76(3) Casework Highlights

CELA Bulletin

76:3  29-January-2010

Periodic E-News from the Canadian Environmental Law Association

As we enter our 40th year at CELA, 32 of those years as an Ontario Legal Aid clinic,
this Bulletin looks back at 2009, some highlights of the "00" decade, and looks ahead to 2010

In this issue, 76(3): Casework Highlights
See also: Issues 76:1 Innovative Partnerships and 76:2 Focus on Law Reform Campaigns

  • Red Chris Mine Intervention - Supreme Court Upholds Public Participation Rights
  • Richmond Landfill Closure - Ontario's Environmental Commissioner Supports Public Interest Concerns
  • Friends of Second Marsh - On-again, off-again ethanol refinery
  • Key Legal Precedents Established by Citizen Opposition to Tire Burning Plans by Lafarge Cement
  • Some Highlights of the "00" Decade:
    • Low Income Energy Assistance: Steady Progress at the Ontario Energy Board
    • Pesticide By-law Making Powers
    • Class Proceedings
    • Protecting Water Quantity and Quality
    • Walkerton Inquiry
    • Life Form Patents - the Oncomouse
    • MOX Flights 

Legal Representation at CELA
CELA becomes involved in numerous precedent-setting cases under federal, provincial and common law. Our 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 low-income individuals or non-profit citizen's groups. In some instances, CELA has commenced litigation in its own name in order to pursue matters of public interest. CELA's casework covers 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. A few illustrative examples are highlighted here from 2009 and the past decade.

Red Chris Mine Intervention - Supreme Court Upholds Public Participation Rights 
In 2009, CELA lawyers represented six environmental groups which intervened in an important appeal (MiningWatch v. Canada) before the Supreme Court of Canada (Oct 13/09 media release).  The case focused on public participation rights and project-scoping powers under the Canadian Environmental Assessment Act (CEAA).  The Court released its decision in January 2010, and unanimously agreed with MiningWatch and the environmental intervenors that federal authorities cannot piecemeal (or split) large-scale industrial projects into smaller components in order to avoid undertaking comprehensive studies required under CEAA (view Jan 21/10 media release from CELA, Ecojustice and MiningWatch Canada)
For more information:
Kaitlyn Mitchell, Counsel (416-960-2284, ext.212) or Richard Lindgren, Counsel (613-385-1686).

Richmond Landfill Closure - Ontario's Environmental Commissioner Supports Public Interest Concerns
For several years, CELA has represented local residents who successfully opposed the proposed expansion of the Richmond Landfill near Napanee, Ontario.  CELA's clients have now focused their efforts on closing the existing landfill due to various environmental concerns. In October 2009, the Environmental Commissioner of Ontario endorsed the residents' concerns, and he recommended in his 2008-09 Annual Report (pp. 103-6; Recommendation 11) that the Ministry of the Environment (MOE) should require immediate site closure.  CELA's clients (view Oct. 6/09 media release) are now encouraging the MOE to implement this recommendation. (on-line collection about this case)
For more information: Richard Lindgren, Counsel (613-385-1686).

Friends of Second Marsh - On-again, off-again ethanol refinery
CELA represents the Friends of Second Marsh, which is opposing the proposed construction of a large ethanol refinery on public lands immediately beside the provincially significant Second Marsh on Oshawa's waterfront.  Among other things, CELA made detailed submissions in response to the proponent's application for an air/noise approval under Ontario's Environmental Protection Act.  In 2009, the proponent withdrew its initial application (view Friends Sept. 15/09 Media Release), then filed a revised application in late 2009, which was again withdrawn in early 2010.
For more information: Richard Lindgren, Counsel (613-385-1686).

Key Legal Precedents Established by Citizen Opposition to Tire Burning Plans by Lafarge Cement
In 2008, both the Divisional Court of Ontario and the Ontario Court of Appeal upheld a 2007 decision of the Environmental Review Tribunal (ERT) that granted landowners and environmental groups leave to appeal 2006 approvals by the Ontario Ministry of the Environment that would have allowed a cement company to burn, in its rotary kiln, tires and other waste materials as partial substitutes for coal and related fuels. The court decisions, the first to interpret the leave to appeal test of the Environmental Bill of Rights, (1) established that the leave test requires only demonstration of preliminary merit, or a prima facie case, (2) confirmed that MOE directors must treat the ministry's SEV as relevant policy and apply its principles, such as the ecosystem approach, regarding assessment of cumulative impacts, and the precautionary principle, respecting uncertainty of risk, before considering the issuance of approvals, and (3) confirmed as reasonable, the ERT finding that the common law constitutes relevant law to be applied under the leave test. In early 2009, Lafarge requested and MOE, the parties, and the ERT agreed to the termination of the scheduled hearing when Lafarge returned its approvals to MOE and withdrew from the proceedings. In two separate decisions in late 2009, the ERT declined to award costs against Lafarge. (on-line collection)
For more information: Joseph Castrilli, Counsel (416-960-2284, ext. 218) or Richard Lindgren, Counsel (613-385-1686)

Some Highlights of the "00" Decade

Low Income Energy Assistance: Steady Progress at the Ontario Energy Board
In addition to advancing energy poverty law reform objectives, CELA has worked for several years with fellow members of the Low Income Energy Network (LIEN) to advance these objectives in rate hearings before the Ontario Energy Board. In 2007, represented by counsel from our sister clinic, the Advocacy Centre for Tenants Ontario (ACTO), LIEN challenged an OEB decision at Divisional Court about the Board's jurisdiction to order the implementation of a low income affordability program. In a significant decision, the Divisional Court held that the OEB has the jurisdiction to consider rate affordability in its decisions.  In consideration of the Divisional Court ruling, the OEB held public consultations in 2008. A resulting report, released in March of 2009, set out the OEB's policies for a Low Income Energy Assistance Program (LEAP). Two OEB working groups were then established and asked to report on detailed implementation of LEAP: the Conservation Working Group (Aug. 13/09 report) and the Financial Assistance Working Group (Sept. 30/09 report). With the details provided in these reports, CELA and LIEN colleagues continue to advocate that the OEB take up its jurisdiction in this area.
For more information: Theresa McClenaghan, Executive Director 416-960-2284 ext. 219 theresa@cela.ca

Supreme Court of Canada Rules on Validity of Powers to Enact Pesticide By-laws: Ontario Court of Appeal Concurs
After a ten year path through the courts, the Hudson, Quebec pesticide by-law withstood two legal challenges in the Quebec courts and on appeal, the Supreme Court of Canada held that municipalities have jurisdiction under their general welfare and good government powers to pass by-laws to control use of cosmetic pesticides on private property in provinces and territories across the country. The case was also notable for holding that governments, including municipal governments, have an obligation to respect the precautionary principle. CELA intervened in the Hudson appeal on its own behalf and representing nine citizen and environmental organizations and one individual. In complementary interventions, CELA worked alongside the Sierra Legal Defence Fund (now Ecojustice) who represented three organizations in the appeal, including the Federation of Canadian Municipalities. In a subsequent attempt to challenge the validity of the Toronto pesticide by-law, CELA again intervened on its own behalf and representing community and public health groups. In 2005, the Ontario Court of Appeal followed the Supreme Court of Canada decision and affirmed Toronto

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 (now Ecojustice) to intervene on the issue of appropriate cost award principles in class proceedings.  CELA's intervention was a follow-up to our 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.
For more information:  Richard Lindgren, Counsel 613-385-1686

Protecting Water Quantity: German v. Minister of Environment
In 2002-03 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. (on-line collection)
For more information: Ramani Nadarajah, Counsel 416-960-2284 ext. 217

Protecting Water Quality: R. v. Kingston
In the late 1990s, the municipality of Kingston 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.
For more information: Theresa McClenaghan, Executive Director and Counsel 416-960-2284 ext. 219 theresa@cela.ca

The Walkerton Inquiry
For two years following the events in Walkerton, CELA counsel, research and support staff were deeply involved with the job of representing Concerned Walkerton Citizens at the Public Inquiry investigating that Ontario community's tainted water tragedy. CELA's clients were one of only a few parties to the Inquiry to fully participate in all of Phase One and Phase Two as well as at many of the public meetings, expert meetings, and in the preparation of detailed research papers. Mr. Justice O'Connor's two-part report and associated recommendations resulted in sweeping changes to law and policy governing drinking water protection in Ontario. (on-line collection)
For more information: Theresa McClenaghan, Executive Director and Counsel, 416-960-2284 ext. 219, Ramani Nadarajah, Counsel 416-960-2284 ext. 217 or Richard Lindgren, Counsel 613-385-1686

Patenting Life Forms: Harvard College v. Canada
An applicant judicially challenged the refusal by the federal 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 a large number of 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. (on-line collection)
For more information: Theresa McClenaghan, Executive Director and Counsel 416-960-2284 ext. 219 theresa@cela.ca

Mixed Oxide (Plutonium) Flights
In the summer of 2000, CELA represented six First Nations and environmental groups in launching a federal court application for judicial review against the federal Minister of Transportation, David Collenette. CELA's clients were highly concerned that the federal government, after telling the public that Mixed Oxide Plutonium fuel from the United States and Russia, destined for testing at power plants in Chalk River would not be flown within Canada, shipments were in fact flown. The case was settled on the basis that the federal government agencies would return to communities and do full consultation with consideration of the risks of flight. (on-line collection)
For more information: Theresa McClenaghan, Executive Director and Counsel 416-960-2284 ext. 219 theresa@cela.ca

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