2019 Legal Update Summary

On Thursday, January 17th the EMA of BC hosted an informative session on legal updates.  Presentations were given by Fasken and Borden Ladner Gervais.

Environmental Legislative Update by Fasken – Bill C-69, BC Environmental Assessment Act and Bill C-68

Rob Lonergan, Partner

Ron Ezekial, Partner

Bill C-69  The presentation outlined the reasons leading to change, including issues associated with CEAA 2012.  Bill C-69 will include more upfront front-end consultation with stakeholders including Indigenous groups and provide more information on the issues associated with the project.  Various changes to key definitions may prove to be challenging, including the definition of “unacceptable environmental effects”, “interaction” between effects, and “incidental effects”.

Provincial Response to EA Reform – Bill 51  The presentation reviewed the NDP’s 2017 election platform, which has resulted Bill 51.  This is not yet in force and will come into force by regulation in late 2019.  The presentation outlined the similarities between the old Act and the new EAA and noted some key changes.  Some of the key changes include the role for Indigenous Nations and process changes to obtain an EAC.

Bill C-68  This is an Act to amend the Fisheries Act and has been through the 2nd reading in the Senate on December 3rd.  Key changes include broadening the definition of fish habitat, fishery, and prohibiting the death of fish.

Case Law Update by Borden Ladner Gervais

Luke Dineley, Partner

Tim Pritchard, Associate

West Van Holdings Ltd.v. Economical Mutual Insurance Company  The presentation outlined the decision as it relates to the duty to defend in commercial general insurance coverage for spill-related damages.  Due to ambiguity in the policy language, the court ruled against the insurer.

Imperial Metals Corporation v. Knight Piesold Ltd.  The presentation looked at whether the government can be sued for failure to adequately regulate a project, and whether the regulator owed the mine owner a duty of care.  The court identified some key points, including the regulator’s involvement in the design by providing specific advice and the inspector should have discovered the flaws and recommended remedial action.

Foster v. Tundra Turbos Inc.  The presentation looked at whether liability can be imposed on former directors of a dissolved corporation.  This case effectively overruled previous (Gehrring v. Chevron) case law.

Thanks to Melissa Magnuson for preparing this summary!