Chapter 10 - Using the courts to protect the Environment Flashcards
What are the four purposes of Property Law?
- Ownership and Rights
- Regulating Use and Development
- Supporting Economic Development
- Protecting Interests
Courts must __________ the rights of owners and occupiers of property to use and enjoy the property with the rights of their neighbours to do the same
reconcile
What is an example environmental issues and private actions involved in private property?
- Building a tall fence to block neighbours yard of sunlight
What is an example of when Canadians start a lawsuit against government to accelerate action on climate change?
Youth coming to the government saying their future is being compromised by the effects of climate change
Youth coming to the government saying their future is being compromised by the effects of climate change, this invoked what?
Canadian Charter of Rights and Freedoms
True or false: Many recent class actions on climate change are based on Charter arguments
True
In order to bring a lawsuit, a person must have _________
standing
What is the “three p” rule AKA?
Traditional Standing
Define Traditional Standing:
Limits standing to those with a direct and measurable interest in the dispute.
What are the 3 p’s involved in Traditional Standing / 3 P Rule?
- Property Interest
- Personal Interest (Health)
- Pecuniary Interest (Financial)
Public Interest Standing requires what three questions be answered in the affirmative?
- Is a serious issue being raised?
- Does the applicant have a “genuine interest” in the litigation?
- Is the legal action a “reasonable and effective means to bring the challenge to court”?
What is a Class Action?
A procedural mechanism used when a large number of plaintiffs sue over the same event or set of facts
What 3 steps are involved in the process of a Class Action?
- One plaintiff brings one action on behalf of all affected parties
- The class must be approved by the court
- The result of the action by the representative plaintiff binds all members of the class
How much plaintiffs certify in a Class Action?
Must demonstrate that some issues are common to all class members’ claims AND that the approach is the best way of dealing with the claims in dispute
Courts have been __________ with respect to class actions involving environmental claims; but this is beginning to change
cautious
Define an Intervention:
A procedural device that allows participation by parties who are not plaintiffs or defendants
In an Intervention, what does an added party receive?
a fairly broad array of rights but also potential risks
What is Amicus Curiae?
A “friend of the court”
What does a “Friend of the court” do?
Assists the court in resolving the issues by presenting submissions but is not a party
When is Public Interest Intervention recognized?
When a provision of the Charter is being interpreted and applied
What is a benefit of Interventions?
Allows different stakeholders in society to participate in litigation that may have implications far beyond the dispute
In a civil lawsuit, the onus is on the plaintiff to prove what two things?
- The defendant did something that falls within an established cause of action, and
- The defendant’s action caused harm to the plaintiff
What are the most common causes of action in environmental matters?
- Nuisance
- Trespass
- Negligence
- Strict liability
Define a Nuisance:
When one person unreasonably interferes with the use and enjoyment of someone else’s property
Provide an example of a Nuisance:
Can be unreasonable interference with one’s land but also something that has caused injury or harm to the land
What is a common defence in the case of a nuisance?
That the government authorized the activity in question
Define a Public Nuisance:
When a whole community is annoyed by the actions of a party
What is a challenge of a Public Nuisance?
That the government can stay the action (prevent the litigation from going forward)
_____________ Nuisance is often seen as a barrier for members of the community to bring an action
Public
Define Trespass:
The mere act of trespass is sufficient to give rise to damages, and plaintiffs do not have to establish that any real harm occurred
What is a current question regarding “trespass” and environmental issues?
Whether pollution is considered trespass is contentious – some cases suggest that trespass must involve the invasion of a “physical mass” rather than invisible pollutants
Define Negligence:
The basis of many environmental lawsuits
What are the three key elements to be proven in order to establish negligence?
- Duty of care
- Standard of care
- Foreseeability
Define Strict Liability:
It means a person is held responsible for the consequences of their actions, even if they didn’t intend to cause harm or act negligently
What is Strict Liability AKA?
the rule in Rylands v. Fletcher
What is an example of Strict Liability?
If the potentially harmful material escapes and harm ensues, the defendant is liable even if they took all reasonable precautions
Define Statutory Causes of Action:
Legislatures sometimes create new causes of action to give people the specific right to commence a lawsuit if conditions are met
What two bodies create statutory causes of action?
- Canadian Environmental Protection Act, 1999
- Ontario’s Environmental Bill of Rights, 1993
What are some common Causes of Action to note?
- Any person may bring an action if someone has violated an identified environmental law
- Before bringing an action, litigants must request an investigation in accordance with the procedures outlined in the statute
- Defendants will not be found liable if they can prove due diligence
- No damages are available to plaintiffs
- Remedies may be ordered to address any harm done
In most environmental lawsuits, ___________ is the most difficult obstacle to success
causation
What is the Causation Rule?
Causation is established when the harm suffered by the plaintiff would not have occurred “but for” the defendant’s action
When is causation established?
On a balance of probabilities
Court cases tend to be divided in what two parts?
- Liability
- Remedy
What are the three categories of Damages and Remedies?
- Special Damages
- General Damages
- Punitive Damages
Define Injunction:
Requires defendant to do something (mandatory injunction) or refrain from doing something (prohibitory injunction)
_____________: a finding of the court; may not provide relief to plaintiff but may assist in further private/public action
Declaration
What is the purpose of awarding costs to the “winning party”?
To protect defendants from frivolous lawsuits and encourage parties to settle differences before expending court resources
True or false: The court can also choose not to award costs
True
In some jurisdictions, ___________ and ____________ are mandatory
mediation, pretrial negotiations
What are two main challenges of Court Action as an Environmental tool?
- Casual Links
- Quantifying Damages
________________ can be difficult because the impact of environmentally damaging activities can be affected by other factors
Establishing causation
