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Environment

Canada

Overview
Including: Environmental Policy and its Enforcement; Environmental Permits; Waste; Liabilities; Contaminated Land; Powers of Regulators; Reporting and Disclosure Obligations; General; Emissions Trading and Climate Change; Asbestos; Environmental Insurance Liabilities; New Cases, Trends and Developments.

The minister of sustainable development, environment and parks recently introduced Bill 42, which, if passed into law, will create government regulatory powers that will deepen its control over greenhouse gas emissions through market mechanisms. Essentially, the bill will allow for the creation of a provincial cap-and-trade system, the details of which will be established by government regulation following the enactment of the law.

Ontario's deputy premier and minister of energy and infrastructure recently introduced Bill 150 for its first reading in the legislature. If passed, the bill would create a new standalone Green Energy Act 2009 and significantly amend or repeal 17 other statutes in order to set Ontario on course to a greener economy and a conservation culture.

The Quebec government plans to adopt a new regulation in order to collect information on the impact of water withdrawals and allow for better management of conflicting uses of water resources. Industries, businesses, municipalities and institutions will be required to communicate various data to the government on the water that they withdraw from the natural environment.

A new list of Canadian governmental incentives targeted specifically at businesses is now making it easier to be green. This update provides an overview of the environmental incentive programmes available to businesses located in Ontario, together with a description of the respective eligibility requirements.

Under British Columbia’s Environmental Management Act, the Ministry of Environment has the authority to issue contaminated sites approvals, notably certificates of compliance and approvals in principle of remediation plans. The newly created and independent Society of Contaminated Sites Approved Professionals of British Columbia now processes the vast majority of applications.

Canadian companies face an uncomfortable new reality with respect to cross-border pollution: even if they conduct no activities in the United States, the long arm of the US Environmental Protection Agency is applicable if their Canadian operations result in pollution south of the border.

Litigation

Canada

A recent decison has clarified that capital markets participants which reach a settlement agreement with the Ontario Securities Commission with respect to securities law infractions may still be exposed to civil liability in class actions. Previously, it was unclear whether a party injured by a market participant's conduct could bring a class action, especially if it had received substantial compensation from a regulatory proceeding.

A recent Ontario Divisional Court decision speaks to the ability of respondents to circumvent the disciplinary process of the Investment Industry Regulatory Organisation of Canada (IIROC) by means of judicial review. It confirms that when an individual or firm contractually submits to IIROC's jurisdiction, it will be unable to bypass IIROC's disciplinary procedures by proceeding directly to the civil courts.

In Crookes v Newton the Supreme Court held that the creation of a hyperlink to allegedly defamatory material was not publication of that material. The decision may not apply in the province of Ontario or to so-called 'automatic' or 'frame' hyperlinks.

The Ontario Court of Appeal has handed down an important decision in Combined Air Mechanical Services Inc v Flesch in which it clarified the scope and availability of the summary judgment procedure in Ontario. The court has introduced a new legal test – the 'full appreciation' test, which directs when a court may resolve a case by way of summary judgment under Rule 20 of the Rules of Civil Procedure.

The Ontario Court of Appeal has reversed a trial award to thousands of Ontario residents who had sued Inco for property devaluation caused by soil contamination. The decision limits claims of private nuisance and Rylands v Fletcher strict liability, and clarifies the application of limitation periods for class actions.

In a recent decision released in the Hollinger Inc Companies' Creditors Arrangements Act proceeding, the Ontario Court of Appeal upheld a sealing order that protects from public disclosure the settlement amounts to be paid until such time as the settlements receive court approval. While in the past settlement privilege has been protected by sealing orders, such cases are uncommon.

More updates >

Product Liability

Canada

Product liability is a specialized area of tort law that is evolving in response to new developments in business and consumer transactions and the recent introduction of class actions throughout Canada. This update discusses some of the highlights of recent Canadian product liability law with a particular focus on Ontario.