Articles

Topics covered for this week’s civil decisions of the Court of Appeal for Ontario included annulling a bankruptcy where the bankrupt was not really insolvent and appeared only to try to avoid paying on a judgment, damages for breach of an agreement of purchase and sale of land, discoverability of a claim for negligent tax advice (“appropriate means”), and amending pleadings.

This article considers the recent bill of environmental rights that one city granted to Lake Erie. It examines the history of granting legal rights to nature, as well as arguments for and against. While reluctant to dismiss granting nature legal rights as largely a façade, the authors conclude that more complex regulatory solutions premised on cooperation between multiple stakeholders seem more likely to deliver a viable, long-term solution for the Lake.

The decision in Redwater Energy Corporation (Re) may, for now, resolve the uncertainty regarding the end‐of‐life obligations owed by an AER licensee debtor in an insolvency proceeding. This article describes the likely consequences of the decision for the federal insolvency regime, energy industry, debt financing, and directors of oil and gas companies.

The SCC’s decision in Orphan Well Association v. Grant Thornton Limited says there are end-of-life remedial obligations associated with a bankrupt’s non-productive wells that have to be addressed. These remedial obligations are a prioritization of the use of the bankrupt’s assets for compliance with its regulatory obligations to clean up under the terms of its licenses.This article provides an overview of the impact of the decision on insolvency professionals and secured creditors.

The potential conflict between federal insolvency law and provincial environmental law that came to a head in Orphan Well Association v Grant Thornton Ltd was settled by the Supreme Court of Canada on January 31, 2019.

In 2018, the Cannabis Act came into force and introduced a federal regulatory regime to control the licensing and production of cannabis. However, the Act is largely silent as to the environmental obligations of licensed cultivators and processors (“licensees”). Licensees currently operate in a complex and overlapping environmental regime with significant potential liability. This article provides an overview of a licensee’s key obligations in regard to cannabis waste management.

Secured creditors should engage with the debtor, environmental and insolvency professionals as quickly as possible to protect their investment in collateral. Secured creditors will also need to consider whether it makes sense to risks of regulatory orders if they commence an insolvency process as there is a risk that there will be no distribution to creditors after satisfying environmental obligations.

The Ontario Toxics Reduction Act, 2009 (TRA) provided cost-effective benefits that were distinct and broader in scope than the federal Chemicals Management Plan under CEPA. The TRA had potential to make large reductions in toxic discharges over time, particularly if more of its provisions were brought into force. Despite this, however, Ontario proposed to repeal the TRA by the end of 2021. Doing so, significant transparency in toxics reduction could be lost, as well.

This article provides an overview of the limitations of the Cap and Trade Cancellation Act, 2018 (the “CTCA”) and recommendations for its implementation in 2019 and beyond. It discusses the public consultation process leading to the enacted CTCA as well as the Ministry of Environment, Conservation and Parks’ compliance with the Environmental Bill of Rights.