The Act: Table of Contents: Part 2: Environmental Protection Action

Part 2: Public Participation - Environmental Protection Action

Circumstances when an individual may bring an action

22. (1) An individual who has applied for an investigation may bring an environmental protection action if

(a) the Minister failed to conduct an investigation and report within a reasonable time; or

(b) the Minister's response to the investigation was unreasonable.

Nature of the action

(2) The action may be brought in any court of competent jurisdiction against a person who committed an offence under this Act that

(a) was alleged in the application for the investigation; and

(b) caused significant harm to the environment.

Relief that may be claimed

(3) In the action, the individual may claim any or all of the following:

(a) a declaratory order;

(b) an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute an offence under this Act;

(c) an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent the continuation of an offence under this Act;

(d) an order to the parties to negotiate a plan to correct or mitigate the harm to the environment or to human, animal or plant life or health, and to report to the court on the negotiations within a time set by the court; and

(e) any other appropriate relief, including the costs of the action, but not including damages.

Limitation period of two years

23. (1) An environmental protection action may be brought only within a limitation period of two years beginning when the plaintiff becomes aware of the conduct on which the action is based, or should have become aware of it.

Time during investigation not included

(2) The limitation period does not include any time following the plaintiff's application for an investigation, but before the plaintiff receives a report under subsection 21(2).

No action for remedial conduct

24. An environmental protection action may not be brought if the alleged conduct

(a) was taken

(i) to correct or mitigate harm or the risk of harm to the environment or to human, animal or plant life or health, or

(ii) to protect national security, support humanitarian relief efforts, participate in multilateral military or peace-keeping activities under the auspices of international organizations or defend a member state of the North Atlantic Treaty Organization; and

(b) was reasonable and consistent with public safety.

Exception

25. An environmental protection action may not be brought against a person if the person was convicted of an offence under this Act, or environmental protection alternative measures within the meaning of Part 10 were used to deal with the person, in respect of the alleged conduct on which the action is based.

Notice of the action

26. (1) The plaintiff in an environmental protection action shall give notice of the action to the Minister no later than 10 days after the document originating the action is first served on a defendant, and the Minister shall give notice of the action in the Environmental Registry as soon as possible after receipt of the plaintiff's notice.

Notice of other matters

(2) In an environmental protection action,

(a) the court may order any party to the action to give notice to the Minister of any matter relating to the action, within the time specified by the court; and

(b) the Minister shall give notice of that matter in the Environmental Registry as soon as possible after receipt of the party's notice.

Attorney General to be served

27. (1) A plaintiff shall serve the Attorney General of Canada with a copy of the document originating an environmental protection action within 20 days after first serving the document on a defendant.

Attorney General may participate

(2) The Attorney General of Canada is entitled to participate in the action, either as a party or otherwise. Notice of his or her decision to participate shall be given to the plaintiff and be included in the Environmental Registry within 45 days after the copy of the originating document is served on the Attorney General.

Right of appeal

(3) The Attorney General of Canada is entitled to appeal from a judgment in the action and to make submissions and present evidence in an appeal.

Other participants

28. (1) A court may allow any person to participate in an environmental protection action in order to provide fair and adequate representation of the private and public interests involved.

Manner and terms of participation

(2) The court may determine the manner and terms of the person's participation, including the payment of costs.

Burden of proof

29. The offence alleged in an environmental protection action and the resulting significant harm are to be proved on a balance of probabilities.

Defences

30. (1) The following defences are available in an environmental protection action:

(a) the defence of due diligence in complying with this Act and the regulations;

(b) the defence that the alleged conduct is authorized by or under an Act of Parliament;

(c) except with respect to Her Majesty in right of Canada or a federal source, the defence that the alleged conduct is authorized by or under a law of a government that is the subject of an order made under subsection 10(3); and

(d) the defence of officially induced mistake of law.

Other defences not excluded

(2) This section does not limit the availability of any other defences.

Undertakings to pay damages

31. In deciding whether to dispense with an undertaking to pay damages caused by an interlocutory order in an environmental protection action, the court may consider any special circumstances, including whether the action is a test case or raises a novel point of law.

Stay or dismissal

32. (1) A court may stay or dismiss an environmental protection action if it is in the public interest to do so.

Factors to be considered

(2) In deciding whether to stay or dismiss the action, the court may consider

(a) environmental, health, safety, economic and social concerns;

(b) whether the issues raised in the action would be better resolved in some other way;

(c) whether the Minister has an adequate plan to correct or mitigate the harm to the environment or human, animal or plant life or health or otherwise to address the issues raised in the action; and

(d) any other relevant matter.

Remedies

33. If a court finds that the plaintiff is entitled to judgment in an environmental protection action, it may grant any relief mentioned in subsection 22(3).

Orders to negotiate plans

34. (1) A court order to negotiate a plan to correct or mitigate the harm to the environment or human, animal or plant life or health may, to the extent that it is reasonable, practicable and ecologically sound, require the plan to provide for

(a) the prevention, reduction or elimination of the harm;

(b) the restoration of the environment;

(c) the restoration of all uses, including enjoyment, of the environment affected by the offence;

(d) the payment of money by the defendant as the court may direct to achieve the plan's purposes; and

(e) monitoring the implementation of the plan and the progress made in achieving its purposes.

Before making the order, the court must take into account any efforts that the defendant has already made to deal with the harm.

Other orders

(2) The court may also make interlocutory or ancillary orders to ensure that the negotiation of the plan runs smoothly, including orders

(a) for the payment of the costs of negotiation;

(b) requiring the plaintiff or the defendant to prepare a draft of the plan; and

(c) setting a time limit for the negotiations.

Appointment of other person to prepare plan

(3) The court may appoint a person who is not a party to prepare a draft plan if the parties cannot agree on the plan or the court is not satisfied with the plan that they negotiate.

Order to prepare another plan

(4) The court may order the parties to prepare another plan if it is not satisfied with the plan that they negotiate.

Approval and effective date

(5) The court may approve a plan that the parties negotiate or a plan prepared by a person appointed under subsection (3) and the approved plan comes into effect on a day determined by the court.

Restriction on orders to negotiate plans

35. A court may not order the negotiation of a plan to correct or mitigate the harm to the environment or human, animal or plant life or health if it determines that

(a) the harm has already been corrected or mitigated; or

(b) adequate measures to correct or mitigate the harm have already been ordered under this Act or any other law in force in Canada.

Settlement or discontinuance

36. An environmental protection action may be settled or discontinued only with the approval of the court and on terms that it considers appropriate.

Settlements and orders

37. If an environmental protection action results in an order of a court or a settlement approved by a court,

(a) the resolution of any question of fact by the order or settlement is binding on a court in any other environmental protection action in which that question arises; and

(b) no other environmental protection action may be brought with respect to the offence or alleged offence dealt with by the order or settlement.

Costs

38. In deciding whether to award costs in an environmental protection action, the court may consider any special circumstances, including whether the action is a test case or raises a novel point of law.