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Glossary

Appeal

Canada’s legal system is designed to create multiple opportunities for administrative and judicial decisions to be reviewed. In many cases, the unsuccessful party in a legal proceeding can appeal to a higher level of court. The higher court will examine the lower court’s decision to see if it reflects any errors in the identification and application of the relevant law and legal principles, or if it contains any “palpable and overriding” errors of fact. If an appeal is successful, the lower court’s decision may be set aside in whole or in part.

Some environmental legislation in Canada creates mechanisms for administrative decisions to be appealed in a two-step process. For example, under Nova Scotia’s Environment Act, some decisions made by a staff person in the Department of Environment must first be appealed to the Minister of Environment. If the Minister dismisses the appeal, the appellant may then appeal the Minister’s decision in the Supreme Court of Nova Scotia. In such cases, the decision of the Court is final—the Environment Act leaves no room for appellants to take things further by appealing to the Nova Scotia Court of Appeal.

When environmental legislation creates no mechanisms for appeal, administrative decisions will be subject to judicial review.

Due Diligence

A party charged with committing a strict liability offence may avoid conviction by proving that they exercised due diligence. The standard for due diligence will be tailored to the circumstances of a specific case, as a court will consider whether the accused did everything that a reasonable person in similar circumstances would have done to avoid committing the offence. A court may also conclude that the accused had a reasonable but mistaken belief in a set of facts that, if true, would mean that their conduct was innocent, and that conclusion may also satisfy the requirements for a due diligence defence.

Duty to Consult

Over the past twenty years, landmark decisions by the Supreme Court of Canada have developed important rules and principles concerning the Crown’s duty to consult with Indigenous communities.

Most basically, the Crown’s duty to consult exists to prevent government authorities from approving or engaging in activities that could affect Indigenous communities adversely by violating their members’ Aboriginal rights or Aboriginal title.

In Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), the Supreme Court held that the Crown’s duty to consult will vary according to the kinds of activities that are being undertaken. It stated:

“The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases where the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.”

This means that the Crown’s duty to consult will often change from one circumstance to the next. Sometimes the duty to consult may involve little more than discussion; at other times, the duty to consult may mean that a proposed activity should not go forward without the explicit consent of those whose Aboriginal rights or Aboriginal title are at risk.

In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), the Supreme Court clarified another important piece of the Crown’s duty to consult. According to Haida, the Crown’s duty to consult isn’t limited to situations where Aboriginal rights or Aboriginal title have already been confirmed. Haida tells us that if the Crown has any real or constructive knowledge “of the potential existence” of Aboriginal rights or Aboriginal title, the duty to consult will be triggered.

 

Judicial Review

Some environmental legislation in Canada makes it possible for parties to challenge administrative decisions by appealing to specific boards, tribunals, government officials, or courts. When environmental legislation creates no mechanisms for appeal, administrative decisions will be subject to judicial review.

Judicial review plays an important role in the checks-and-balances system that exists between governments and courts in Canada. When a party has a reasonable belief that an administrator or government official has acted unlawfully or unfairly when making a decision, that party can apply to have a court determine if the decision-maker acted properly.

It is important to note that there are very limited circumstances in which a court will interfere with a decision-maker’s decision. Judicial review is not designed to weigh the pros and cons of policy decisions and determine whether they are good or bad; instead, it is designed to ask whether a decision-maker used their authority properly and followed the rules laid out in the statutory instruments (statutes, regulations, by-laws, etc.) that gave them the power to make the decision in the first place.

To decide whether a decision-maker has acted properly, a court will begin by determining the appropriate standard of review. The decision-maker’s conduct will then be tested against that standard. If the court finds that the decision-maker met the standard, it will dismiss the application for judicial review. If, on the other hand, the court finds that the decision-maker’s conduct fell below the standard, the court may quash the decision and remit the matter back to the decision-maker for reconsideration, or in some cases may order the parties involved to proceed in a certain way.

Officially Induced Error

A party charged with committing an environmental offence may avoid conviction by proving that they were misled into officially induced error. For example, a party charged with making a watercourse alteration without a permit might raise the defence of officially induced error by claiming that they believed they did not need a permit because a government employee told them so.

The requirements for this defence are very strict. To return to the example given above, it would not be enough for the accused to say that some government employee gave them the thumbs up. Instead, the accused would have to demonstrate that they took active steps to seek out the most appropriate official and get direct advice, and they would also have to prove that they relied on that advice when carrying out the activity for which they were charged.

Standard of Review

Judicial review plays an important role in the checks-and-balances system that exists between governments and courts in Canada. When a party has a reasonable belief that an administrator or government official has acted unlawfully or unfairly when making a decision, that party can apply to have a court determine if the decision-maker acted properly.

To decide whether a decision-maker has acted properly, a court will begin by determining the appropriate standard of review. There are two distinct standards to choose from:

(1) the correctness standard, and

(2) the reasonableness standard.

The correctness standard applies to questions of law or jurisdiction. For example, if a court has been asked to determine whether a Minister acted within or beyond their jurisdiction, that question will have a clear “yes” or “no” answer. The Minister either had the authority to act or did not have the authority to act.

The reasonableness standard applies to policy decisions. The courts will ask whether a decision-maker made a reasonable or unreasonable decision under the circumstances. The reasonableness standard gives courts considerable flexibility to be less deferential to decision-makers—even if the problems with a decision were not glaringly obvious, a court might still conclude that the decision-maker had acted improperly.

Historically courts considered a third standard, that of patent unreasonableness. However, in Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), an influential case that was decided in 2008, the Supreme Court of Canada held that the standards of correctness and reasonableness were the only two standards that should be applied in judicial review.

As you navigate this library, you will see the standard of patent unreasonableness being applied in cases that predate the Supreme Court's influential decision in Dunsmuir, but keep in mind that the law has changed significantly since then.

Strict Liability

The term “strict liability” has two different meanings that depend on the context in which it is used.

Since the mid-nineteenth century, Canadian law has included a rule saying that if a party brings a dangerous substance onto their property and that substance escapes and causes injury or property damage elsewhere, the party who brought the substance onto their property will be liable for the consequences. This “strict liability” rule is often referred to as “the rule in Rylands v. Fletcher,” as it comes from a judge’s decision in an old English case by that name.

The term “strict liability” also refers to a kind of offence that requires no mens rea (mental elements) for conviction. In many cases, before an accused can be convicted of a criminal or regulatory offence, the prosecutor must prove that the accused not only did the unlawful thing but also did it knowingly or intentionally. However, Canadian law also includes a number of offences for which parties can be convicted even if their unlawful actions were done without knowledge or intent. Strict liability offences fall into this category.

A party charged with committing a strict liability offence may avoid conviction by proving that they exercised due diligence or were misled into officially induced error.

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