5 Case Law

While we often focus on legislation, some rules are made by precedent setting court rulings.  Court rulings either set new law under the common law system, or help define existing regulations.  Court cases can also help us understand what the courts view as an adequate due diligence defense.

At the Canadian supreme court they often look at constitutional issues with acts.  In recent years the supreme court has been issuing a document called a Case in Brief.  These documents are web pages that try to convert the legalistic decisions into something that is more understandable for the average non-lawyer.

There are many, many decisions by courts across the country, so the following is a selection of cases the author believes is interesting to the environmental student.  It is not a complete collection.

Greenhouse Gas Pollution Pricing Act

The provinces of Alberta, Saskatchewan and Ontario took the constitutionality of the federal Greenhouse Gas Pollution Pricing Act to their respective provincial appeals courts.  While Alberta’s court ruled the act was unconstitutional, Ontario and Saskatchewan appeals courts ruled it was constitutional.  The supreme court of Canada ruled it was constitutional.  The court also ruled it was not a tax but a fee charged for emissions.  (Supreme Court, 2021)

With the act ruled constitutional, carbon pricing has become one of the cornerstones for Canada’s plan to reduce greenhouse gas emissions.

Plastic Bags

In the case Canadian Plastic Bag Association v. Victoria (City), 2019 BCCA 254 the plastic bag association challenged a Victoria bylaw outlawing the use of plastic bags (CANLII, 2019).  The plastic bag association won the court case and the bylaw was rescinded.  Municipalities derive their authorities from the provincial government.  In, British Columbia (B.C.) the provincial government must approve civic bylaws pertaining to the environment.  Victoria did not have this permission and so the court ruled the bylaw was invalid. The lesson learned was that each municipality has to check with the province on environmental issues.  The BC Appeal Court agreed, the Supreme Court refused leave to appeal.

Victoria has since received provincial approval to regulate plastic bags and the ban is back.

Environmental Assessments

In the very famous case Friends of the Oldman River Society v. Canada (Minister of Transport the Oldman Dam was approved based on an approval of navigable waters and not on the other areas where the federal government was responsible (The Supreme Court of Canada, 1992).  The federal court trial judge agreed with the province, but the federal appeal court, reversed the judgement.  The case went to the supreme court, and the reversal was upheld.  This meant that a more comprehensive environmental assessment was required by the federal government.

This case is often discussed in terms of kick starting the federal environmental assessment process.

Section Conclusion

There are many cases that have resolved some difficult legal questions.  These are just a very brief summary of  a very few cases.  The examples show how the courts can help us understand the exact meanings of laws.  The cases are a reminder that sometimes the law is subject to some ambiguities.  But overall, the courts remain an expensive method of understanding the law.

Learning Questions

Find an environmental case that interests you and write a short summary.  Canlii has a searchable database of cases.


Canadian Plastic Bag Association v. Victoria (City), 2019 BCCA 254

Supreme Court of Canada. (1992). Friends of the Oldman River Society v. Canada (Minister of Transport). Retrieved from https://www.canlii.org/en/bc/bcca/doc/2019/2019bcca254/2019bcca254.html

Supreme Court of Canada. (2021). Case in Brief: References re Greenhouse Gas Pollution Pricing Act. Retrieved from https://openeducationalberta.ca/mruenvregs/wp-admin/post.php?post=97&action=edit




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