Monthly Archives: March 2014

Symposium on Flood and Drought Prevention in Alberta

Notice: Alberta is hosting a one-day symposium on April 29, 2014 to discuss progress and further improvements to prevent future floods and drought.

Alberta’s Watershed Management Symposium: Flood and Drought Mitigation will share the latest update on snowpack data and river forecasting, as well as assessments of mitigation options for Alberta’s most flood-prone river basins. Experts will also speak to the critical role natural headwaters play in flood and drought mitigation.

The Watershed Management Symposium: Flood and Drought Mitigation will be held Tuesday, April 29, at the BMO Centre in Calgary and you can register online to take part. The Symposium will be available to view online after the event.

By James Early.

Contaminated Lands Claims: Summary Dismissal

The Alberta Court of Appeal (the “Court”), today, ruled on the issues of summary dismissal, strict liability and nuisance. The decision relates to litigation commenced as a result of land contamination: Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108.  

Background

Canadian Pacific Railway Ltd. (“CPR”) has operated a locomotive repair facility known as the “Ogden shops” in Calgary, Alberta since the early 1900’s. At the time of construction, the Ogden shops were located outside of the city limits of Calgary. They are also located in a heavily industrialized zone.

Between the 1950’s and 1980’s a degreasing solvent consisting mostly of Trichloroethylene (“TCE”) was used by CPR at the Ogden shops. In 1999, CPR discovered that TCE had leaked into the groundwater under portions of the Ogden community, which is now a residential area located within the Calgary city limits.

The varying levels of TCE underneath the properties were divided into two categories. The first consisted of properties where there were measurable amounts of TCE that exceeded Health Canada thresholds. For areas within this category, CPR installed sub-slab depressurization (“SSD”) systems to exhaust the TCE vapours and reduce levels to below Heath Canada thresholds.  The second consisted of properties with levels of TCE below Health Canada thresholds which have not required any remediation.

Litigation

The plaintiffs, representing a class of residents in the Ogden area (the “Class”), commenced litigation against CPR alleging:

(a) the Class’ lands have been rendered unhealthy and much less fit for use and occupation;

(b) the Class’ lands have reduced value for renting to third parties; and

(c) the Class’ lands have greatly diminished value.

The Class did not advance claims for personal injury damages. It appears that this allegation was excluded to ensure that the Class would be certified.

Summary Dismissal Application by CPR

CPR applied to the Court of Queen’s Bench (“QB”) for summary dismissal of certain parts of the Class’ claim including:

(a) the strict liability claim by the Class under the doctrine in Rylands v Fletcher;

(b) the claim in nuisance by class members with SSD systems in place; and

(c) the claim in nuisance by class members without SSD systems.

The Class had conceded, before the summary dismissal application, that the Class’ claims in trespass should be dismissed. CPR did not attempt to summarily dismiss the claims in negligence.

QB Finding

QB would not dismiss the Class’ claims based upon strict liability or the claim in nuisance against those class members who had SSD systems installed. QB did, however, allow CPR’s application to dismiss the claim in nuisance against those class members who did not have SSD systems. QB concluded that damage to these non-SSD system lands was trivial or nonexistent.

CPR appealed the first two components of the ruling.

Test for Summary Dismissal

The Court reviewed the test for summary judgment in light of the recent decision of the Supreme Court of Canada in Hyryniak v Mauldin. In that decision, the Supreme Court found that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

Strict Liability

The rule in Rylands v Fletcher provides that a landowner who allows unusual dangerous substances to escape from his lands would be liable to his neighbours for any resulting damage. The liability under this principle is exceptional in that it is “strict”; liability is not dependent upon a finding of negligence or other fault.

The leading case on strict liability in Canada is Smith v Inco Ltd. The Court followed the guidance set by the Ontario Court of Appeal in Inco. The requirements of this tort are:

(a) the defendant made an “extraordinary”, “special” or “extra-hazardous” use of its land;

(b) the defendant brought onto its land something that was likely to do mischief if it escaped;

(c) the substance in question in fact escaped; and

(d) damage was caused to the plaintiff’s property as a result of the escape.

In allowing CPR’s appeal, and dismissing the Class’ claim on this issue, the Court found that CPR was not using its land in any unreasonable way, and the land was, in fact, zoned for this type of industrial use. Further, the Court found that it was not foreseeable that TCE would do any mischief at the time it was being used and that the TCE did not “escape” from the land (for an escape to occur, there must be some unintended accident or mishap). In this case, TCE “migrated” and was a normal and intended consequence of the activity being conducted on the land.

Since the other parts of the Rylands v Fletcher test were not met, the Court found it unnecessary to explore the issue of damages in order to dismiss the strict liability claims of the Class. The Court did consider the issue of damages in its analysis of the nuisance claims.

Nuisance

Claims in nuisance depend on proof of damage. Nominal or trivial damages are insufficient to support a claim in nuisance.

QB, in dismissing CPR’s application, held that there was some proof of damage at the SSD system lands for the following reasons:

– the presence of vapours in some of the SSD system properties;

– the consequences and impacts of mitigation; and

– the very need for mitigation.

The Court found no error in QB’s reasons as they pertain to the nuisance claim advanced by those members of the class located in the SSD system area. As such, the Court dismissed that portion of CPR’s appeal, directing that this issue proceed to trial.

Summary

CPR now faces ongoing litigation with the Class in relation to claims in negligence, and the claims of the SSD system residence in nuisance.

This decision provides litigants with an up-to-date precedent of how summary dismissal applications will be handled by the Alberta courts post-Hrynyiak. The decision should also provide litigants pursuing and opposing land contamination claims with guidance on how Alberta courts will handle the strict liability and nuisance aspects of those claims. To see the full decision, click here.

By James Early.

Flood Mitigation In Alberta: Deadline

The Alberta Government is reminding homeowners that the deadline to apply for a flood mitigation permit is March 31, 2014. Taken from the Government’s announcement:

“The Government of Alberta would like to remind all those home and property owners living in flood fringe areas who applied to the 2013 Southern Alberta Floods Disaster Recovery Program (DRP) for financial assistance that the deadline to apply for municipal permits for flood mitigation work is approaching.

The province recognizes that it may be difficult for 2013 flood-affected home and property owners to complete minimum mitigation measures in time for the 2014 flood season. Because of this, it is important to ensure future DRP eligibility by completing one of the following two options:

Obtain a permit by March 31, 2014, to show intent to complete minimum mitigation measures.

If obtaining a permit is not possible, submit a Notice of Intent to Mitigate to the DRP stating your plan to undertake mitigation work.

In the case of flood fringe rebuilds, including mitigation measures in a work plan will also be recognized as intent to mitigate. However, permits must still be acquired.

Flood mitigation must be undertaken by home and property owners receiving DRP funding in the flood fringe to qualify for government assistance in the event of future flooding.

Obtaining permits or submitting a Notice of Intent to Mitigate by March 31, 2014, will ensure DRP flood coverage in the event of future flooding.

Mitigation work must be completed by December 31, 2014, to be eligible for funding after that date.

If you do not have access to the forms online you can request to have a Flood Mitigation Measures and Permit Form mailed to you by calling the DRP Call Centre toll -free at 1-888-671-1111.”

For more information, you can click here to link to the Alberta Government website.

By James Early.

Bill 18 – 2014: Water Sustainability Act (British Columbia)

On Tuesday, March 11, 2014 the B.C. Government introduced its new Water Sustainability Act (the “Act”). In planning the overhaul of the 105-year-old Water Act, the B.C. Government recognized that:

“Water is our most important natural resource:  without it, there would be no life on Earth. We all need it – for drinking, washing, cooking, growing food, and supporting every aspect of a healthy environment, a growing economy and our prosperous communities.

 

British Columbia has more than 290 watersheds, including fish-bearing rivers and streams, lakes and wetlands and the Government recognized that with the a growing population, a changing climate and expanding development, the pressures on those waters were growing and steps needed to be taken to ensure that water was able to meet today’s needs, and the needs of generations to come.

The Act will repeal most of the Water Act by modernizing its language and will do the following:

– re-enact the regulatory scheme for the diversion and use of stream water and apply that scheme to both stream water and groundwater;

– authorize the establishment of water objectives and requirements that water objectives be considered in decision making under the Act;

– mandate the consideration of the environmental flow needs of a stream in licensing decisions;

– move various provisions from the Fish Protection Act respecting sensitive streams, bank-to-bank dams and fish population protection orders to the Act as well as provisions respecting the protection of streams;

– provide new powers to be applied when streams are at risk of falling or have fallen below their critical environmental flow thresholds to modify the existing precedence of water use for the purpose of protecting the aquatic ecosystem of streams and aquifers and essential domestic uses;

– rename water management plans as water sustainability plans and provide new regulatory powers that can be exercised on the recommendation of a water sustainability plan, including regulations restricting the authority of approving officers, restricting the use of land or resources, reducing water rights, imposing requirements in respect of works and providing for dedicated agricultural water that can only be used for prescribed land and purposes;

– authorize an administrative monetary penalty scheme;

– authorize regulations providing powers and duties of officials under the Act to officials under other enactments;

– repeal most of the Water Act, leaving only provisions related to water users’ communities, and renames the Water Act as the Water Users’ Communities Act;

– make consequential amendments to other Acts.

The Act is certainly a positive step from the archaic Water Act, though there are already suggestions that the Act is vague, watered-down and leaves too much of the decision making to the discretion of regulators. Staffing levels are also being cited as a cause for concern, with a particular fear that low staffing levels will result in lower monitoring standards and enforcement.

Other criticisms of the Act include the fact that it is merely a “framework” which leaves much of the details to future regulations and that it fails to recognize water as a human right or public trust.

The B.C. Government maintains, however, that the Act makes B.C. an environmental stewardship leader. Time will tell.

Over the next thirty days, the B.C. public will be consulted on the issue of fees for major industrial water users before Minister Polak makes a recommendation to the Treasury Board on that issue. The Act is expected to be in force in Spring, 2015.

By James Early.

Coastal Douglas-fir Needs Protection

In May, 2013, the Wilderness Committee and ForestEthics Solutions commenced litigation against the B.C. Government over its alleged failure to protect Coastal Douglas-fir forests.

According to its own 1999 paper, the B.C. Ministry of Environment, Lands and Parks recognized that:

“[t]owering Douglas-fir forests once dominated a narrow strip of low-lying land along the southeastern coast of Vancouver Island, the Gulf Islands, and parts of the Lower Mainland and Sunshine Coast. Now only fragments of these unique ecosystems remain in an old-growth state and we are in danger of losing what is left”.

In discussing why old-growth Douglas-fir forests are important, the paper continued:

“Although old-growth Douglas-fir forests are important for many practical reasons, the most important reason is that they are an essential part of the unique biodiversity of British Columbia. The intrinsic value of a naturally diverse environment is well recognized, and protecting these forests will help maintain the habitats of many plant and animal species”.

Unfortunately, though long-recognized as important, loggers continue to hack down large stands of Douglas-fir to the point that the B.C. Forest Practices Board has estimated that only 1,600km2 still remains as forest and, further, that only 1% (that’s an area smaller than Stanley Park) is in old-growth condition. The result is the Wilderness Committee and ForestEthics Solutions claim.

At the end of February, 2014, EcoJustice was arguing before the B.C. Supreme Court to encourage the Court to find that the government of British Columbia is bound by law to protect the Douglas-fir ecosystem. British Columbia lacks specific legislation to address endangered species and, while the B.C. Ministry of Environment designated the Coastal Douglas-fir as ‘protected’ in 2006, logging has continued since that time.

There is no word, yet, on when the Court will decide on the case, but be sure to stay tuned.

By James Early.

Fisheries and Oceans Canada ‘fudging numbers’, injunction granted

In February, five member nations under the Nuu-chah-nulth Tribal Council filed for an injunction against DFO, opposing the proposed reopening of commercial herring fisheries in three areas on the west coast of Vancouver Island.

In granting the injunction, the Federal Court of Canada found that DFO had been “fudging numbers” and made a decision that was “not science-based”. In fact, DFO’s own experts agreed that all three of the fishing areas should not be opened as stocks were still low and safe harvesting could not be achieved. Despite this, the Fisheries Minister proceeded to open the fisheries.

In responding to the decision, the DFO’s office stated: “[t]he decision to re-open the herring fishery in these three areas was based on solid fisheries science”. Evidently, not the DFO’s own science, however.

No decision has yet been made by DFO as to the next steps it will take. For media reporting and coverage on the decision, see here.

By James Early.

Parlee McLaws LLP elects James F. McGinnis, Q.C. to Managing Partner

Last week, James F. McGinnis, Q.C. was unanimously elected as Parlee McLaws LLP’s Managing Partner.

Jamie acknowledged this as follows:

“I am tremendously honoured that the partners of Parlee McLaws have entrusted me with this leadership position. Our firm is an Alberta icon with over 125 years of providing exceptional legal services to the people of Alberta, as well as serving clients in Canada and around the world. The lawyers and staff in both our Calgary and Edmonton offices are extraordinary. We pride ourselves on being leaders in our profession and in the communities we are privileged to serve.”

Congratulations to Jamie. For more, please see here.

By James Early.