Law Times

Page 10 November 21, 2016 • Law Times www.lawtimesnews.com Ontario's Environmental Bill of Rights left behind? BY MICHAEL MCKIERNAN For Law Times O ntario's once ground- breaking Environ- mental Bill of Rights has been left behind by more than two decades of leg- islative stasis, according to some environmental activist groups. But organizations such as Ecojustice and the Canadian Environmental Law Association hope to use a government re- view to get Ontario back on the cutting edge when it comes to environmental rights legislation. CELA counsel Richard Lind- gren took part in the task force that drafted the EBR back in the early 1990s, before its proclama- tion in force during Bob Rae's tenure as NDP premier of On- tario in 1994. "It was pioneering in many respects, particularly in rela- tion to public participation. It provided Ontario residents with tools that can lead to enhanced environmental protection and governmental accountability," Lindgren says. Under the bill of rights as it stands, Ontarians are able to ap- ply for a review of laws and poli- cies that could impact on the en- vironment and can also request investigations into alleged envi- ronmental offences. However, that doesn't go far enough, ac- cording to Lindgren, who notes that provincial ministries are under no obligation to respond in a timely or appropriate way to those applications. "The problem with the EBR in its current form is that it is really just a collection of proce- dural rights, with no substan- tive ones built in. That is a major shortcoming," Lindgren says. "A lot has changed in 20 years," according to Ecojustice lawyer Kaitlyn Mitchell, who says Ontario's EBR "is definitely in need of an update." "We recognize that it is still a really important piece of legis- lation that has achieved a lot in terms of promoting transparen- cy," says Toronto-based Mitchell. "But now that we have watched it in action for so long, we can see where it is not living up to its objectives." A key demand from both groups would see the EBR rewritten to include a legally en- forceable right to a "healthy envi- ronment." Mitchell says more than 100 countries around the world have incorporated similar lan- guage into their constitutions, encompassing rights to access clean air and water, safe food supplies and a stable environ- ment. According to Mitchell, adding such a substantive right would allow Ontario residents to take legal action against po- tential acts of environmental harm, including drinking water contamination, air pollution and the destruction of natural habitat. Ecojustice has also asked Ontario's ministry of the envi- ronment and climate change to consider incorporating certain environmental concepts into the bill of rights. They include: the "polluter pays principle," which extends responsibility for damage and cleanup costs to those who harmed the natural environ- ment; the "precautionary prin- ciple," under which preventive measures for potentially serious or irreversible damage cannot be held up simply because of a lack of scientific certainty about the threat; and inter-generational equity, which commits each generation to passing on the natural and cultural resources of the planet in at least as good a condition as they found it. "These are quite common in environmental statutes these days, but Ontario is missing them because they weren't so popular in 1993," Mitchell says. Dianne Saxe, the environ- mental commissioner of On- tario, whose office is tasked with promoting and advising on the EBR, submitted her own set of proposals to the province as it undertakes its review. She highlighted six main areas in need of attention, including an extension to appeal deadlines, and expanded investigatory and reporting powers. Michael Hebert, an environ- mental lawyer with Ottawa firm Beament Hebert Nicholson LLP, says he was underwhelmed by the ECO proposals to strength- en the EBR. "These are all good, but it feels a bit like fine-tuning," he says. "The review is certainly long overdue, but it remains to be seen what will ever become of it. I suspect there will be nothing of a revolutionary nature." LT Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 New and updated in this edition Practice and Procedural Guidance from the Authors: • Part 1 Jurisdiction of Federal Courts – An Overview, with new Notices to the Parties and the Profession and the new Practice Guidelines for Aboriginal Law Proceedings • Procedural Charts • The lists of judges and prothonotaries • List of Registry Offi ces Legislation Considered: • Federal Courts Act • Federal Courts Rules • Federal Courts Citizenship, Immigration and Refugee Protection Rules • Canada Evidence Act (excerpts) Commentary and Case Law, including: • Daniels v. Canada (Indian Affairs and Northern Development); Mouvement laïque québécois v. Saguenay (City); Ontario (Energy Board) v. Ontario Power Generation Inc.; Canadian Broadcasting Corp. v. SODRAC 2003 Inc. • Heritage Capital Corp. v. Equitable Trust Co.; Guindon v. Minister of National Revenue • Fabrikant v. Canada (Attorney General) • Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology • Sport Maska Inc. v. Bauer Hockey Corp. • Canada (National Revenue) v. Thompson • Zaghbib v. Canada (Public Safety and Emergency Preparedness) • Commission scolaire de Laval v. Syndicat de l'enseignement de la région de Laval • World Bank Group v. Wallace • Canadian Imperial Bank of Commerce v. Green Experience the freedom and fl exibility to work wherever and whenever you want, with or without an Internet connection. You can access the eBook* version of this publication on Thomson Reuters ProView™ through your web browser, or you can download it to your desktop or laptop (Windows and Mac), iPad, or Android tablet. Discover the complete collection of ProView eBooks at www.carswell.com/proview * Not available to trade bookstores, third-party distributors and academic institutions. Print + ProView Order # 987126BP-65203 $192 Hardcover + ProView eBook November 2016 approx. 1540 pages ProView only A08152-17ON-65203 $165 Print only 987126-65203 $165 1-2 additional annotated supplements $20-$30 per supplement Annual volumes available on standing order subscription Practice Advisor available upon request with standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. A professional grade platform that allows you to A professional grade platform that allows you to interact with your eBooks in entirely new ways. interact with your eBooks in entirely new ways. This free app allows you to access your most This free app allows you to access your most trusted reference materials where you need them trusted reference materials where you need them This free app allows you to access your most This free app allows you to access your most trusted reference materials where you need them trusted reference materials where you need them • New highlighting options let you choose from • From the library view, you can perform a downloaded eBook within your own Thomson Reuters ProView library. • A layered table of contents allows you to drill • A layered table of contents allows you to drill down to find what you need while keeping down to find what you need while keeping track of your path. • From the library view, you can perform a search that returns results from any downloaded eBook within your own downloaded eBook within your own Thomson Reuters ProView library. Thomson Reuters ProView library. New Edition Federal Courts Practice 2017 Brian J. Saunders, Donald J. Rennie, and Graham Garton © 2016 Thomson Reuters Canada Limited 00240MT-A70108-CM FOCUS Kaitlyn Mitchell says the province's Environmental Bill of Rights requires an update. MOODIE MAIR WALKER LAWYERS MOODIEMAIR.COM WE'RE BUILDING A GREAT LAW FIRM. WANT IN? Moodie Mair Walker (MMW) LLP is a litigation boutique specializing in insurance defence litigation. We handle professional liability cases, product liability cases, and insurance coverage disputes. We act for both plaintiffs and defendants in serious personal injury cases, property damage cases and class actions. We're looking for a Senior Associate just like you with 4-5 years' experience to join our insurance defence team. You want more than anything to be a trial lawyer. You already have courtroom experience and have mastered the ability to handle insurance defence files both independently and cost effectively – while achieving excellent results. You bring strong advocacy skills along with outstanding client and practice management skills. Please send your current resume, academic transcripts and a sample of your writing to lhoff@moodiemair.com. MoodieMair_LT_Nov21_16.indd 1 2016-11-14 3:19 PM

• Cover