortcomings
has resulted in Canadian
delegations being
sidelined at global
Neither the common law nor Canada’s environmental stat-
utes make the government liable for failing to enforce environ-
mental laws. This makes it d ifficult for environmental groups
to require government to improve its performance in this area.
Private law is returning to the fore as a source of remedies for
citizens seeking redress for environmental wrongs. Until Canada
has a government plan for sustainable development, one that is
translated into binding s tandards, the cou rts will be of limited
assistanc e. Canad a’s inte rnational influence will continue to
There is some irony to Canad a’s predicame nt. Since the
1950’s, Canada has enjoyed an unlikely place at the sides of
the world’s powerf ul countries because of its ability to exer-
cise moral suasion effectively. In the 1980’s, when Canada and
the world began to fully appreciate the need to protect people
and nature from the negative effe cts o f eco nomic develop-
ment, the governm ent sought to gain acceptance of domes tic
environmental regulation by inviting stakeholders to do the right
thing, an approac h that had worked for Canada in international
relations. If only the federal government could work on a coop-
erative basis with industry and the provinces to achieve mutually
beneficial outcomes, it was thought, Canada would again shine
through its non-confrontational approach. Unfort unately, after
twenty years of industry self-regulation, voluntary programs,
and federal-provinci al enviro nmental ac cords, the country is
nowhere near its goal of building a sustainable economy.
Canada’s refusal to own up to its shortcomings has resulted
in Canad ian delegations being sidelined at global s ummits. In
all likelihood, it is not so much the failure itself as the refusal to
own up to it that has other countries riled. What they are prob-
ably thinking is: if the country with the second largest land base
(and one of the smallest populations) in the world cannot figure
out how to meet the needs of curr ent generations without com-
promising the ability of future generations to meet theirs, then at
the very least, we should stop taking their advice.
1 See CBC History, Suez Canal Crisis: Lester B. Pearson Pulls the World
Back from the Brink of War and Wins the Nobel Peace Prize, http://history.
id=1&page_id=3&lang=E (last visited Oct. 9, 2009) (hailing Pearson’s pro-
posal for the French and British to withdraw but allow United Nations forces to
stay, resulted in the first international peacekeeping force helping to deescalate
the Suez Canal Crisis).
2 United Nations Convention on Biological Diversity art. 27, Jun. 5, 1992, 31
I.L.M. 1004.
3 See generally i.b. marShall & p.h. Shut, agric. & agri-fooD can., a
national ecological frameworK for canaDa 2 (1999),
cansis/nsdb/ecostrat/intro.html (last visited Oct. 30, 2009) (explaining the eco-
logical framework established in response to a report by the Ecological Stratifi-
cation Working Group).
4 See can. Dept of fiSherieS & oceanS, policy for the management of fiSh
habitat 3 (1986),
politique/operating-operation/fhm-policy/page08_e.asp (last visited Oct. 10,
2009) (defining “integrated resources planning” in Canada).
5 See Constitution Act, 1867, 30 & 31 Vict., Ch. 3 (U.K.), §§ 91-92 [herein-
after Constitution Act] (showing two lists dividing legislative authority among
Parliament and provincial legislatures).
6 Id. at §. 109; see also britiSh columbia miniStry of agric. & lanDS,
crown lanD factSheet 1,
pdf (last visited Oct. 30, 2009) (noting that ninety-four percent of land in Brit-
ish Columbia is Provincial Crown land).
7 Reference Re: Offshore Mineral Rights, [1967] S.C.R. 792, 799 (Can.)
(recounting the historical development of provincial land control in British
8 See crown lanD factSheet, supra note 6, at 1.
9 laura barnett, parliamentary information & reSearch Serv., canaDaS
approach to the treaty-maKing proceSS 1, 5 (2008), available at http://www.
10 North American Agreement on Environmental Cooperation, U.S.-Can.-
Mex., art. 5, Sept. 14, 1993, 32 I.L.M. 1480 [hereinafter NAEEC], available
11 NAAEC, Canadian Implementation,
tation/implementation_e.htm (last visited Oct. 30, 2009) (noting that most envi-
ronmental legislation in Canada falls under the jurisdiction of the provinces).
12 Migratory Birds Convention Act, 1994 S.C, ch. 22, schedule 1 (Can.), avail-
able at
13 See Constitution Act, supra note 5, § 132 (“The Parliament and Govern-
ment of Canada shall have all Powers necessary or proper for performing the
Obligations of Canada or of any Province thereof, as Part of the British Empire,
towards Foreign Countries, arising under Treaties between the Empire and such
Foreign Countries.”).
14 R. v. Hydro-Québec, [1997] 3 S.C.R. 213 (Can.), available at http://csc.
15 See id. at para. 161 (finding that the provisions of the Canadian Environmen-
tal Protection Act are constitutional because the Parliament of Canada acted
within its jurisdiction pursuant to the Constitution Act, 1867).
16 Paul Muldoon & Richard D. Lundgren, The Hydro-Quebec Decision: Loud
Hurray or Last Hurrah?, law timeS, Sept. 16, 1997, available at http://www.
17 Cf. id. (explaining that the federal government is being forced to push its
environmental responsibilities onto the provinces because of budgetary con-
18 Laurentide Motels Ltd. v. City Beauport, [1989] 1 S.C.R. 705, para. 355 (Can.),
available at
html (explaining that the public authority to enforce the law is discretionary).
19 Id.
20 See environment canaDa, compliance anD enforcement policieS for the
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999 4 (2001), available at http:// (weighing mul-
tiple factors, including intent of the alleged violator, past violations, and the
seriousness of the harm when determining the nature of an alleged violation).
21 See id. (stating that Environment Canada’s enforcement activities include
measures to compel compliance through court action but remaining silent on
how such actions are initiated).
Endnotes: SuStainability anD the courtS: a SnapShot of canaDa
in 2009
Endnotes: Sustainability and the Courts: A Snapshot of Canada
in 2009 continued on page 89