Title: National Orphaned/Abandoned Mines Initiative (NAOMI)
Franšais
What's New
arrow New image NOAMI News (PDF)
arrow New image NOAMI Activities (PDF)
Menu
arrow Table of Contents
arrow Introduction
arrow

Advisory Committee:
Mandate
Membership

arrow Task Groups:
Information Gathering
Community Involvement
Legislative and Institutional   Barriers to Collaboration
Funding Approaches
arrow Workshops:
Winnipeg Workshop
Legal and Institutional   Barriers to Collaboration   Relating to Orphaned/   Abandoned Mines Workshop
arrow Sign In - Meeting Minutes
arrow Newsletters
arrow

Reports

arrow Community Involvement Brochure (PDF)
arrow Related Links
arrow Contact Us
arrow Feedback Form
arrow Site Map
arrow Help
arrow Disclaimer
Spacer

Table of Contents > Reports > Legal and Institutional Barriers to Collaboration Relating to Orphaned/Abandoned Mines (OAMs) Abstract and Summary > Table of Contents > Introduction > Background and Workshop Review > Presentations > Panel Presentations and Breakout Groups > Closing Remarks > List of Participants > Final Workshop Agenda > Glossary of Legal Terms

APPENDIX C: GLOSSARY OF LEGAL TERMS

GLOSSARY OF TERMS FOR THE
WORKSHOP ON LEGAL AND INSTITUTIONAL BARRIERS TO COLLABORATION RELATING TO ORPHANED AND ABANDONED MINES IN CANADA

Prepared By

Joseph F. Castrilli

Accused - the person charged with committing an environmental offence who is prosecuted in the criminal (or in Ontario the provincial offences) courts.

Administrative Liability - the law authorized by an environmental statute/legislation to be administered or imposed by a federal or provincial ministry or department of government for violation of the statute (or regulation, approval, etc., issued under that statute). Administrative liability may take the form of an order (requiring the person named in the order to undertake certain work at that person's expense) or penalty (payment of money). These orders and penalties often may be appealed to administrative tribunals (e.g., British Columbia Environmental Appeal Board; Ontario Environmental Review Tribunal) and may be confirmed, varied, or rejected by these bodies, subject to any further appeals to the courts on legal questions or to Cabinet on questions of fact. The resulting confirmed order or penalty constitutes a liability for the person(s) named in the document issuing the order or penalty.

Cause of Action - the combination of facts that gives the right to a legal remedy in a civil lawsuit (not a criminal proceeding). Examples of common law causes of action include: negligence, private nuisance, public nuisance, riparian rights, trespass, strict liability (or the rule in Rylands v. Fletcher).

Civil Law - in Canada relates to the law of Quebec and in particular the Quebec Civil Code, a body of law derived initially from Roman Law and the Napoleonic Code. Civil law concepts such as "abuse of rights" are analogous to those found in the common law regarding potential causes of action between private parties for tort damage.

Civil Liability - an adverse finding from a court in a civil lawsuit may result in an order from the court for the defendant (the person sued) to pay the plaintiff (the person suing) damages (i.e., money), or to do, or refrain from doing, certain things to pay for, mitigate, or prevent environmental harm. Civil liability can arise under the civil law or the common law.

Common Law - As distinguished from Roman Law (or Civil Law), the common law comprises the body of principles and causes of action developed from the decisions of courts going back to the ancient unwritten law of England. For our purposes, judge-made law, or law made by the courts, not by provincial legislatures or the Parliament of Canada.

Criminal Offence - primarily offences established under the Criminal Code of Canada ("true crimes") but also some pieces of environmental legislation that require the prosecutor in a criminal proceeding before a court to prove beyond a reasonable doubt (e.g., 99% certainty) that the accused (1) committed the act that is the subject matter of the offence, and (2) had the requisite mental intent to commit the act (i.e. intended to do the act, was reckless, or wilfully blind to the consequences of performing the act.)

Criminal or Quasi-Criminal (Regulatory) Liability - an adverse finding (conviction) from a criminal or provincial offences court that may result in an order from the court for the accused to be punished by fine or imprisonment for commission of an environmental offence.

Top

Damage - a matter that must be proved in most tort causes of action (except for riparian rights and trespass). In order to initiate a lawsuit for environmental harm, the plaintiff (person alleging harm) must have suffered some type of damage such as personal injury or damage to property. Damage (e.g. adverse effect) also is an element to be proved in many environmental offences established by provincial legislatures or the Parliament of Canada under environmental legislation.

Defendant - person in a civil lawsuit that is sued by the plaintiff and alleged by the plaintiff to be the cause/source of harm to the plaintiff.

Due Diligence - ongoing procedures in the operation of a business to ensure that environmental damage is not occurring. Where due diligence is shown it acts as a defence to strict liability environmental offences.

Environmental Offences - offences based on the occurrence of environmental harm that are established by provincial legislatures or the Parliament of Canada in legislation and that are regarded as criminal, quasi-criminal, or regulatory wrongs punishable by fine or imprisonment in the courts.

Gross Negligence - conduct amounting to an intentional failure to perform a duty in reckless disregard of the consequences to life, health, or property of another; or such a marked departure from the standards by which responsible and competent people in such a situation govern themselves in relation to the rights of others as to justify the presumption of willfulness.

Legal - conforming to, required, permitted, or not forbidden by, law. In this context, mainly refers to requirements or obligations normally decided by the courts (but also can apply to what is set down by provincial legislatures or the Parliament of Canada in legislation or by ministries or departments of government in regulations or approvals issued under the authority of legislation.)

Legislation (Statute) - law created by a provincial legislature (e.g., British Columbia Waste Management Act) or the Parliament of Canada (e.g., Fisheries Act).

Liability - obligation to pay compensation (or a fine), or undertake certain tasks to redress environmental damage, that may be imposed by a court or ministry or department of government on a person found in violation of administrative, civil, or criminal (quasi-criminal/regulatory) requirements arising from civil law or common law principles, legislation, regulations, orders, approvals, etc.

Negligence - a cause of action in tort. Negligence is conduct that breaches or falls below a standard of reasonable care owed to a person harmed by the conduct. (A fuller description of the law of negligence is contained in the Final Report, pages 17-18.)

Plaintiff - person in a civil lawsuit who is suing and alleging harm caused by the defendant.

Private Nuisance - a cause of action in tort. Private Nuisance is the unreasonable interference with the use or enjoyment of land. (A fuller description of the law of private nuisance is contained in the Final Report, pages 17-18.)

Public Nuisance - a cause of action in tort. Public Nuisance is interference with, damage to, or obstruction of, a public right such as polluting a waterway. (A fuller description of the law of public nuisance is contained in the Final Report, pages 17-18.)

Top

Quasi-Criminal (Regulatory) Offence - an offence established under environmental legislation (or a regulation) that only requires the prosecutor in a proceeding before (e.g., in Ontario a provincial offences court judge) to prove beyond a reasonable doubt that the accused committed the act with which he/she/it is charged. No mental intent need be proved. See also environmental offence.

Regulation (or regulatory) - a rule promulgated by a ministry or department of government under the authority of a statute having the force of law that establishes requirements or restrictions on or with respect to the conduct of the regulated community, the violation of which may be prosecuted as an environmental offence.

Riparian Rights - a cause of action in tort. Riparian Rights refers to the rights of a land owner or occupier bordering a lake, river, or stream. (A fuller description of the law of riparian rights is contained in the Final Report, pages 17-18.)

Rule in Rylands v. Fletcher - a cause of action in tort. Often treated as synonymous with strict liability the rule in Rylands v. Fletcher is satisfied where (1) the defendant has brought onto its land (2) something that is not naturally there (3) that is likely to cause damage if it escapes (4) that does escape (5) and causes damage. In that circumstance, negligence does not need to be proven by the plaintiff. (A fuller description of the rule in Rylands v. Fletcher is contained in the Final Report, pages 17-18.)

Statute - see Legislation.

Strict Liability - In the context of a civil lawsuit, often treated as synonymous with, or at least very similar to, the rule in Rylands v. Fletcher and, therefore, a cause of action in tort. (A fuller description of the law of strict liability is contained in the Final Report, pages 17-18.) In the context of environmental offences that are prosecuted before a provincial offences court, strict liability requires only proof beyond a reasonable doubt (e.g. 99% certainty) that the accused has committed an offence (i.e. the act with which charged). No mental intent need be shown by the prosecutor to obtain a conviction as is normally required in respect of criminal offences. Under a strict liability offence, once the prosecutor proves the act has been committed beyond a reasonable doubt, the burden shifts to the accused to demonstrate on a balance of probabilities (e.g., 50.1% certainty) that it was duly diligent (i.e., that the accused took all reasonable steps in the circumstances to avoid commission of the offence.)

Tort - (derived from Latin) a private or civil wrong or injury that gives rise to a common law cause of action. An example of a tort is trespass.

Trespass to Land - a cause of action in tort. Intentional, direct invasion of real property for which actual damage does not need to be shown. (A fuller description of the law of trespass to land is contained in the Final Report, pages 17-18.)

Wilful Misconduct - failure to exercise ordinary care to prevent injury to life, health, or property of another that is known to be or reasonably expected to be within the range of a dangerous act being done.

 
Top
Franšais

Last updated: 2003-09-26

© National Orphaned/Abandoned Mines Initiative (NOAMI) 2004