2020
JANUARY 16
In the Sale of Property Responsibility for Removal and Redediation of Underground Storage Tanks Needs to be Clear
On January 9, 2020, the B.C. Supreme Court in Walton v. Warren 2020 BCSC 19 found in favour of the Purchaser when an undiscovered underground storage tank required removal and site remediation following closing...
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2019
DECEMBER 16
Federal Court Dismisses Demand for Investigation of CEPA Violations Relating to Diesel Vehicles Equipped with Defeat Devices
In Gray and Malas v. Attorney General of Canada 2019 FC 1553 the Federal Court dismissed an application for judicial review of two decisions by the Minister of Environment and Climate Change...
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NOVEMBER 18
Lack of Regulatory Approvals Not Determinative of Criminal Negligence
In R. v. Javanmardi, 2019 SCC 54 the Supreme Court of Canada has clarified that the absence of an authorization, licence or permit is not determinative of a marked and substantial departure from the standard of a reasonable person on a charge of criminal negligence causing death...
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OCTOBER 16
Is an Election an Effective Substitute for The Public Consultation Process Under the Environmental Bill of Rights?
The short answer is no according to the majority reasons of the Ontario Divisional Court given on October 11, 2019 in Greenpeace Canada v. Minister of the Environment (Ontario), 2019 ONSC 5629...
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SEPTEMBER 04
What Should you Know About the Coming Into Force of the Impact Assessment Act?
As of the end of August 2019, Canada has a new environmental assessment regime — the Impact Assessment Act...
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JULY 15
City of Victoria's Plastic Bag Prohibition Held Invalid by B.C. Court of Appeal
On July 11, 2019 the B.C. Court of Appeal in Canadian Plastic Bag Association v. Victoria (City), 2019 BCCA 254 invalidated a City of Victoria by-law that would have prohibited businesses from providing or selling plastic bags to customers and further would have imposed fees to be charged for paper or other re-useable bags.
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JULY 03
Ontario Challenge to Federal Carbon Pricing Scheme Rejected by Court of Appeal - Where do we go from Here?
On June 28, 2019 the Ontario Court of Appeal rejected the Province of Ontario's constitutional challenge of the Canadian Government's carbon pricing legislation, determining that the law fell within the federal government's constitutional authority to make laws for the peace, order and good government of Canada and did not amount to a tax.
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JUNE 24
Bills C-48 and C-69 Clear Their Final Legislative Hurdle
On June 20th, 2019 the Canadian Senate, Parliament's chamber of second thought, approved two government bills for which it had proposed significant amendments...
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APRIL 26
Ontario Moves to Update Provincial Environmental Assessment
On April 25th, 2019 the Environmental Registry https://ero.ontario.ca/notice/013-5102#proposal-details contained proposals for amending the Province's Environmental Assessment Act enacted 44 years ago in 1975.
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MARCH 07
Charter Protection from Mandatory Minimum Fines May Offer Relief Where the POA Won't
A decision delivered on March 4, 2019 by the Québec Court of Appeal in 9147-0732 Québec Inc. v. Director of Criminal and Penal Prosecutions (2019) QCCA373 (CANLII) suggests that proportionality may have more sway under the Charter of Rights than under the Ontario Provincial Offences Act (POA) in providing relief from mandatory minimum fines...
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FEBRUARY 01
The Supreme Court Weighs in on Receiver's Obligations for Orphan Wells
The decision of the Supreme Court of Canada on January 31, 2019 in Orphan Well Association v Grant Thornton Ltd. 2019 SCC 5 could make it much tougher for the oil and gas industry to raise money from major banks...
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2018
DECEMBER 11
The Ontario Court of Appeal Limits Relief from Mandatory Minimum Fines in Public Welfare Offences — Where do we go From Here?
The Ontario Provincial Offences Act R.S.O. 1990, CHAPTER P.33 (P.O.A.) provides relief from mandatory minimum sentences.
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NOVEMBER 12
Small Modular Reactors Roadmap Published Online by Natural Resources Canada
On November 7, 2018 Natural Resources Canada published an on-line roadmap for discussion on small modular reactors ("SMRs") at https://smrroadmap.ca/.
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NOVEMBER 02
What the October 2018 Decision on the Site C Dam Means for the "Taking-up" Clause in First Nations Treaties
The West Moberly First Nations were unsuccessful on October 24, 2018 (see 2018, BCSC 1835) in obtaining an injunction against B.C. Hydro and Power Authority from further construction and related activities on the Site C Project...
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OCTOBER 25
What Can be Done when a Regulatory Approval is Granted and than Withdrawn Following a Change in Government?
In Eagleridge International Ltd. v. Newfoundland and Labrador (Environment and Conservation) 2018 NLSC 180, following a change of government, the new Minister of Environment and Conservation withdrew approval for the construction of a gravel road intended to facilitate mineral exploration on lands for which mining licences were held and ordered that the project be subject to a full environmental assessment (EA).
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OCTOBER 12
What Does the Hague Court Of Appeal's Decision in Urgenda Mean for Carbon Emission Regulation in Canada?
The Action On October 9, 2018 the Court of Appeal in the Hague, Netherlands upheld the District Court's order that the State of the Netherlands reduce CO2 emissions by 25% relative to 1990 levels by the end of 2020...
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OCTOBER 10
What Level of Information Does a Proponent Need to Start an Environmental Assessment?
The simple answer is: sufficient information for the regulatory authority to be satisfied they can proceed to evaluate their decision to grant authorization...
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SEPTEMBER 14
Preface, 12th Edition of Key Developments in Environmental Law
SEPTEMBER 07
Divisional Court Upholds Tribunal Decision that the Ministry May Order Current And Former Owners, and Tenants to Delineate Contamination that has Migrated Off-Site
On September 4, 2018, Ontario's Divisional Court released its decision in Hamilton Beach Brands Canada, Inc. v. Ministry of the Environment and Climate Change, 2018 ONSC 5010, dismissing an appeal of a September 1, 2017 decision of Ontario's Environmental Review Tribunal (Hamilton Beach Brands Canada Inc. v. Ontario (Environment and Climate Change), 2017 CanLII 57415 (ON ERT)) in which the Tribunal upheld the Ministry's jurisdiction to order current and former owners and tenants of a contaminated property to delineate contamination that has migrated to off-site properties...
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AUGUST 15
Corporate Veil Lifted In Regulatory Prosecution - Substantial Fine Recoverable From Individual Not Charged
In R. v. 1137749 Ontario Ltd. (operating as Pro-Teck Electric) 2018 ONCJ 502, an appellate court lifted the corporate veil and imposed total fines of $430,000 on the sole shareholder, officer and director of the company, one Antonio Merante, for safety violations under the Electricity Act S.O. 1998, c.18...
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AUGUST 02
Environmental Consultant's Disclaimer of Liability to Vendor Effective Against Third Party Purchaser
On July 23, 2018 the Court of Appeal for Newfoundland and Labrador in the case of Community Mental Health Initiative Inc. v. Summit Lounge Ltd. 2018 NLCA 42 upheld summary judgment dismissing a purchaser's claim against two engineering companies (consultants) alleging negligence in the conduct of a Phase 1 Environmental Site Assessment performed for the vendor.
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JULY 23
Provincial Mining Exploration and Reclamation Permits Withstand Federal Rejection of Project Under CEAA 2012
On June 22, 2018 the B.C. Supreme Court in Canada (Canadian Environmental Assessment Agency) v. Taseko Mines Limited 2018 BCSC 1034 took a narrow view of the scope of federal environmental assessment, leaving it open to the Province of B.C. to authorize preliminary work in relation to a gold-copper mine project which had failed to obtain federal environmental assessment approval...
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MAY 15
NAFTA Decision Challenging Canadian EA of Nova Scotia Quarry Project Upheld by Federal Court
MAY 08
Dominant Purpose Test In Solicitor Client Privilege Harder To Meet Now
Now that the Supreme Court of Canada has denied leave to appeal in Suncor Energy Inc. v. Alberta (2017) 415 D.L.R. (4th) 499 (Alta C.A.) it will be harder to establish solicitor-client privilege in relation to documentation which was used in litigation...
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APRIL 02
Court Rejects Environmental Consultant's Third Party Claim Against Prior Owners/Occupants
On March 22, 2018 the Ontario Superior Court of Justice in MVL Leasing Ltd. v CCI Group Inc. 2018 ONSC 1800 granted Rule 21 motions striking third party claims brought by an environmental consultant who was being sued by a purchaser of property for professional negligence and breach of contract...
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MARCH 29
Ecojustice Denied Leave to Intervene as "Friend Of Court"
In a very short but useful decision from Chief Justice Strathy of the Ontario Court of Appeal in Huang v. Fraser Hillary's Limited, 2018 ONCA 277 (CanLII), the Court denied the environmental group Ecojustice leave to intervene in an appeal as a "friend of the court"...
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FEBRUARY 09
New Federal Impact Assessment Act
The Canadian Government announced yesterday that they are proposing new rules for conducting environmental assessments to Parliament...
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JANUARY 26
Introducing An Environmental Expert's Opinion on Judicial Review
On January 18, 2018 the Nova Scotia Supreme Court in Sorflaten v. Nova Scotia (Environment) (2018) NSSC 7 refused to admit the expert opinion of Dr. Douglas J. Hallett, a toxicologist, relating to certain environmental aspects of a Ministerial approved pilot project for burning recycled tires as fuel at a cement plant owned by Lafarge Canada...
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JANUARY 04
In A Spill Both The Carrier And The Receiver Are Potentially Targets For Prosecution
Two plea bargains concluded in 2017 by the Ontario Ministry of Environment and Climate Change, one on February 27 for Trimac Transportation Services Inc., and the second on November 22 for Lafarge Canada Inc.
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2017
DECEMBER 14
Sunrise Propane Appeals Against Conviction and Fines Dismissed
Another chapter in the saga of Sunrise Propane came to a close at the end of November when the Ontario Superior Court dismissed all appeals under environmental and occupational health and safety laws from the convictions and fines totalling more than 5million dollars.
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DECEMBER 05
ERT Forces Settled Appellant And Director To Seek Submissions Of Public At Pre-Hearing Conference
In SEJJ Environmental Solutions Inc. v. Ontario (Environment and Climate Change)[1], a decision of the Ontario Environmental Review Tribunal released on November 24, 2017, the Tribunal forced an appellant and the Ministry Director who settled the appellant's appeal before any Pre-hearing Conference had been held, and before any other "parties, participants or presenters" had been identified by the Tribunal, to essentially seek the input of these third parties before it would consider approving the settlement...
[1] SEJJ Environmental Solutions Inc. v. Ontario (Environment and Climate Change), 2017 CanLII 80040 (ON ERT).
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NOVEMBER 03
Ontario Court Of Appeal Sets Aside Security For Costs Order In Yaiguaje v. Chevron Case
In a decision released on October 31, 2017, a three judge panel of the Ontario Court of Appeal overturned a September 21, 2017 decision by the Court of Appeal motions judge that required the Ecuadorian plaintiffs in this case to post $942,951 as security for costs as a condition of proceeding with their appeals to the Court of Appeal...
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OCTOBER 27
Ontario Today Releases Its Long-Term Energy Plan (LTEP): The Focus On Nuclear
With all the fanfare about renewable energy, the report released by the Ontario Government on October 26, 2017, is illuminating...
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OCTOBER 11
Managing Prosecution Risk When Regulators Issue Permits Or Orders
A recent decision from the Yukon Territorial Court is a reminder of how important communication between the regulator and the regulated can be...
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SEPTEMBER 08
Environmental Review Tribunal Gives Ministry Broad Preventative Powers Over Migrating Contamination
On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Environmental Protection Act (EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties.
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JULY 27
Supreme Court Of Canada Affirms That Rigorous Regulatory Processes Can Fulfill Crown's Duty To Consult With First Nations
On July 26, 2017 the Supreme Court of Canada clarified in two decisions, both involving National Energy Board (NEB) approvals, that the Crown may discharge its duty to consult with First Nations through steps taken by a regulatory agency, providing that agency's statutory duties and powers enable it to do what the duty to consult requires...
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JULY 17
Federal Discussion Paper On Environmental And Regulatory Reviews
Consistent with my comments offered in May of this year when the Expert Panel Report on the review of environmental assessments (EA) was released, the Federal Government's June Discussion Paper on Environmental and Regulatory Reviews has carved out a larger role for the Canadian Nuclear Safety Commission (CNSC) and the National Energy Board (NEB)...
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JUNE 07
Canada ratifies convention on supplementary compensation
On Wednesday June 6, 2017 the Permanent Representative of Canada to the International Atomic Energy Agency (IAEA), Ambassador Mark Bailey, delivered the instrument of ratification to IAEA Director General Yukiya Amano at a ceremony at IAEA Headquarters in Vienna, Austria...
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APRIL 12
Expert Panel Releases Its Review Of Canada's Environmental Assessment Process
On April 5, 2017 the Federal Minister of Environment and Climate Change received her report from an expert panel of four, comprised of three lawyers with significant environmental and aboriginal law experience as well as a retired senior executive of a resource company...
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APRIL 05
Fitness For Duty In The Nuclear Industry : Ontario Court Denies Injunction Restraining Random Drug And Alcohol Testing
On April 3, 2017 (ONSC 2078) Ontario Superior Court Judge Frank Marrocco denied the Amalgamated Transit Union Local 113 an interlocutory injunction restraining implementation of random drug and alcohol testing of members of the Local until the completion of an arbitration hearing into the validity of the Toronto Transit Commission (TTC) drug and alcohol testing Policy...
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MARCH 10
Statutory Right To Compensation For Remediation Applies To Spills Occurring Before The Right Was In Force
On March 6, 2017 Superior Court Judge P.E. Roger ruled in Huang v. Fraser Hillary's Ltd., 2017 ONSC 1500 that section 99 of Ontario's Environmental Protection Act R.S.O. 1990, c.E19 allowed the plaintiffs to recover compensation against a neighbouring dry cleaning business for remedial expenses for the tetrachloroethylene ( PCE,PERC) and trichlorethylene (TCE) contamination of soils and groundwater on the plaintiff's property...
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FEBRUARY 08
Court Terminates Pollution Enforcement Action As Against Canadian Subsidiary Of Chevron
On January 20, 2017, the Ontario Superior Court of Justice released a summary judgment decision in the case of Yaiguaje v Chevron Corporation, terminating a civil claim by Ecuadorian plaintiffs against Chevron Canada Limited ("CCL")...
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FEBRUARY 08
Cap And Trade Auction Date Announced
Auction Date: The March 2017 Ontario Auction #1 is scheduled to take place on March 22, 2017 from 1:00 PM Eastern Time (ET) until 4:00 PM ET...
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JANUARY 27
Supreme Court Of Canada Releases Judgment On Defence Of Officially Induced Error
In an oral judgment released today in R. v. Bedard, the Supreme Court of Canada has confirmed the elements of the defense of officially induced error, as set out in its 2006 decision in Lévis (City) v. Tétreault...
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JANUARY 24
Ontario Court Of Appeal Makes Significant Limitations Ruling
In a decision released January 11, 2017 - Crombie Property Holdings Limited v. McColl-Frontenac Inc. et. al - the Ontario Court of Appeal overturned a summary judgment decision of the Superior Court of Justice that dismissed a civil lawsuit seeking damages for property contamination based upon the running of a limitation period...
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2016
DECEMBER 20
Key Developments in Environmental Law 2016
Edited by Stanley Berger, Key Developments in Environmental Law 2016 provides expert insight into the landmark environmental law issues of the past year. The publication is an insightful collection of articles and includes: Federal Environmental Assessment Law: Two Nuclear Projects Clarify the Decision Makers’ Discretion, by Stanley Berger and Patents in Environmental Technology, by Eugene F. Derényi.
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DECEMBER 08
New Regulations And Proclamations Under The Waste-Free Ontario Act, 2016
As reported in our November 28, 2016 Energy and Environmental Law Newsletter, on November 30, 2016, the new Waste-Free Ontario Act, 2016 and its two scheduled statutes, the Resource Recovery and Circular Economy Act, 2016 and the Waste Diversion Transition Act, 2016 were proclaimed into law. The old Waste Diversion Act, 2002, was repealed...
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NOVEMBER 29
New Regulations And Proclamations Under The Waste-Free Ontario Act, 2016
The Ministry of Environment and Climate Change is moving to implement its new waste diversion legislation, the Waste-Free Ontario Act, 2016 (WFOA)...
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NOVEMBER 22
Access To Hazard Risk Assessment Report Denied On Basis Of Financial, Commercial And Security Concerns
Decision and Implications On October 13, 2016 the Saskatchewan Queen's Bench in Consumers' Co-operative Refineries Ltd.(CCRL) v. the City of Regina 2016 SKQB 335 held that information in a major instance hazard assessment report, prepared by Marsh Risk Consulting so that CCRL could obtain approvals from the City and the Ministry of the Environment (MOE) to expand its refinery, should not be publicly disclosed. CCRL had appealed decisions by both the City and the MOE to release redacted versions of the hazard assessment report to a journalist under both the Local Authority Freedom of Information and Protection of Privacy Act SS 1990-91, c L-27.1 and the Freedom of Information and Protection of Privacy Act SS1990-91 c F-22. These statutes, dealing with the rights and obligations of the City and MOE respectively, mirror access legislation both federally and in other provinces around the country...
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OCTOBER 12
ERT Finds Wind Farm Will Cause Serious Harm To Human Health And Serious And Irreversible Harm To The Little Brown Bat
On Friday, October 7, 2016, Ontario's Environmental Review Tribunal released its decision in Wiggins v. Ontario (MOECC) (ERT Case Nos.: 16-036 to 16-042)...
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SEPTEMBER 29
Ontario Ministry of Environment Risks Liability Once it Becomes Involved in Remediation Decisions
On September 16, 2016 the Superior Court of Ontario in Swaita v. The Queen (Ministry of Environment ) (2016) ONSC 5785 dismissed the Crown's motion to strike a statement of claim and action arising out of a spill involving the release of approximately 9000 litres of petroleum on Shell property, 100 feet from the plaintiff's property...
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SEPTEMBER 26
Four Recent Decisions Raise Concern About Parity in Sentencing
Four recent Ontario Provincial Court sentencing decisions - two under the Occupational Health & Safety Act ("OHSA"), and two under the Environmental Protection Act ("EPA"), throw into high relief the disparity of sentencing approaches under the two statutes, and suggest that environmental offences may be drawing disproportionately high fines...
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AUGUST 17
Cap and Trade is Coming to Ontario Is Your Business Ready?
The Province of Ontario is introducing a Cap and Trade Program over the next few months to address climate change. If you own or operate a facility generating more than 10,000 tonnes of carbon dioxide emissions (CO2), you need to be aware of some very firm and imminent deadlines and their potential impact on your business.
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JUNE 30
Divisional Court Confirms ERT's Interpretation Of REA Appeal Scheme
On June 28, 2016, Ontario's Divisional Court released its decision in Bryce v. Ontario (The Environment and Climate Change), 2016 ONSC 4191 ("Bryce") and provided parties to future Renewable Energy Approval ("REA") appeals with clear direction regarding s.145.2.1(5) of the Environmental Protection Act ("EPA"), causation and adjournment requests.
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JUNE 29
Due Diligence Defence Available To Employers Whose Employees Hit Gas Lines In Ontario
On June 28, 20161 , the Ontario Provincial Offences Court found Coco Paving Inc. ("CPI") not guilty of a s.14(1) Environmental Protection Act ("EPA") charge that was laid by the Ministry of Environment and Climate Change ("MOECC") in response to a gas line that was struck by a CPI employee.
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JUNE 28
Ont. Court Of Appeal Confirms City Can't Substitute A Different Access/Transport Route For One Specified In REA
On September 1, 2015 we reported in Fogler's Environmental and Energy Newsletter that the Ontario Divisional Court in Wpd Sumac Ridge Wind Inc. v. Corp. of the City of Kawartha Lakes 2015 ONSC 4164 quashed a resolution passed by the City.
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APRIL 28
Supreme Court of Canada Upholds EA for Darlington Nuclear New Build
Despite a dissenting opinion in the Federal Court of Appeal, the Supreme Court of Canada today denied leave to appeal the Federal Court of Appeal's September 10, 2015 decision.
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MARCH 22
Sentencing Reasons Just Released in Sunrise
On January 25, 2016 Ontario Court Judge Chapin fined Sunrise Propane Energy Group - the operator, a numbered company - the holder of the lease, the insurance policy and the licence under the Technical Safety and Standards Authority, and two directors of the company, a total of $5.3 million for a propane gas explosion...
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2015
DECEMBER 16
Change in Climate: Ontario Introduces Cap and Trade
DECEMBER 07
Cap and Trade Design Options Up for Comment
DECEMBER 01
Chevron Corp v Yaiguaje – Enforcing Judgments and Piercing Veils
"Chevron Corp v Yaiguaje – Enforcing Judgments and Piercing Veils”, Key Developments in Environmental Law (Toronto: Canada Law Book, 2015), Chapter 3
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NOVEMBER 30
Nuclear Waste Repository Decision Postponed
NOVEMBER 30
Ontario Court of Appeal: Statutory Claim for Damages for Cost of Remediation Not Precluded
NOVEMBER 16
A Brief Look at Bill 135: The Energy Statute Law Amendment Act, 2015
NOVEMBER 02
Limitation of Actions for Environmental Contamination: Discoverability
LIMITATION OF ACTIONS FOR ENVIRONMENTAL CONTAMINATION: DISCOVERABILITY
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OCTOBER 13
"Justification" under CEAA 2012
OCTOBER 06
UTILITY RATE REGULATORS GIVEN GREATER DISCRETION
SEPTEMBER 14
DARLINGTON NUCLEAR NEW BUILD ENVIRONMENTAL ASSESSMENT FULLY RESTORED ON APPEAL
SEPTEMBER 09
IN CHEVRON, SUPREME COURT UPHOLDS
SEPTEMBER 01
City Can't Substitute A Different Access/Transport Route for One Specified in REA
AUGUST 04
Valuing Contaminated Land When Remediation Costs are Distant
JULY 14
CONSTRUCTION PROJECT MANAGER GUILTY OF CRIMINAL NEGLIGENCE IN SCAFFOLDING COLLAPSE
MAY 14
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NOVEMBER 27
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APRIL 01
Bill on Local Food Act Re-introduced
In an effort to promote the local food industry in Ontario, Kathleen Wynne (Premier of Ontario and Minister of Agriculture and Food) reintroduced a Bill to propose the Local Food Act, which aims to increase awareness and encourage economic development of the local food market.
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Cap and Trade is Coming to Ontario is Your Business Ready?
CAP AND TRADE IS COMING TO ONTARIO IS YOUR BUSINESS READY?
