PART 2Public Participation (continued)
Investigation of Offences (continued)
Marginal note:Progress reports
19 After acknowledging receipt of the application, the Minister shall report to the applicant every 90 days on the progress of the investigation and the action, if any, that the Minister has taken or proposes to take, and the Minister shall include in the report an estimate of the time required to complete the investigation or to implement the action, but a report is not required if the investigation is discontinued before the end of the 90 days.
Marginal note:Minister may send evidence to Attorney General of Canada
20 At any stage of an investigation, the Minister may send any documents or other evidence to the Attorney General of Canada for consideration of whether an offence has been or is about to be committed under this Act and for any action that the Attorney General may wish to take.
Marginal note:Discontinuation of investigation
21 (1) The Minister may discontinue the investigation if the Minister is of the opinion that
(a) the alleged offence does not require further investigation; or
(b) the investigation does not substantiate the alleged offence.
(2) If the investigation is discontinued, the Minister shall
(a) prepare a report in writing describing the information obtained during the investigation and stating the reasons for its discontinuation; and
(b) send a copy of the report to the applicant and to any person whose conduct was investigated.
A copy of the report sent to a person whose conduct was investigated must not disclose the name or address of the applicant or any other personal information about them.
Environmental Protection Action
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note: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.
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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Manner and terms of participation
(2) The court may determine the manner and terms of the person’s participation, including the payment of costs.
Marginal note: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.
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.
Marginal note:Other defences not excluded
(2) This section does not limit the availability of any other defences.
Marginal note: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.
Marginal note: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.
Marginal note: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.
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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
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.
Action to Prevent or Compensate Loss
39 Any person who suffers, or is about to suffer, loss or damage as a result of conduct that contravenes any provision of this Act or the regulations may seek an injunction from a court of competent jurisdiction ordering the person engaging in the conduct
(a) to refrain from doing anything that it appears to the court causes or will cause the loss or damage; or
(b) to do anything that it appears to the court prevents or will prevent the loss or damage.
Marginal note:Civil cause of action
40 Any person who has suffered loss or damage as a result of conduct that contravenes any provision of this Act or the regulations may, in any court of competent jurisdiction, bring an action to recover from the person who engaged in the conduct
(a) an amount equal to the loss or damage proved to have been suffered by the person; and
(b) an amount to compensate for the costs that the person incurs in connection with the matter and proceedings under this section.
Marginal note:Evidence of offence
41 (1) In an action under this Part, the record of proceedings in any court in which a defendant was convicted of an offence under this Act is evidence that the defendant committed the offence.
Marginal note:Certificate evidence of conviction
(2) In the action, evidence that a defendant was convicted of an offence under this Act may be given by a certificate stating with reasonable particularity the conviction and sentence of the defendant.
Marginal note:Signature of certificate
(3) The certificate shall be signed by
(a) the person who made the conviction; or
(b) the clerk of the court in which the conviction was made.
Once it is proved that the defendant is the offender mentioned in the certificate, it is evidence without proof of the signature or the official character of the person appearing to have signed it.
Marginal note:Civil remedies not affected
42 (1) No civil remedy for any conduct is suspended or affected by reason only that the conduct is an offence under this Act.
Marginal note:Remedies not repealed, etc.
(2) Nothing in this Act shall be interpreted so as to repeal, remove or reduce any remedy available to any person under any law in force in Canada.
Marginal note:Damages caused by a ship
(3) No claim for damage caused by a ship may be made under this Act to the extent that a claim for that damage may be made under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
- 1999, c. 33, s. 42
- 2001, c. 6, s. 112
- Date modified: