Articles 2020

In R v Great Lakes Stevedoring Company Ltd, companies are given a stark reminder that provincial environmental laws and regulations must be complied with notwithstanding compliance with all applicable federal laws and regulations and operating exclusively on federal property.

Earth Day 2020: five tips to green your business travel.

The COVID-19 pandemic has impacted environmental permitting and enforcement activities in many Canadian jurisdictions. This update provides a cross-country overview of Canadian government pronouncements or guidance in respect of environmental permitting and compliance obligations during the pandemic.

The Ontario Government has passed a regulation temporarily exempting proposals from Part II of the Environmental Bill of Rights. The Province will not be seeking public input or consider the Statements of Environmental Values when making decisions that are environmentally significant. The exemption is in place until 30 days after the termination of the Emergency Declaration, made on March 17, 2020, under the Emergency Management and Civil Protection Act in response to the Covid-19 Pandemic.

COVID-19 has brought upheaval across all industries and sectors of society. While this is no less true with respect to environmental matters, many environmental legal requirements remain in place and require continued compliance, despite challenges faced by companies in Canada. On the other hand, many court proceedings and municipal processes have been suspended. This article sets out some practical guidance on how to navigate both ends of this spectrum.

The abandonment of the appeal leaves the decision of the Ontario Superior Court in Soleimani v Rolland Levesque intact. That decision found that the Ministry of Environment’s involvement in investigating and remediating ground water contamination under the EPA does not establish an alternative adjudication or dispute resolution process that would toll or suspend a limitation period pursuant to s. 5(1)(a)(iv) of the Limitations Act

On December 4, 2019, Ontario’s Ministry of the Environment, Conservation and Parks (“MECP”) filed the long-awaited On-Site and Excess Soil Management Regulation (“Excess Soil Regulation”) and complementary amendments to Ontario’s Records of Site Condition (O Reg 153/04) and Waste Management (Reg 347 and O Reg 351/12) regulations. The Excess Soil Regulation and complementary regulatory amendments will come into legal force in phases.

In a recent decision, the SCC in R v Resolute Forest Products Canada Inc found that an indemnity against pollution claims granted by Ontario did not cover a regulatory order to remediate contamination. The SCC found that the indemnity did not cover first-party regulatory claims such as an order to prevent discharges. The decision highlights the importance of delineating the sources of contamination and conditions of a business’ property before drafting an indemnity for environmental claims.

In October, the MECP posted a proposal to the Environmental Registry for amendments to O. Reg. 63/09 under the Ontario Pesticides Act. The proposal would replace pesticide Classes 1 to 6 with four classes – Class A (manufacturing), Class B (restricted), Class C (commercial) and Class D (domestic). Class 12, which relates to neonicotinoid treated seeds, would be replaced with Class E. Classes 7 to 11, would no longer be needed as they would be expressly incorporated into the Regulation.

In 2020, the Supreme Court will decide whether the federal government has jurisdiction to price carbon under the GGPA. If upheld, the GGPPA will layer over a complex patchwork of provincial regulation and policy. Even if struck down, the federal government will probably retain some role in GHG regulation. While both federal and provincial governments likely have a say in GHG regulations, questions about the allocation of authority and the form regulations will take have yet to be answered.