PART 2Public Participation (continued)
Environmental Protection Action (continued)
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,
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
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.
(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
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
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
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