Chapter 10 - Using the courts to protect the Environment

Question 1

What are the four purposes of Property Law?

Answer 1

1. Ownership and Rights
2. Regulating Use and Development
3. Supporting Economic Development
4. Protecting Interests

Question 2

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

Answer 2

reconcile

Question 3

What is an example environmental issues and private actions involved in private property?

Answer 3

• Building a tall fence to block neighbours yard of sunlight

Question 4

What is an example of when Canadians start a lawsuit against government to accelerate action on climate change?​

Answer 4

Youth coming to the government saying their future is being compromised by the effects of climate change

Question 5

Youth coming to the government saying their future is being compromised by the effects of climate change, this invoked what?

Answer 5

Canadian Charter of Rights and Freedoms

Question 6

True or false: Many recent class actions on climate change are based on Charter arguments​

Answer 6

True

Question 7

In order to bring a lawsuit, a person must have _________

Answer 7

standing

Question 8

What is the “three p” rule AKA?

Answer 8

Traditional Standing

Question 9

Define Traditional Standing:

Answer 9

Limits standing to those with a direct and measurable interest in the dispute.

Question 10

What are the 3 p’s involved in Traditional Standing / 3 P Rule?

Answer 10

1. Property Interest
2. Personal Interest (Health)
3. Pecuniary Interest (Financial)

Question 11

Public Interest Standing requires what three questions be answered in the affirmative?

Answer 11

1. Is a serious issue being raised?
2. Does the applicant have a “genuine interest” in the litigation?
3. Is the legal action a “reasonable and effective means to bring the challenge to court”?

Question 12

What is a Class Action?

Answer 12

A procedural mechanism used when a large number of plaintiffs sue over the same event or set of facts​

Question 13

What 3 steps are involved in the process of a Class Action?

Answer 13

1. One plaintiff brings one action on behalf of all affected parties​
2. The class must be approved by the court​
3. The result of the action by the representative plaintiff binds all members of the class

Question 14

How much plaintiffs certify in a Class Action?

Answer 14

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

Question 15

Courts have been __________ with respect to class actions involving environmental claims; but this is beginning to change

Answer 15

cautious

Question 16

Define an Intervention:

Answer 16

A procedural device that allows participation by parties who are not plaintiffs or defendants

Question 17

In an Intervention, what does an added party receive?

Answer 17

a fairly broad array of rights but also potential risks

Question 18

What is Amicus Curiae?

Answer 18

A “friend of the court”

Question 19

What does a “Friend of the court” do?

Answer 19

Assists the court in resolving the issues by presenting submissions but is not a party

Question 20

When is Public Interest Intervention recognized?

Answer 20

When a provision of the Charter is being interpreted and applied

Question 21

What is a benefit of Interventions?

Answer 21

Allows different stakeholders in society to participate in litigation that may have implications far beyond the dispute

Question 22

In a civil lawsuit, the onus is on the plaintiff to prove what two things?

Answer 22

1. The defendant did something that falls within an established cause of action, and​
2. The defendant’s action caused harm to the plaintiff

Question 23

What are the most common causes of action in environmental matters?

Answer 23

• Nuisance
• Trespass
• Negligence
• Strict liability

Question 24

Define a Nuisance:

Answer 24

When one person unreasonably interferes with the use and enjoyment of someone else’s property

Question 25

Provide an example of a Nuisance:

Answer 25

Can be unreasonable interference with one’s land but also something that has caused injury or harm to the land​

Question 26

What is a common defence in the case of a nuisance?

Answer 26

That the government authorized the activity in question​

Question 27

Define a Public Nuisance:

Answer 27

When a whole community is annoyed by the actions of a party

Question 28

What is a challenge of a Public Nuisance?

Answer 28

That the government can stay the action (prevent the litigation from going forward)

Question 29

_____________ Nuisance is often seen as a barrier for members of the community to bring an action

Answer 29

Public

Question 30

Define Trespass:

Answer 30

The mere act of trespass is sufficient to give rise to damages, and plaintiffs do not have to establish that any real harm occurred

Question 31

What is a current question regarding "trespass" and environmental issues?

Answer 31

Whether pollution is considered trespass is contentious – some cases suggest that trespass must involve the invasion of a “physical mass” rather than invisible pollutants

Question 32

Define Negligence:

Answer 32

The basis of many environmental lawsuits

Question 33

What are the three key elements to be proven in order to establish negligence?

Answer 33

1. Duty of care​ 2. Standard of care​ 3. Foreseeability

Question 34

Define Strict Liability:

Answer 34

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

Question 35

What is Strict Liability AKA?

Answer 35

the rule in Rylands v. Fletcher

Question 36

What is an example of Strict Liability?

Answer 36

If the potentially harmful material escapes and harm ensues, the defendant is liable even if they took all reasonable precautions​

Question 37

Define Statutory Causes of Action:

Answer 37

Legislatures sometimes create new causes of action to give people the specific right to commence a lawsuit if conditions are met

Question 38

What two bodies create statutory causes of action?

Answer 38

- Canadian Environmental Protection Act, 1999 - Ontario’s Environmental Bill of Rights, 1993

Question 39

What are some common Causes of Action to note?

Answer 39

- 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

Question 40

In most environmental lawsuits, ___________ is the most difficult obstacle to success

Answer 40

causation

Question 41

What is the Causation Rule?

Answer 41

Causation is established when the harm suffered by the plaintiff would not have occurred “but for” the defendant’s action​

Question 42

When is causation established?

Answer 42

On a balance of probabilities

Question 43

Court cases tend to be divided in what two parts?

Answer 43

1. Liability 2. Remedy

Question 44

What are the three categories of Damages and Remedies?

Answer 44

1. **Special** Damages 2. **General** Damages 3. **Punitive** Damages

Question 45

Define Injunction:

Answer 45

Requires defendant to do something (mandatory injunction) or refrain from doing something (prohibitory injunction)​

Question 46

_____________: a finding of the court; may not provide relief to plaintiff but may assist in further private/public action

Answer 46

Declaration

Question 47

What is the purpose of awarding costs to the "winning party"?

Answer 47

To protect defendants from frivolous lawsuits and encourage parties to settle differences before expending court resources

Question 48

True or false: The court can also choose not to award costs

Answer 48

True

Question 49

In some jurisdictions, ___________ and ____________ are mandatory

Answer 49

mediation, pretrial negotiations

Question 50

What are two main challenges of Court Action as an Environmental tool?

Answer 50

- Casual Links - Quantifying Damages

Question 51

________________ can be difficult because the impact of environmentally damaging activities can be affected by other factors

Answer 51

Establishing causation