Moving Forward: Further Research + Legal Options

Optional Next Steps:

1. Soil, water or groundwater testing.
2. Enforce an investigation through the Environmental Bill of Rights
3. Have a backer: the Canadian Environmental Law Association
4. Freedom of Information and Protection of Privacy Act (FIPPA) request
5. Litigation: Pursuing a Negligence Claim
6. Litigation: Pursuing a Nuisance Claim
   References: Legal Cases

One option for moving forward is by accessing additional information through the Freedom of Information and Protection of Privacy Act (FIPPA).

I asked James Goacher, who has a Masters in Geology, a Bachelor in Environmental Science and currently is a third year law student at Western University, for more information about the FIPPA process, as well as his opinion about what he would do if he was in a situation where he was concerned about contamination causing some sort of health effect on his property or surrounding his property.

James was aware of the Parry Sound Project and he made a point of stating that, if anyone wanted to pursue legal action, they need to consult a lawyer and that the information he provided was not legal advice.

He advised six actions he would take, if he were faced with a situation like Nobel:

Determine if there is contamination in the soil, water or groundwater. If contamination has migrated onto your private property or you believe there is contamination on public property, you should be able to conduct testing. There are two options for testing:

1. Take samples yourself and hire a private lab for testing. This option may be expensive and does not ensure accurate results because you may not be taking the samples properly or in the right location.
2. Partner with a university, college or researcher that is interested in this type of contamination and may do it for free (e.g. David Schindler has done a lot of work similar to this across Canada).

James used to work in the lab. He shared that the equipment they used would test for and list any sort of chemical in the media (soil or water).

However, having had experience from my time working in the water purification industry when I first began this research, I knew that private testing can be quite expensive and you are required to request (and pay) for a very specific list of chemicals or bacteria. This means you need to know what you’re looking for, even if the equipment available will read all chemicals or bacteria. This is why I would agree with James and suggest that you partner with a university, college or organization that would be interested in this type of contamination and may do it free of charge and have access to a lab.

Once you have the results, you will determine whether or not there is an exceedance of MOE guidelines. These guidelines are set for different types of land, which is why it is important to know the zoning of the property you are testing. Once those standards are exceeded, there are a number of possible outcomes.

Once you have data that proves there is some sort of exceedance of the MOE guidelines, you could enforce an investigation under the Environmental Bill of Rights. The legislation does not actually say that you need proof of anything but you are alleging contravention, so it is helpful to have data that supports your case.

The Environmental Bill of Rights:

• provides rights to individuals;
• overcomes the limitations in common law as common law was invented before we had environmental concerns;
• (section 74) allows two persons to apply for an investigation; and
• is meant to be the public enforcement of environmental rights.

James explained, “That’s the whole concept behind it [the Environmental Bill of Rights] because the environment is silent so unless someone brings something forward on the environment’s behalf, nothing is done.”

Another option, instead of having two persons apply for an investigation, is to partner with the Canadian Environmental Law Association, and have them move forward with the application for the investigation on behalf of citizens. This would be a beneficial option if you did not have a lawyer to bring the case forward for you.

If they find out there’s been an exceedance of the guideline, the MOECC may issue a remediation order or stop order to prevent or remediate the harm.

The costs associated with applying for an investigation through the Environmental Bill of Rights is not known.

The Canadian Environmental Law Association (CELA) is a non-profit, public interest organization established in 1970 to use existing laws to protect the environment and to advocate environmental law reforms.

CELA works to protect human health and our environment by seeking justice for those harmed by pollution and by working to change policies to prevent such problems in the first place. For almost 50 years, CELA has used legal tools to increase environmental protection and safeguard communities.

CELA’s objectives, which can be found on their website, are as follows:

• To provide equitable access to justice to those otherwise unable to afford representation for their environmental problems;
• To advocate for comprehensive laws, standards and policies that will protect and enhance public health and environmental quality in Ontario and throughout Canada;
• To increase public participation in environmental decision-making;
• To work with the public and public interest groups to foster long-term sustainable solutions to environmental concerns and resource use;
• To prevent harm to human and ecosystem health through application of precautionary measures.

Another option would be to file for further information through the FIPPA so that you know exactly what sort of information exists on this sort of contamination.

More information can be accessed at the following link:

https://www.ontario.ca/page/how-make-freedom-information-request

James elaborated on the FIPPA process:

• FIPPA can be done for the province and the municipality, which is why you need to know what sort of documents and records are held by both the province and municipality, and which documents would be relevant to the activities on the property of concern.

There are fees associated with FIPPA requests, which can be found online at the link above. To avoid excess fees it is important to have a very specific question and to include details (e.g. dates, types of permits, certificates of approvals, names of landowners, companies or ministries, lots and concessions, or anything to do with a specific property that has been issued by the municipality of the province).

There is a directory of documents on the FIPPA website in the link above as well, which will show you which ministry has what types of documents.

FIPPA officers have a duty to help you along with your research. If you are not sure that a document exists, you can ask the officer whether or not they have that information. This process may help avoid excess fees. Once they confirm the information is there, you can request that information. Similarly, if you request information from a certain ministry and they know they don’t have it but another ministry may, they have a duty to forward on that request to the appropriate ministry.

FIPPA officers have 30 days to reply to your request unless they apply for an extension of time.

If there was documentation that you thought one of the levels of government knew or ought to have known that ended up causing harm, that information would be helpful for a lawyer to assess whether or not you have a good case for a negligence claim. It would be useful to know which documents existed prior to the discovery process associated with that litigation (you would want to know what to ask for).

The following chart includes some of my personal recommendations for FIPPA requests:

If anyone from the Nobel or Parry Sound community intends to advance this research, I will donate the remaining Gumption Gear (sweaters and t-shirts) to assist with possible fundraising or awareness initiatives (such as: crowd-fundraising, Kickstarter of Indiegogo, for example).

I also know of other organizations and individuals that are interested in supporting you if you wish to pursue further investigation of this nature.

Of course, I am happy to assist in whatever way that I can with the information I know and networks I have access to.

Once you have a case and can show there is some sort of causation between the health effects and contamination, then you are able to move forward with litigation - a negligence claim.

The underlying concept of a nuisance claim is that your private land is being infringed by someone else’s activity. There are two types of nuisance:

1. private nuisance, which is where you (the landowner) believe your land is being interfered with; and
2. public nuisance, which is a neighbourhood of people that have been affected by contamination, for example.

Typically, the Attorney General will bring forward the case on your behalf. However, new statutes are coming out that are trying to improve people’s rights to bring forward these claims. An example of this is the Environmental Bill of Rights, where you have the ability to bring a public nuisance claim or a ‘cause of action’ forward without the assistance of the Attorney General. Your ‘cause of action’, for example, may be that your right to enjoy the property in a healthy and safe way has been infringed upon.

James encourages all that are interested to read through the Environmental Bill of Rights online.

If this investigative research has intrigued you… If you chose to pursue this further… If it begins a series of steps or processes that eventually leads to litigation… I suggest that you read the following lawsuits so that you can learn from them; understand what to prepare for, what to do and what not to do. Recommended lawsuits for further reading are as follows (click the link for .pdf download):

1. Blatz-v-Impact-Energy-Inc, 2009
2. Environmental-Class-Actions-for-Historical-Contamination-Smith-v-Inco-Limited, 2013
3. Exploring-the-Viability-of-Class-Actions-Arising-from-Environmental-Toxic-Torts, 2009
4. Gertsen-v-Metropolitan-Toronto-Municipality, 1973
5. Henry-v-Irving-Oil-Co, 1975
6. Metson-v-RW-DeWolfe-Ltd, 1980
7. OBrien-v-Newfoundland-Light-And-Power-Co, 1984
8. Smith-v-Inco-Ltd, 2011