Environment @ Gowlings – December 2005

International News

• United Nations Climate Change Conference

• Common Declaration On Climate Change

• North American Commission For Environmental Cooperation – Coal-Fired Power Plants Submission

• Proposal To Eliminate From Environmental Assessment Projects With Insignificant Impacts

• Proposed Adoption Of New Canadian Drinking Water Guideline For MTBE

• New Clean Water Act

• Proposal For Drinking Water Quality Management Standard

Québec And Ontario:

• Great Lakes Basin Sustainable Water Resources Agreement

• Landfill Sites - Increased Powers When Issuing A Certificate Of Authorization

In The Courts:

• Supreme Court Dismisses Leave To Appeal In Croplife Decision

• Neighbourhood Annoyances: Motion To Bring A Class Action Allowed Against Canadian Pacific By Québec Court Of Appeal

INTERNATIONAL NEWS

The 11th session of the Conference of the Parties to the Climate Change Convention (CoP 11) and the first meeting of the Parties to the Kyoto Protocol (MoP 1) took place in Montréal between November 28 and December 9, 2005. CoP 11 was the largest intergovernmental climate conference since the Kyoto Protocol was adopted in 1997, with some 10,000 participants in attendance. CoP 11 resulted in the adoption of more than 40 decisions. An important accomplishment was the establishment of a compliance regime, through the adoption of compliance and enforcement procedures and the election of a Compliance Committee that will have its first meeting in Germany in early 2006. A new working group was established to discuss future commitments for developed countries for the period after 2012 that will start work in May 2006. The clean development mechanism (CDM) was strengthened by simplifying the process for methodologies and the commitment by developed countries to fund the operation of the CDM with over US $13 million in 2006-2007. Joint implementation, under Article 6 of the Kyoto Protocol was launched. This provides for Annex I Parties to implement projects to reduce emissions or remove carbon from the atmosphere in other Annex I Parties in return for emission reduction units. The Joint Implementation Supervisory Committee, the governing body for Article 6, was established.

For a full set of the decisions taken at CoP 11, see: http://unfccc.int/meetings/cop_11/items/3394.php.

A On December 6, 2005, several regional governments from around the world signed the Declaration of the Federated States and Regional Governments on Climate Change at the close of the Climate Leaders Summit hosted during the Conference of the Parties (COP 11) in Montréal by the Québec and Manitoba governments and The Climate Group. By this declaration, the signatory governments agree to continue their efforts with respect to climate change. The declaration recognizes that climate change is an urgent, global problem that requires a coordinated, collaborative response to reduce greenhouse gas (GHG) emissions for the benefit of present and future generations, that there is a need to negotiate a future global strategy to prepare for post-2012 (post-Kyoto) in order to reverse the current rise of CO 2 emissions, and that building a low GHG economy involves collaboration by all orders of government, the private sector and non-governmental organizations as well as approaches that address the challenges that exist in different parts of the world. It also recognizes that reducing GHG emissions will reduce other air pollutants and therefore have positive effects on human health and that actions taken by federal states and regional governments as well as private corporations are already benefiting the environment by reducing emissions, fostering clean and renewable energy development, and bolstering the economy by creating a market place for new and innovative technologies and green industries.

In recognizing these issues, the signatory federated states and regional governments committed to set achievable short and long term targets and objectives within their respective jurisdictions for overall GHG emission reductions. The range of solutions include market mechanisms, improved energy efficiency in buildings, consumer equipment and appliances, research and development, new industrial processes and technologies, sustainable agriculture and forestry, including the maintenance of healthy biological sinks, and the use and promotion of cleaner and greener forms of energy. The commitment also encompasses pursuing the development, exchange and implementation of best practices and strategies for emission reductions and emerging green industries as part of a sustainable development approach, the development and sharing of communications and educational strategies that increase public awareness on climate change issues and solutions, working collaboratively with other jurisdictions to commercialize more broadly clean technologies to bring about greater emission reductions and implementation of procurement policies within their respective government operations that encourage and create greater demand for climate-friendly technologies in an effort to influence the market place. The commitment is furthermore aimed towards the development, implementation and sharing of strategies to enhance adaptive capacity and knowledge to enable sectors and communities to respond to issues related to climate change and the promotion of existing and new regional partnerships on climate change to implement these measures. The parties also agreed to meet again in 2008, in parallel to the 14th Conference of the Parties to measure the progress of their commitments.

Besides encouraging other federated states and regional governments to work with them on measures that both mitigate climate change and build green economies, the signatory parties also pledged to work with different orders of government, businesses and international research and academic institutions on realistic achievable initiatives that will benefit the climate and the global economy in the long term. Nine of the ten Canadian provinces signed the Declaration (Prince Edward Island is not a signatory) as well as the Northwest Territories and Nunavut. The states of California, Connecticut, Maine, Vermont as well as the European states and regional governments of Bavaria, Upper Austria, Scotland, Wallonia, Catalonia, and the Australian states of New South Wales and South Australia, the Western Cape and the cities of Brussels, Victoria and Sao Paolo also endorsed the Declaration.

The Declaration can be found at: http://www.theclimategroup.org/assets/Declaration%20final%20version%204.doc

In August 2004, the Commission for Environmental Co-operation (CEC), a body established under the North American Free Trade Agreement, received a submission from a number of environmental NGOs alleging that the U.S. Environmental Protection Agency (EPA) had failed to enforce the U.S. Clean Water Act and Clean Air Act in relation to mercury emissions from power plants in ten American states.

On December 5, 2005 the Secretariat of the CEC confirmed its recommendation to the CEC Council that a factual record be developed for the Coal-fired Power Plant submission. The Secretariat reviewed the Submission and the response filed by U.S. authorities and concluded that a factual record is warranted to develop and present information regarding the submitters' assertions that the U.S. EPA is failing to effectively enforce the Clean Water Act by issuing or renewing NPDES permits or allowing states to issue or renew such permits that allow for point source discharges of mercury that cause or contribute to non-attainment of water quality standards for mercury in the receiving water bodies, and to examine assertions that the EPA is failing to ensure the effective adoption in the states of concern of total maximum daily loads of mercury for waterways that do not meet water quality standards for mercury. The Secretariat did not recommend a factual record for the submitters' assertions respecting control of mercury air emissions, as such issues are currently under review in litigation challenging rules recently adopted in the United States under the Clean Air Act . The Secretariat will prepare a factual record in connection with the submission if the Council, by a two-thirds vote, instructs it to do so.

Further information can be found at www.cec.org/news/details/index.cfm?varlan=english&ID=2690 .

Proposal To Eliminate From Environmental Assessment Projects With Insignificant Impacts

The Canadian Environmental Assessment Agency announced on December 19, 2005 that it is inviting the public to comment on proposed amendments to the Exclusion List Regulations under the Canadian Environmental Assessment Act that would reduce unnecessary environmental assessment screenings. The amendments would include 21 additions to the Exclusion List Regulations and would make 36 modifications to existing provisions. Exempted projects include undertakings involving structures such as buildings, fences and other associated facilities, leases within national park communities, road widening projects and railway crossings. The proposed amendments are the result of consultations during the past several years with federal departments and agencies as well as a regulatory advisory committee. The proposed amendments were published in the Canada Gazette Part I on December 17, 2005. Comments will be accepted until January 31, 2006.

For more information, as well as a link to the proposed amendments, see: www.ceaa-acee.gc.ca/013/nr051219_e.htm.

Canadian Drinking Water Guidelines (CDWGs) are established by a formal federal/provincial/territorial process with the participation of Health Canada, Environment Canada and each of the provinces and territories. The Committee on Drinking Water has proposed a CDWG for methyl tertiary-butyl ether (MTBE) of 0.015 mg/L. This is an aesthetic objective based on non-toxicological characteristics such odour and taste. The proposed CDWG for MTBE is below the level at which adverse effects due to either chemical toxicity or carcinogenicity are likely to be observed over a lifetime of exposure.

Comments on the proposed new standard and in particular its impact on Ontario stakeholders will be accepted until January 15, 2006. For more information see www.ene.gov.on.ca/envregistry/025802ep.htm .

New Clean Water Act

Bill 43, An Act to protect existing and future sources of drinking water and to make complementary and other amendments to other Acts (the Clean Water Act ) was introduced for First Reading on December 5, 2005. The purpose of the Act is to protect existing and future sources of drinking water. It establishes the area of jurisdiction of each conservation authority as a drinking water source protection area and provides that conservation authorities will act as drinking water source protection authorities in those areas. Where there is no area over which a conservation authority has jurisdiction, the Minister may make a regulation establishing a source protection area and may designate who is to exercise the duties of a source protection authority.

The Act is intended to reduce the risks to drinking water through preventive planning. Conservation authorities and municipalities will map drinking water sources and will identify those sources that need special protection and vulnerable areas. The Act proposes to give communities the tools they need to develop and implement local plans to protect these areas.

Source Protection Plans will be required to be developed by the source protection authorities in consultation with a drinking water source protection committee. This committee will be required to prepare terms of reference an assessment report and source protection plan for the source protection area. The committee is required to consult with the municipalities located within their source protection area. Where the source protection area is within the Great Lakes Basin, the terms of reference are required to consider the international agreements relating to the Great Lakes. The terms of reference are required to be submitted to the Minister.

The assessment reports are required to characterize the quality and quantity of water in the watersheds within the source protection area and set out a water budget for each watershed. Groundwater recharge areas, highly vulnerable aquifers, surface water intake protection zones and wellhead protection areas are required to be identified and assessed relative to existing and future uses. Significant drinking water threats are required to be identified. When completed, the assessment report is to be submitted to the source protection authority, the affected municipalities and the Director. The Director may approve or amend and approve the assessment, or may require an updated assessment to be prepared and submitted.

Once approved, steps are required to eliminate significant drinking water threats in vulnerable areas identified in the assessment report. The source protection plans to be prepared will:

• establish policies to eliminate significant drinking water threats;

• list activities and land uses that are to be prohibited or regulated; and

• establish criteria to govern the issuance or renewal of permits for land uses in certain areas.

Once completed, the source protection plans are to be submitted to the affected municipalities and are to be made available for public comment. The Minister may appoint a hearing officer to hold hearings on the source protection plan. Following consideration of all comments and recommendations the Minister may then approve the plan or require that the plan be amended and resubmitted for approval. Once the source protection plan is approved, any decision made under the Planning Act is required to conform to the plan. In the event of any conflict with an official plan or zoning bylaw, the plan shall prevail. In the event of a conflict with other specified provincial legislation, the provision that provides the greatest protection to the quality and quantity of water shall prevail.

Municipalities will be given the authority to pass bylaws respecting water production, treatment and storage and will have the power to enforce those bylaws within the municipality. Municipalities will be given powers relating to the issuance of permits regulating uses in certain areas, and enforcement powers in respect of those permits. The powers to enforce include the power to issue enforcement orders, to cause certain things to be done and where such an order is issued and the required work is not done, to issue an order to pay where the permit official has caused the work to be done. The Act provides for appeals to the Environmental Review Tribunal and specifies the powers of the Tribunal.

The information released by the Ministry of the Environment acknowledges the potential impact on affected persons including small and medium-sized businesses, developers and large industry as well as individual landowners. The government acknowledges the hardship they may experience. There is an acknowledgment of the enhanced role of conservation authorities and municipalities.

The Bill has been posted on the Environmental Bill of Rights Registry. Written submissions may be made until February 3, 2006.

see: http://www.ontla.on.ca/documents/bills/38_parliament/session2/b043_e.htm

The MOE has posted for comment until January 27, 2006 on the Environmental Bill of Rights Registry a draft Drinking Water Quality Management Standard. The Standard will be part of the Municipal Drinking Water Licence regime in support of the Safe Drinking Water Act, 2002. The Standard is intended to provide operating authorities with a minimum set of requirements in order to establish and maintain a basic quality management system. The proposed Standard contains four key chapters. The first chapter outlines the requirements for the development of an operational plan and defines the roles and responsibilities of the owner/operating authority while outlining the plant specific management processes to ensure high quality drinking water. Chapter 2 describes how to implement the quality management system as planned and to meet the requirements of the Standard. Chapter 3 requires the periodic review of the system and its implementation, through internal audits and management reviews and Chapter 4 outlines the requirement to revise the quality management system as necessary, based on performance checks. The Standard was developed through the Canadian Standards Association with consultation taking place across the province.

The draft Standard can be found at: www.ene.gov.on.ca/envision/env_reg/er/documents/2005/pa05e0033.pdf.

On December 14, 2005, the provinces of Québec, Ontario and eight Great Lakes states (Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin) signed an agreement to act collectively to reinforce the protection for the waters of the Great Lakes and St. Lawrence River Basin, based on the principle of sustainable development. The Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement (the Agreement) follows the commitments made by the Premiers and Governors of the provinces and states when they signed the Great Lakes Charter Annex in 2001 and reflects many comments and suggestions made during two public consultations conducted simultaneously by all ten governments in 2004 and 2005. The Agreement will help to prevent disputes and avert a potential water crisis that could put the Province of Québec at risk, given its downstream location in the Basin. The Agreement will also guard against the effects of water diversions from the Great Lakes and St. Lawrence River Basin and render impossible bulk exports of water from the Basin to other regions in North America or the world.

Besides explicitly mentioning sustainable development, the application of the precautionary principle, and climate change, the preamble of the Agreement reaffirms the roles of the federal governments and the International Joint Commission, and reiterates that nothing, is intended to affect the existing aboriginal or treaty rights of the First Nations. According to Québec's Minister of Sustainable Development, Environment and Parks, Thomas J. Mulcair, the Agreement is a concrete example of sustainable development over a very large basin that is home to unique ecosystems and the heart of economic activity for this part of the North American continent. It combines environmental protection and resource integrity with economic and social development to benefit future generations.

The ten governments have thus agreed to adopt and to each apply a prohibition of diversions outside the Basin as well as the same rules and a common standard when it comes to managing and regulating exceptions to water diversions outside the Basin. In addition, the parties to the Agreement have also agreed on a second standard and common principle for water withdrawals inside the Basin. According to the Agreement, a "water withdrawal" means the action of taking either surface water or groundwater. It covers all actions of catchment, pumping, diversion and transfer for all categories of use whether the withdrawals are made by individuals, organizations or businesses. The water withdrawals referred to in the Agreement may notably be intended for urban uses (municipal supply and distribution networks) industrial uses (use by a paper mill or a mine, for example) agriculture, or energy production (cooling of a thermal power plant, for example).

With respect to water conservation, the Agreement stipulates, that existing or future withdrawals will be subject to voluntary or mandatory water conservation programs in order to improve water use efficiency, reduce losses and waste of water and to reduce the volumes of water withdrawn. The waters contemplated by the Agreement include all waters of the Great Lakes and the St. Lawrence River Basin which include all of the tributaries flowing into them as well as the groundwaters located in the water shed. In Québec, the Basin ends at the limit of influence of tides, i.e. at the level of the city of Trois-Rivières.

Objectives of the Agreement

The objectives of the signatories of the Agreement are:

• to act together, to protect, restore, improve and manage the waters of the Great Lakes and St. Lawrence River Basin because current lack of scientific certainty should not be used as a reason for postponing measures seeking to protect the Basin ecosystems;

• to promote cooperation among the parties;

• to create a cooperative arrangement for the management of proposals to withdraw water;

• to provide common and regional mechanism to evaluate proposals to withdraw water;

• to retain state and provincial authority within the Basin;

• to facilitate the exchange of data on withdrawals and consumptive uses of water in the Basin, and

• to prevent significant adverse impacts of water withdrawals on the Basin ecosystem and its water sheds.

In order to reach those objectives, the parties agree to make the legal, regulatory or other changes required for implementation of the Agreement.

Prohibition of diversions, exceptions and management and regulation of water withdrawals

In Chapter 2 of the Agreement, the parties agreed to prohibit new diversions or the increase of existing diversions, except for clearly stipulated and strictly regulated exceptions. The exceptions concern towns, cities or the equivalent that straddle the Basin divide. Excepted diversions may only be used for public water supply purposes. According to the Agreement, excepted diversions, before they may be authorized, must meet strict requirements and comply with specific standards for exceptions including the obligation to return the withdrawn water to the Basin as well as preventing the introduction of invasive species. Furthermore, intra-basin transfers of water (i.e. from the watershed of one Great Lake to that of another Great Lake) are prohibited. Although certain exceptions are provided for, they too must respect specific requirements similar to those for diversions outside the Basin.

The Agreement sets out seven criteria in respect to a first standard for exceptions which include that the need for water cannot reasonably be avoided through the efficient use and conservation of existing water supplies, the withdrawal is limited to quantities that are considered reasonable for the purpose for which it is proposed, there is no significant adverse impact involved and the withdrawal is made in compliance with all applicable laws and treaties. Most exceptions will be subject to a Regional Review process. As a second minimum standard agreed upon by the parties, a Decision-making standard specific to the management of water withdrawals and consumptive uses in the basin is set forth in the Agreement. This standard provides for the return of the withdrawn water to the source watershed and includes the application of water conservation measures and reasonable use in a sustainable development perspective. Accordingly, for water uses in the Basin, each party to the Agreement must, through a considered process, seek to protect water resources, by establishing a program for management and regulation and determine the scope of the projects and the sectors that will be affected by the measures to regulate new or increased withdrawals within its territory.

The Agreement provides that a party shall notify the other parties of every proposal to withdraw water in the Basin in its jurisdiction which leads to a water loss of 19,000 m 3 /day or greater average in any 19-day period. The party must obtain the comments of the other parties and respond to them in respect of such proposal. The parties to the Agreement agree that they will seek to make publicly available all applications subject to management and regulations, along with a record of decisions made including comments, responses and approvals or refusals of applications. The Agreement further provides that, at least every five years, the parties will conduct an assessment of the cumulative impacts of water withdrawals, which will serve as a basis for revising the standards set forth under the Agreement. A party may also, when such recourse is available under domestic law, seek judicial review of a decision in a competent court of another party.

Programs

The parties, in Chapter 3 of the Agreement, agree to gather and share comparable information on all diversions and on water withdrawals in excess of 379 m 3 /day. The parties will require users to report their monthly withdrawals, consumptive uses and diversions of water on an annual basis.

The parties further commit to implement, two years after the implementation of the prohibition of diversions outside the Basin, a voluntary or mandatory program for the conservation and efficient use of water. The parties also agree to reduce the demand for water, wherever feasible, to reduce losses and waste of water, or to apply incentive measures for water conservation.

Great Lakes – St. Lawrence River Water Resources Regional Body

The mission of the Regional Body along with its organization and procedures are set forth in Chapter 4 of the Agreement. The Regional Body will be composed of the Governors and the Premiers and their representatives. It has the responsibility to perform a regional review of projects that are submitted to it, to issue a Declaration of Finding as to whether or not a project meets the standard for exceptions, to declare whether the programs of the parties meet the provisions of the Agreement, to facilitate the development of consensus and the resolution of disputes, to report on the implementation of the Agreement, to periodically assess the cumulative impacts of water withdrawals, to periodically review the standards as well as their application, and to propose amendments to the Agreement.

Regional Review

The Regional Review process is set forth in Chapter 5 of the Agreement and provides that when a withdrawal application requires a Regional Review, the party from which the application originates will notify both the Regional Body as well as the public. The process includes a mechanism for public participation as well as the consultation of First Nations. Accordingly, the party making a withdrawal proposal will conduct a technical review of its project and submit it to the Regional Body along with the notice of application. The technical review must be sufficiently detailed to allow the Regional Body to determine whether the project is in compliance with the standard for exceptions. Within 90 days following submission of the notice and the technical review, the Regional Body will meet to study whether the application meets the standard for exceptions. It is intended that the parties will seek to reach consensus on a Declaration of Finding according to a procedure provided to facilitate achievement of such a consensus. The party making the application will thereafter consider the Declaration of Finding before deciding whether or not it approves the water withdrawal according to its own laws and regulations (which may be more restrictive than what is stipulated in the Agreement).

The Agreement provides for a non binding procedure for dispute resolution that applies solely to the settlement of disputes between the parties concerning the interpretation of the Agreement.

Confidentiality and other provisions

Finally, Chapter 7 of the Agreement contains provisions concerning, the confidentiality of information according to obligations or requirements prohibiting disclosure under a party's own laws, transitional measures, the procedure for amending the Agreement and the procedure for withdrawal from and termination of the Agreement. Gradual coming into force of the Agreement is provided for in this chapter in order to allow for parties to complete legal and regulatory changes as required.

The Agreement can be found at: http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable_Water_Resources_Agreement.pdf

http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable_Water_Resources_Agreement.pdf.

Bill 107, entitled An Act to Amend the Environment Quality Act, was passed on December 2, 2005, amending Sections 31.5 and 31.6 of the Environment Quality Act (EQA) in the section pertaining to environmental impact assessment and review. The amendments are aimed specifically at landfill sites. As it reads presently, Section 31.5 of the EQA provides that when environmental impact assessment statement is considered satisfactory by the Minister of Sustainable Development, Environment and Parks, it is submitted together with the application for authorization to the Government that may issue or refuse a certificate of authorization for the realisation of the project with or without amendments and on such conditions as it may determine. The amendment adds an additional provision to Section 31.5 whereby, if the Government issues a certificate of authorization for the realisation of a project to establish or enlarge a landfill site used in whole or in part as a final disposal site for household garbage collected by or for a municipality, the Government or the committee of ministers reviewing the project application may, if it considers it necessary for greater environmental protection, establish standards other than those prescribed by a regulation made under the EQA and include them in the certificate of authorization issued by the Government.

Section 31.6 of the EQA is amended in order to allow the Government or the committee of ministers to exempt a project to establish or enlarge a landfill site from the application of all or part of the environmental impact assessment and review procedure if, in its opinion, the situation requires that the project be realised in a time frame that is shorter than what is required for the application of the procedure. The operation period of a landfill site so authorized however may not exceed one year and such a decision may be renewed only once in respect of the same project.

As a result of these amendments, Bill 107 repeals the Act respecting the establishment and enlargement of certain waste elimination sites (R.S.Q., c E-13.1) and the Act to prohibit the establishment or enlargement of certain waste elimination sites (R.S.Q., c.I-14.1).

The provisions of Bill 107 will come into force on January 19, 2006.

Accordingly, the Regulation respecting environmental impact assessment and review , R.R.Q., c. Q-2, r. 9, has been amended by Order in Council 1252-2005 of December 20, 2005, in order to add to the list of designated projects subject to the environmental impact assessment and review procedure the establishment or enlargement (1) of an engineered landfill referred to in Division 2 of Chapter II of the Regulation respecting the landfilling and incineration of residual materials (O.C. 451-2005, 11 May 2005), used in whole or in part for the final deposit of household garbage collected by or for a municipality , or (2) of a construction or demolition waste landfill referred to in the second paragraph of section 102 of the said regulation. The amendment also provides that the enlargement of a landfill shall include any alteration that results in an increase in the landfill capacity. The amendment will come into force on January 19, 2006.

The Supreme Court of Canada recently dismissed a motion for leave to appeal the May 13, 2005 decision of the Ontario Court of Appeal in Croplife Canada v. City of Toronto [2005] O.J. No. 1896. The Court of Appeal decision upheld the City of Toronto's authority to adopt a by-law restricting pesticide use. A case comment on the Court of Appeal's decision was included with the email transmission of the April 2005 edition of environment @ gowlings.

On November 10, 2005, the Québec Court of Appeal rendered its decision in Paquin v. Compagnie de chemin de fer Canadien Pacifique, J.E. 2005-2235, and reversed a Superior Court decision denying leave to bring a class action under article 976 of the Civil Code of Québec seeking damages and an injunction against Canadian Pacific Railway Company (CP), on behalf of residents of a delimited sector in Outremont, a Montreal neighbourhood, as a result of alleged abnormal neighbourhood annoyances caused by the operation of a marshalling yard. The Superior Court had concluded that a criterion to meet in order to authorize a class action, as set out in article 1003(b) of the Code of Civil Procedure (the facts alleged seem to justify the conclusions sought), was not met.

However, in the Court of Appeal's opinion, the burden on the Plaintiffs at this stage is limited to demonstrating that the claims of the members of the group raises similar questions of law or fact common to members, and that these questions are serious. The Court concluded that the Judge of first instance improperly qualified the nature of the recourse, basing his analysis on the Plaintiffs' prior knowledge of CP's operations. In the Court's view the matter should be seen as an abnormal annoyance case under article 976 of the Civil Code of Québec that should not be considered in light of the residents' knowledge or acceptance of the presence of a marshalling yard nearby their homes, but to the nature and excessiveness of CP's activities, and purported faulty operation of its marshalling yard. The Court also concluded that the other three criteria for a class action, i.e. the claims of the members raise identical, similar or related questions of law or fact, the composition of the group makes the application of article 59 or 67 of the Code of Civil procedure (permitting individuals with a common interest to join actions) difficult or impracticable, and the member to whom the court intends to ascribe the status of representative is in a position to represent the members adequately, were met and thus granted leave to institute the class action.

The impact of the recent Court of Appeal's decision is important considering the fact that, earlier this year, the Superior Court denied a request for leave to bring a class action suit in similar cases. In Dorion v. Compagnie des chemins de fer nationaux du Canada , J.E. 2005-654, the Plaintiffs sought damages and an injunction forcing Canadian National Railways to exercise its activities (marshalling yard) in such manner as to avoid abnormal neighbourhood annoyances while in the case of Voisins du Train de Banlieue de Blainville inc. v. Agence métropolitaine de transport , REJB 2004-64982, the Plaintiffs sought similar recourse on behalf of residents living within 150 meters of tracks used by a commuter train, and of any other person who sustained damages due to the operation of the train.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.