CELA Annual Report, 2005 - excerpted article

In the Courts

Since its inception in 1970, CELA has been involved in countless precedent-setting cases under federal, provincial and common law. 

CELA lawyers appear at all levels of trial and appellate courts, including the Supreme Court of Canada, and engage in civil actions, private prosecutions, appeals, judicial review applications, and “friend of the court” interventions.  CELA lawyers also participate in administrative hearings before various tribunals (e.g., Environmental Review Tribunal, Ontario Municipal Board, Joint Board, etc.) and special commissions (e.g., Walkerton Inquiry).

 As a legal aid clinic, CELA’s clients are generally low-income individuals or non-profit citizens’ groups.  In some instances, CELA has commenced litigation in its own name in order to pursue matters of public interest.

Over the years, CELA’s casework has covered a diverse range of procedural and substantive issues in different legal contexts.  In some situations, CELA’s casework has led governments to pursue legislative, regulatory or policy reforms to address the issues raised by CELA’s litigation. 

Illustrative examples of casework undertaken by CELA since 2002 are described below.  The following overview is in no way an exhaustive summary of all of CELA’s cases over the past three years. More detailed information about these and other cases is provided on-line.

Interpreting Ontario’s EA Act: Sutcliffe v. Minister of Environment
On behalf of farmers living near a landfill site in Napanee, CELA sought judicial review of a Ministerial decision under the Environmental Assessment Act to “scope” or narrow the range of matters to be addressed in the proponent’s environmental assessment (EA) for expanding the site.  The Ontario Court of Appeal’s decision in 2004 clarified the nature and extent of the Minister’s jurisdiction to scope EA’s, and it currently stands as the leading case on this important issue.  Public concern about “scoping” and other EA issues prompted the provincial government to establish an EA Advisory Panel (of which CELA was a member) to develop EA reforms for Ontario (see “On the Land”, article linked below).

Class Proceedings, Costs and Contamination: Pearson v. Inco
A representative plaintiff was unsuccessful in launching a class proceeding in respect of property contamination caused by a nickel refinery in Port Colborne and he was ordered to pay sizeable costs to the defendants.  Upon his appeal to the Ontario Court of Appeal in 2005, CELA teamed up with the Environmental Commissioner of Ontario and Sierra Legal Defence Fund to intervene on the issue of appropriate cost award principles in class proceedings.  CELA’s intervention was a follow-up to CELA’s prior involvement in the Attorney General’s Advisory Committee on Class Action Reform, which helped draft the Class Proceedings Act.  The plaintiff was successful on appeal and the costs decision is pending.

Protecting Water Quality: R. v. Kingston
A municipality was convicted of offences under the federal Fisheries Act after the court found that “deleterious substances” had leaked from a closed landfill into an adjacent river.  Upon further appeal to the Ontario Court of Appeal, CELA intervened on behalf of Pollution Probe to address the proper interpretation of the anti-pollution provisions of the Fisheries Act.  In 2004, the Court upheld the convictions, and the decision is widely regarded as an important water pollution precedent.

Pesticides and Public Health: CropLife Canada v. Toronto
A pesticide industry association attacked the validity of a Toronto by-law that limited the application of pesticides within the city.  On its own behalf and on behalf of community and public health groups, CELA intervened in this matter.  In 2005, the Ontario Court of Appeal followed the Supreme Court of Canada decision in Spray-Tech v. Hudson (in which CELA had also intervened), and affirmed Toronto’s jurisdiction under the Municipal Act, 2001 to regulate pesticide use. A subsequent leave application by CropLife to the Supreme Court was dismissed with costs.  Numerous other municipalities in Ontario and across Canada have now passed or proposed similar by-laws.

Protecting Water Quantity: German v. Minister of Environment
CELA’s client sought judicial review of an attempt by the Environment Minister to overturn restrictions imposed by the Environmental Review Tribunal upon a private company’s permit to take water from the Tay River near Perth.  Policy reforms and regulatory changes (including a moratorium) were subsequently introduced by the provincial government to address widespread public concern over Ontario’s water-taking regime.  Thereafter, the company’s water-taking permit was significantly restricted by the Director under the Ontario Water Resources Act, and CELA’s client withdrew her judicial review application in 2004.

Patenting Life Forms: Harvard College v. Canada
An applicant judicially challenged the refusal by the Commissioner of Patents to issue a patent for genetically modified mice bred for cancer research purposes.   In the Supreme Court of Canada, CELA intervened on behalf of various public interest organizations to address the fundamental issue of whether life forms should be patentable under Canadian law.  In 2002, the Court held that higher life forms are not patentable under the Patent Act, and the decision remains as an important precedent regarding biotechnology and intellectual property.