environment, harm, Canada, interlocutory injunctions, litigation, precaution
In many cases of imminent environmental harm, a trial may take years. To prevent harm in the meantime, pre-trial injunctions are essential. The author highlights the important role of interlocutory injunctions in Canadian environmental litigation, uncovers the judicial assumptions and attitudes toward the environment which these decisions reveal, and proposes a precautionary approach to interpreting the interlocutory injunction test in environmental cases. She argues that prevailing judicial attitudes and presumptions in relation to environmental claims often negatively influence how the discretionary elements in procedural rules governing pre-trial injunctions are applied. Although there has been much analysis of principles such as the precautionary principle in substantive environmental law, the author argues that ifsubstantive law is to achieve its intended goals, principles such as precaution must also be applied when interpreting procedural rules. In environmental litigation, ecological realities and environmental law principles should guide discretion, particularly in decisions which appear. to be "merely procedural" yet have significant substantive effect.
Heather McLeod-Kilmurray, "Proceeding with (Pre)Caution: Environmental Principles as Interpretive Tools in Applications for Pre-trial Injunctions" (2009) 32:2 Dal LJ 295.