Summary of January Session: Environmental Case Law Update


Dionysios Rossi (Borden Ladner Gervais LLP) and Owen James (Dentons Canada LLP) – Download Presentation

Gordon Buck and Scott Harcus (Alexander Holburn Beaudin and Lang LLP) – Download Presentation

An update of recent environmental class action proceedings.  Summary of some include:

Smith v. Inco

o    Canada’s first class action proceeding from a common law practice

o    Nickel particulate emissions in Ontario over 66 years

o    damages from trial ($36M) overturned by Ontario Court of Appeal

o    claimants failed to establish Inco’s liability under Rylands v. Fletcher: industrial part of City; Inco authorized to carry out activities

Western Forest Products Inc. v. New Westminster (City)

o    Vendor claimed city not made reasonable efforts to complete remediation and was in breach of contract

o    remediation “in a timely fashion” does not mean “as quickly as possible”

o    Supreme court ruled no breach of contract, contract did not specify that remediation had to occur within specific time period

J.I Properties Inc. v PPG Architectural Coatings Canada Inc.

o    Private gulf island in B.C. purchased for $26M in 1994 by billionaire Craig McCaw

  • $5.23M in remediation costs spent by McCaw after purchase (2004-2006)

o    Island was former site of PPG munitions factory (1913-1988), conducted voluntary remediation of various contaminants in 1988 (no contaminated sites regime in 1980s)

o    PPG received “letter of comfort” from MOE confirming remediation was acceptable

o    JI Properties aware of remaining contamination at time of purchase

o    action commenced in 2009 – PPG argues it is outside 2yr limitation period, Court dismisses and holds that time begins when remediation completed, not when it begins

o    Court dismisses PPG argument that “letter of comfort” = COC

o    Court awards JI Properties $4.75M in remediation costs

Regulatory Update

Bill C38 and C45

  • Major changes to Fisheries Act, Canadian Environmental Assessment Act, Navigable Waters Protection Act
  • Prohibitions on HADD in s. 35 replaced with single prohibition against causing “serious harm” to fish that are a part of commercial, recreational or Aboriginal fishery
  • DFO policy hierarchy of goals where activities may cause harm to fish: avoid, mitigate, offset
  • Only offsetting requires authorization under act

Contaminated Sites

  • Proposed changes to Protocols, Procedures and Administrative Guidance Documents
  • MOE seeking input on the Site Profile Process and the Soil Relocation
  • Potential areas of update – activities that trigger the site profile requirements, site profile forms, the local government process, “hardwiring” in the requirements for site decommissioning
  • Other potential changes include site profile “freeze and release” provision changes, site investigation “hardwiring” and impacts to occupancy of newly constructed buildings
  • Soil relocation – current system has been identified as unnecessarily complicated and time consuming,  and is overly conservative in most instances – possible changes are in discussion to streamline the process and reduce the time and risk factors to increase their use, which will help with the MOE goal of reducing the amount of soil that is disposed of in landfills

Water Sustainability Act

  • Existing Water Act implemented in 1909 – Water Sustainability Act received Royal Assent in 2014 but is not yet in force
  • Authorizes establishment of water objectives to be considered in decision making under the WSA and other enactments
  • Mandates consideration of environmental flow needs of streams in licensing decisions
  • Provides new powers to modify existing precedence of water use where streams at risk of falling below flow thresholds
  • Expansion of the water licensing regime to include ground water use – which is currently unregulated
  • Allows for use of repeat short term authorizations to water use

Changes to Ambient Air Quality Requirements

  • BC adopted interim objectives for NO2 and SO2
  • Previous standards established in 1970s
  • CAAQS not expected to be finalized until late 2015

Updated Packaging Recycling Regulations

  • Industry expected to be responsible for recycling products they produce
  • Producers to have approved product stewardship plan and recycling programs in place by May 2014
  • program in effect, unclear to what extent government will investigate/enforce