Legal Tools for Citizens’ Groups

The following section outlines various legal tools that are available to you. (Note: The following information is summarized from the Sierra Legal Defence Fund’s “Legal Toolkit” Options, Strategies and Tactics for Environmental Groups).

Civil Proceedings

A civil proceeding is a suit brought by a plaintiff against a defendant in any number of areas including nuisance, negligence and trespass. It is usually based upon an “action” (statement of claim) or an “application” (notice of application). The plaintiff (you) must prove all elements of the claim, including personal loss or injury, interference with property rights or some other special damage. Depending on the claim, it can proceed on oral evidence or affidavit (sworn statement) evidence. Watch out for limitation periods, which are like expiry dates for your lawsuit.

Applications for Judicial Review

An application for judicial review is a court challenge by an applicant against a respondent to actions or decisions taken by government officials. This is most always done by affidavit. There are two broad grounds of judicial review: illegality of decision (outside of jurisdiction, abuse of discretion) and unfairness of procedure (failure to follow steps, notice, etc…) The only evidence a court will consider must be part of the “record” and includes evidence considered by the decision maker before the decision was made. This means that you have to get the evidence in before the decision is made so that it can legitimately be before the court.

Class Actions

Quebec, BC, Ontario, Saskatchewan, Manitoba, and Newfoundland and Labrador currently have class action legislation. A class action is a civil proceeding brought by a group or class of plaintiffs against one or more defendants. Check your province’s legislation for details (see the Provincial Resources section). Generally all class members are automatically part of a class action unless they choose to opt out, and no costs are to be awarded in a class action unless there has been misconduct by one of the parties or it would be unjust to deprive the successful party of costs.

Interventions

A group or individual who feels they may provide some meaningful contribution to a case may become an intervenor in a court case brought by someone else, with the court’s permission. The applicant must have an interest in the outcome of the proceedings, and must be in a position to make a useful contribution or offer a different perspective from that of the parties.

Injunctions

An injunction is an order of the court prohibiting a party from doing something or forcing them to undo something. An injunction is not available against the Crown, but an interim or interlocutory injunction is available against Crown agents, including a minister. An injunction is also available where the Crown or agent is acting unconstitutionally. Beware that an applicant for an interlocutory injunction may be required to provide an undertaking (i.e. agree to pay the costs of the injunction to the defendant if you lose).

Declarations

A declaration is a statement by the court clarifying legal status or rights. Although it is not possible to get an injunction against the Crown, it is possible to get declaratory relief.

Evidence

Rules of evidence govern what evidence is admissible, and how facts are proved. Rules vary depending on the type of legal action. When gathering and presenting evidence you have to be clear on what facts you need to prove and how you will you prove those facts.

Standing

Standing is the legal right to initiate a lawsuit. There is a 3-step test to determine who can get Public Interest standing:

  1. Is there a serious issue to be tried?
  2. Is the person applying for standing directly affected by the issues or does s/he have a genuine interest in them?
  3. Is there any other reasonable way for the issue to get to court?

Mediation

Mediation is a private and consensual decision-making process in which an impartial person (the mediator) assists people in conflict to resolve their problems. Depending on the province, mediation may or may not be mandatory.

Prosecutions: Crown and Private Prosecutions

When you become aware that an offence has been committed you may either tell the Crown and let them decide whether to prosecute, or, prosecute the offender(s) yourself. A private prosecution is a legal action brought in criminal court by an individual (as opposed to a government official).

To conduct a private prosecution you must observe an offence, speak to other witnesses and gather evidence (who, what, when, where), and swear an information before a Justice of the Peace. You must believe on reasonable grounds that the accused has committed the offence. Every individual in Canada has the right to swear an information to commence a prosecution. The Attorney General may step in and stay (stop) your prosecution. For more information about private prosecutions, see Enforcing Environmental Law: A Guide to Private Prosecution by James S. Mallet, (Edmonton: Environmental Law Centre, 2004).

Advantages of private prosecutions are that there is no need for standing, no waiting for government action and you could possibly be entitled to portion of monetary penalty. However the Attorney General may intervene to withdraw or stay charges and expert evidence may be difficult to obtain.

When the Attorney General prosecutes, his/her office has access to expert investigators, proof of intent is not required in regard to public welfare offences and there is usually public and media interest in there cases. However public prosecutions require proof beyond a reasonable doubt of the offence, evidence of lack of due diligence, and there is no right to discover the other side’s case.