The EBR Litigation Rights: Six Years of Experience

A Review of the Decisions and Cases, 1995-2000

The EBR contains two new distinct legal rights and enhances two existing legal rights.
Collectively, these rights – right to sue for harm to a public resource, whistle-blower protection,
right to sue for public nuisance, and leave to appeal – are referred to as the litigation rights
because they enable members of public to go to court or an adjudicative tribunal to resolve
disputes about environmental decision-making. Since the EBR was proclaimed, the leave to
appeal right has been used extensively, the two right to sue rights have been used minimally, and
the whistle-blower protection right has not been utilized at all.
Under section 57 of the EBR, the Environmental Commissioner of Ontario (ECO) is
required to review the public’s recourse to the litigation rights (subsections (h), (k), & (l)). In
past years, the ECO has fulfilled this obligation by including information in the annual reports (the
“other legal rights” chapter in particular). The ECO has also updated and published the “Nuts and
Bolts” paper which provides an overview of the EBR rights and how they have been used .
However, this information has tended to be descriptive. To date, the ECO has not undertaken a
thorough evaluation of the use of the litigation rights. Such an evaluation could be informative as
to the types of action the ECO could undertake or recommend to improve the public’s access to
these rights.
In order to fulfil the obligations set out in the EBR, the ECO has begun a more detailed
evaluation of the litigation rights. Initially, this involves two projects. The first is the
development of a discussion paper on the EBR litigation rights. This paper should be completed
in early to mid-November. The second project involves hosting a workshop. This workshop
would bring together individuals who are active in utilizing the EBR and invite them to share their
thoughts and concerns on how these rights are being used (or not being used). It would provide a
forum to solicit a broad range of opinions and ideas on the role and effectiveness of the litigation
rights. The feedback received from the workshop and from the distribution of the discussion
paper would provide a foundation from which the ECO could carry out its mandate to review the
litigation rights and could also be used to improve the ECO’s educational work on the EBR.

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