The Globe and Mail
April 14, 1989
The Ontario Court of Appeal cleared the way yesterday for a constitutional challenge of a federal law that limits the liability of Canada’s nuclear power utilities in the event of a major accident.
In a unanimous decision, three judges of the court overturned a judge’s summary dismissal of the proposed action on grounds it was premature and as such had no hope of success.
Speaking for the court, Mr. Justice James Carthy said he had concluded that there was “some chance” that the would-be plaintiffs – Energy Probe, 11 individuals and the City of Toronto – could prove their allegations.
At a three-day hearing last November, the appellants argued that provisions in the Nuclear Liability Act violate the equality-rights section of the Charter of Rights and Freedoms.
Lawyer Clayton Ruby had concentrated his attack on provisions limiting over-all liability from a single accident to $75-million, requiring claims against a utility to be launched within 10 years of the cause of action, and insulating component suppliers and designers from suit.
He buoyed his case with fresh evidence not available at the earlier hearing before Mr. Justice Robert Montgomery of the Ontario Supreme Court. It included an affidavit from Energy Probe researcher Norman Rubin asserting that the challenged law amounts to a subsidy that will encourage Ontario Hydro to build more nuclear plants as the cheapest option for added capacity.
The affidavit also cited new legislation in the United States raising the compensation available there in the event of a nuclear disaster to $7-billion.
The appellants argued that the federal law discriminates unconstitutionally between nuclear victims and plaintiffs in other lawsuits by imposing the recovery ceiling and short limitation period; between victims of the same accident who seek compensation before the $75-million ceiling or 10-year limit is reached and those who do so later; and between victims of catastrophes and relatively minor nuclear accidents.
Observing that the Charter’s Section 15 on equality rights was recently re-interpreted by the Supreme Court of Canada in a decision that struck down British Columbia’s bar against non-citizens becoming lawyers, Judge Carthy said: “I cannot conclude with confidence that the appellants may not succeed with these arguments.”
And in rejecting a conclusion of Judge Montgomery that the proposed action was premature, in that there had been no serious accident, Judge Carthy said the appellants argued there was “a present harm – more nuclear plants and more risk.”
The judge said the court “should be vigilant to assure that curious bystanders and busybodies do not take up its precious time with hypothetical questions,” but found that was not the case here.
“When I see serious individuals such as the appellants in this case presenting concerns that are of fundamental significance to all citizens, I have no hesitation in concluding that this is not an abuse…”