Ontario Superior Court refuses to dismiss lawsuit against environmental enforcement officers

They were accused of abusing their authority

Ontario Superior Court refuses to dismiss lawsuit against environmental enforcement officers

The Ontario Superior Court of Justice has refused to dismiss a lawsuit against former environmental enforcement officers accused of abusing their authority.

In 1049558 Ont. Inc. v. Attorney General 2023 ONSC 6612, the plaintiffs are entities involved in waste management. They sued the defendants who were employees of the Crown employed by Environment Canada in its Environmental Enforcement Division.

The case dates back to 2007 and 2008, when Environment Canada and Climate Change Canada conducted an inspection and investigation leading to charges against the plaintiffs. After the matters were resolved, the plaintiffs filed a lawsuit alleging that the defendants abused their positions as Environmental Enforcement Officers to target the plaintiffs unfairly, causing damage to their business and reputations.

The defendants asked the court to dismiss the action because the plaintiffs breached court orders regarding privileged documents. In the alternative, the defendants sought an order to remove the plaintiffs' counsel from the record and increase the security for costs paid by the plaintiffs.

Ultimately, the Ontario Superior Court of Justice denied the defendants' motion to dismiss, finding reasonable excuses for the plaintiffs' alleged breach of the Crown privilege order and that the prejudice that the defendants would suffer in defence of the action was not likely. The court also denied increased security for costs, finding that it would be unjust to the plaintiffs.

The court noted from the relevant procedural history that in 2016, the court prohibited the plaintiffs from using certain privileged documents and required them to return all the privileged documents to the Crown and destroy them. In 2021, the defendants discovered that the Hamilton Small Claims Court had six privileged documents in its files.

The court explained that under Rule 60.12, the court may dismiss a proceeding if a party fails to comply with an interlocutory order. The moving party carries the burden of proving that the other party's breach of the interlocutory order was "intentional, contumelious or without reasonable excuse or otherwise constitute an abuse of the court's process."

The court found there were reasonable excuses as to why those privileged documents remained in the Hamilton Small Claims court file. The defendants argued that the plaintiffs were obligated to remove the six confidential documents from the Small Claims Court file after the court issued the Crown Privilege Order. The plaintiffs said they filed the documents in the Hamilton Small Claims Court in 2014 before the court issued the Crown privilege order in 2016 and that the defendants had full knowledge of what the plaintiffs filed in the Small Claims Court file.

The plaintiffs further explained that they complied and destroyed copies of the privileged documents in 2018 after the court issued the Crown privilege order. Their understanding was to deal with documents in their possession, and no court order compelled them to purge the privileged records from the Hamilton Small Claims Cout file.

Furthermore, the plaintiffs contended that there was no actual prejudice to the defendants in defending the actions. The court agreed with the plaintiffs, finding that the plaintiffs may rebut the presumption of significant prejudice to the defendants. The court was satisfied that those documents that remained in the Small Claims Court file were not likely to create prejudice for the defendants.

The court was ultimately satisfied that there were reasonable excuses for the alleged breach of the Crown privilege order. Accordingly, the court refused to dismiss the plaintiffs' action against the defendants.

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