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| Michael Cochrane |
I’ve reviewed the paper closely and commend it to anyone interested in some policy thinking about possible ways to protect the environment. However, some of the recommended policies collide with an unfortunate reality. Here are my thoughts.
I divide the LCO’s recommendations into four categories:
1. The paper recommends the addition of some broad overarching policy statements about the purpose of the EBR, such as the right to a healthy environment, environmental justice and intergenerational equity. It’s hard to argue with such lofty sentiments — I mean, is anyone against those concepts? — but what do they mean for actual environmental protection?
2. All ministries in the Ontario provincial government have an existing duty to infuse environmental values into their decision-making. The paper’s proposed amendments suggest ways in which the current process can be streamlined, for example with appeals. After 30 years of experience with the EBR it is understandable that the environmental silverware might need some spit and polish.
3. Importantly, the paper recommends that the Environmental Commissioner’s Office (ECO) be restored to its original mandate, that is, an independent body reporting directly to the Legislature. The current government instead moved it under the umbrella of the auditor’s office, which is not at all how it was originally conceived. The ECO was a linchpin to the design of the original EBR. The task force was made up of a broadly representative group of business interests, environmental groups, agriculture, lawyers, and others. That group came to a unanimous conclusion about the purpose and content of the EBR. Oversight of the implementation of the EBR by an independent ECO was a specific tradeoff designed to reduce the need for increased litigation over environmental decision-making. Upfront involvement of the public in that decision-making would lead to better decisions and therefore less litigation. Moving it from its independent reporting status undermined that goal. The OLC recommends it be restored.
So far so good.
4. However, the fourth category of proposed reforms is in direct conflict with what I have just said about the restored ECO. The paper proposes to create the opportunity for more environmental litigation by allowing any person in Ontario to sue any other person if that person causes or is likely to cause significant harm to the environment — whether they are directly affected by the matter or not — and without consequences for legal costs.
So far so good.
4. However, the fourth category of proposed reforms is in direct conflict with what I have just said about the restored ECO. The paper proposes to create the opportunity for more environmental litigation by allowing any person in Ontario to sue any other person if that person causes or is likely to cause significant harm to the environment — whether they are directly affected by the matter or not — and without consequences for legal costs.
These concepts of public litigation and no costs rules were specifically considered by the task force 30 years ago and unanimously rejected. Why? Because our courts do not have a great track record in protecting the environment and because the ECO was supposed to lead government to better decisions and therefore less litigation.
Has anything changed in the last 30 years? Yes. Our courts are in an even worse position to accommodate increased litigation than they were in 1994. Any experienced civil litigator in Ontario will confirm that the court system is struggling with unworkable backlogs. It is often described as “broken.” Read the comments of Justice Markus Koehnen in Think Research Corporation v. N&M Medical Enterprises, 2023 ONSC 6910 about the vicious cycle in which “delay begets delay.” Our justice system cannot begin to handle the workload generated by existing causes of action. Adding more things to sue about would be tone-deaf to the current dilemma faced by our courts.
Where does this leave the final paper’s recommendations? Interesting reading, some good recommendations to revitalize the ECO and to polish existing parts of the EBR. I recommend that the government take a look at those proposals. But new ways to sue each other in our current justice system? I cannot believe that those recommendations will ever see the light of day. So, not a “new” EBR but perhaps a re”new”ed one that could continue to serve the province well.
Michael Cochrane is counsel to Brauti Thorning LLP in Toronto (www.btlegal.ca). He was co-chair of the Task Force on the Environmental Bill of Rights and chair of the Attorney General’s Advisory Committee on Class Action Reform that lead to the passage of the Class Proceedings Act. He is the author of several legal texts and most recently the author of a trilogy of novels called Night Soil about a nasty Toronto divorce lawyer who is so bad, he’s good (www.michaelcochrane.ca).
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