Tag Archives: alberta

EPEA v. Limitations Act: Test Set By Alberta Court For Extending Limitation For Environmental Claims

The Alberta Court of Queen’s Bench has set the “test” to be followed in s. 218 applications pursuant to the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 (“EPEA”) in its May 19, 2016 decision in Lakeview Village Professional Centre Corporation v Suncor Energy Inc, et al 2016 ABQB 288.

Background

The plaintiff had purchased lands in the Lakeview subdivision of Calgary in 1998. The plaintiff was aware that a gas station was formerly on the site. This raised concerns of potential contamination of the lands; however, an initial environmental assessment found no significant contamination.

A number of years later, in 2013, the plaintiff received an offer to purchase the lands, prompting another environmental assessment. This assessment found contamination at a level that required remediation of the lands, including the removal of piping, concrete and soil. The plaintiff has spent approximately $400,000 on remediation to date, with further costs expected.

The Action

As a result of these remediation costs, the plaintiff wishes to recoup some or all of these costs from former owners of the lands, including the successor of the gas station operator and the vendor of the lands who commissioned the first environmental assessment (Suncor and Commonwealth Business Management Ltd. (“Commonwealth”)).

The Problem

Normally, the Plaintiff’s action would be out of time under the Limitations Act, R.S.A. 2000, c. L-12, as the contamination / sale of land occurred well past the 10-year ultimate limitation period. However, there is a provision in EPEA that permits a judge to extend the limitation period in some cases.

The Law

Section 218 of EPEA provides that a judge may extend a limitation period where the basis for the action arises out of a “release of a substance into the environment”. The purpose of this extension is that sometimes, contamination may not be identified for several years.

Where an application is made, s. 218 does identify a list of things for a judge to consider: (a) when the alleged adverse effect occurred; (b) whether the alleged adverse effect ought to have been discovered by the claimant had the claimant exercised due diligence in ascertaining the presence of the alleged adverse effect, and whether the claimant exercised such due diligence; (c) whether extending the limitation period would prejudice the proposed defendant’s ability to maintain a defence to the claim on the merits; (d) any other criteria the court considers to be relevant.

However, there was little in the way of case law on this issue, and there was no “test” to guide the court in considering these types of applications. In particular, does a court decide conclusively in these applications whether the limitation period should, or should not be extended? Or, can the court make a preliminary determination giving plaintiffs the green light to go ahead to trial, where the limitation argument may surface again?

The New Test

Ultimately, Justice Martin created a two-step approach for use in s. 218 applications:

  1. Is there sufficient evidence on the s. 218 factors to grant an extension of the limitation period?
  2. If there is not enough evidence to make that determination, or if there is sufficient evidence but an issue for trial could be determined prematurely, has the claimant shown a good arguable case for an extension? If so, the claimant is entitled to an extension of the limitation period subject to a final determination of the issue at trial.

The court reasoned that this approach respects the purpose of s. 218 while acknowledging the legitimate interest of a claimant to know whether to spend further resources on their claim. It also allows the court to extend the limitation period for obviously meritorious s. 218 cases or to weed out cases that are attempting to “abuse the system”.

The Decision

Lakeview was successful in its application and may now proceed with a claim against Suncor and Commonwealth.

The court found that the “adverse effect” may have been as early as 1969, through to as late as 2013, and that this time frame is “not so long ago that it would be unfair to allow the action to proceed against either party”.

Further, the court determined (on a preliminary basis only) that Lakeview had exercised due diligence when purchasing the property from Commonwealth. Lakeview had made it a condition of its purchase that Commonwealth provide information on the environmental status of the property. Commonwealth had commissioned its own environmental assessment which concluded that there was no evidence of significant contamination and no further investigation would be warranted.

The court found no prejudice to Suncor or Commonwealth as neither had presented any evidence that an extension to the limitation period would prejudice their ability to maintain a defence on the merits.

Finally, Commonwealth had attempted to argue that s. 218 only applied to parties that had caused or contributed to the contamination of the lands and as it was only an owner of lands (between Suncor and Lakeview), s. 218 did not apply.

The court, however, found that the wording of s. 218 is broad. Its opening paragraph refers to civil proceedings “where the basis for the proceeding is an alleged adverse effect”. The basis of Lakeview’s action is determining liability from the fallout of an alleged adverse effect. In addition, EPEA also contemplates the liability of a former owner for remediation in its definition of “persons responsible” for a contaminated site:

SECTION 107
Interpretation and application

107 (1) In this Part,

(c) “person responsible for the contaminated site” means

(i) a person responsible for the substance that is in, on or under the contaminated site,

(ii) any other person who the Director considers caused or contributed to the release of the substance into the environment,

(iii) the owner of the contaminated site,

(iv) any previous owner of the contaminated site who was the owner at any time when the substance was in, on or under the contaminated site,


[Emphasis added]

As such, the court found that this case was one contemplated by s. 218, where the harmful effects of contamination were not evident for a number of years, due diligence was shown, and there was no prejudice to the defendants. Accordingly, the court extended the limitation period for Lakeview’s claim and has allowed this matter to proceed to trial.

James Early

Calgary SDAB Quashes Inglewood Bird Sanctuary Development Permit

The Development Authority of The City of Calgary (“Development Authority”) had approved a development permit for a new community recreation facility located on a site known as the Inglewood Bird Sanctuary (“Sanctuary”). The Sanctuary is a Regional Park in Calgary’s Park system and the site id designated Major Public Open Space.

The Appellants in this matter (SDAB2015-0159 (Re), 2015 CGYSDAB 159 (CanLII)) were the Inglewood Community Association and Nature Calgary. These two organizations challenged the approval of the development permit for an ‘outdoor classroom’ on the grounds that:

(a) necessary stakeholders were not circulated and/or consulted before development permit filing; and

(b) facilities at the Bird Sanctuary may be well need to be augmented but the location and design can be considerably improved in a way that is not prejudicial to the sensitivity of the Bird Sanctuary.

In particular, the appellants contended that the location of the proposed development was in contravention of the Municipal Development Plan, the Urban Parks Master Plan, the Natural Area Management Plan, the Biodiversity Strategic Plan, and the Inglewood Bird Sanctuary Master Plan.

The Sanctuary has a Federal Migratory Bird Sanctuary designation which confers special significance that helps to protect it from potentially destructive whims of a local community. It hands the Sanctuary a wider purpose and establish it as a keystone migratory bird habitat within the patchwork of international conservation areas (Inglewood Bird Sanctuary Master Plan, page 51). In the City’s Natural Area Management Plan the Bird Sanctuary is listed as a “Special Protection Natural Area”. It is listed as having the characteristics of “high overall sensitivity, provincial/regional significance and highly productive habitat”.

The Development Authority argued that the Inglewood Bird Sanctuary Master Plan, Calgary Urban Park Master Plan and Natural Area Management Plan are not relevant to the development at hand and, therefore, outside of the Board’s jurisdiction. The Board, however, disagreed, finding that section 35(a) of the Land Use Bylaw refers to “plans and policies affecting the parcel” and, further, that this section applies to policies of statutory and non-statutory plan documents of The City of Calgary. The section is not limited solely to statutory plans.

The Board placed, what it termed, “pivotal weight” on point 4.8 of the Biophysical Impact Assessment, which states:

“4.8       Environmentally Significant Areas

The Sanctuary is within the provincial ESA # 289. This ESA includes the Bow River Valley and is of national significance as it encompasses unique landforms, observations of species of concern, important wildlife habitat, intact riparian areas and headwater streams, and large natural areas (Fiera Biological Consulting Ltd. 2009).

The Sanctuary is considered “Special Protection Natural Area” by The City of Calgary with the Natural Environment Park designation. This designation is meant to describe areas of high environmental sensitivity, including high wildlife habitat quality and primarily native vegetation (City of Calgary 1984). In particular, the balsam popular forests of the Sanctuary are of high conservation value (City of Calgary 1994). The Inglewood Bird Sanctuary is also listed as a Federal Migratory Bird Sanctuary under the Migratory Bird Sanctuary Regulations (Government of Canada 1994).

[…]

In the Board’s view this statement astutely described the importance of the “Special Protection Natural Area”. The Sanctuary was found to be an area of a high environmental sensitivity, including high wildlife habitat quality and primarily native vegetation. This was a significant factor considered by the Board.

Further, the Board was persuaded on the significance of the Sanctuary by the fact that it is protected as a Federal Migratory Bird Sanctuary under the Migratory Bird Sanctuary Regulations which, to the Board, spoke volumes about the unique status of the Sanctuary and the special environmental significance of it.

Finally, the Board cited the evidence of famed environmental educator Brian Keating, and the Canadian Parks and Wilderness Society (“CPAWS”) as corroborating that evidence, wherein Mr. Keating stated:

“The Sanctuary needs to be respected for the purpose intended: the preservation of some of the best and most diverse bird habitat within the City It is a preserve we need to protect as a sanctuary, a celebration of high-quality, critical riparian wildlife habitat. More structures will only degrade, not enhance the small treasure of Calgary”.

As a result, therefore, the Board overturned the decision of the Development Authority to approve the development permit, and declared that permit null and void.

James Early

Site C Dam Faces Alberta Opposition

Two Alberta First Nations have filed legal proceedings in Federal Court seeking a judicial review of the approval of the Site C dam project by the British Columbia government earlier this fall.

The Mikisew Cree and Athabasca Chipewyan allege that they were not consulted by government, and that the decision to approve the Site C dam was made without considering the downstream effects of the dam on the Peace-Athabasca Delta, a UNESCO World Heritage Site and one of the largest freshwater deltas in the world.

This judicial review application follows of the heels of an earlier application by several Treaty 8 First Nations in B.C. In that application, the B.C. First Nations allege that the Ministry of Environment failed to fully consider the effects that the dam will have on First Nations’ treaty rights. The Peace Valley Landowners Association is also part of a judicial review application in relation to Site C.

The approval of the Site C dam came despite a Federal-provincial Joint Review Panel report which found that the dam would produce impacts on First Nation treaty rights that could not be mitigated. That same Panel found that Site C “would not have any measurable effect on the Peace-Athabasca Delta,” and that there are not any direct links between the Site C project and effects on the Delta.

James Early

A Battle Line is Drawn | Maligne Lake Development Faces Opposition

The Canadian Parks and Wilderness Society (“CPAWS”) and the Jasper Environmental Association (“JEA”) have commenced judicial review proceedings in Federal Court, challenging a decision to approve the development of tent cabins at Maligne Lake in Jasper National Park.

Jasper National Park’s long-term ecological vision for the area is set forth in a 2010 Management Plan which, in part, states:

“[n]o new land will be released for overnight commercial accommodation outside the [Jasper town site]”.

Despite this prohibition on further development, the proposal for development was nevertheless approved.

CPAWS and JEA have applied for judicial review on a number of grounds including:

1. the 2010 Management Plan prohibits the type of development that has been approved;

2. the proposed development does not constitute a “change in circumstances” that would warrant an amendment to the 2010 Management Plan; and

3. the decision was made without regard for the continuing decline of the Maligne caribou herd and the status of both Southern Mountain Caribou and grizzly bear populations.

The Jasper National Park decision continues the Federal Government trend of overdeveloping national parks, often contrary to on-the-ground policy. In his article, “Developers once again eager to pave paradise”, CPAWS Board Member, and Troy Media Editor-in-Chief, Doug Firby, explains some of the background of the history of development of our national parks.

The battle line has been drawn at Maligne Lake.

James Early

Final South Saskatchewan Regional Plan Released

Alberta’s Land-use Framework (LUF), released in December 2008, established seven land-use regions and called for the development of a regional plan for each. The Alberta Land Stewardship Act (the “Act”) supports the LUF and establishes the legal basis for the development of regional plans.

The South Saskatchewan Regional Plan (the “Plan”) is one such plan and was released today by the Alberta Government. To review the Plan, just click here.

While the Plan establishes a long term vision for the South Saskatchewan region and places various commitments and requirements on those who make land-use decisions in Alberta, it is largely toothless when it comes to enforcement by the public. The Act provides that a regional plan, while binding the Crown, local government bodies and decision-makers, does not

– create or provide any person with a cause of action or a right or ability to bring an application or proceeding in or before any court or in or before a decision‑maker,

– create any claim exercisable by any person, or

– confer jurisdiction on any court or decision‑maker to grant relief in respect of any claim.

A person may, however, make a written complaint to the secretariat that a regional plan is not being complied with. If, following the investigation of the secretariat, the stewardship commissioner is satisfied that there has been non-compliance with a regional plan, the stewardship commissioner may apply to the Court of Queen’s Bench for an order, inter alia:

– to stop something being done, to require something to be done or to change the way in which something is being done;

– to manage the conduct of a person who is non‑compliant;

– declaring that any regulatory instrument of a local government body does or does not comply with a regional plan and, if necessary, ordering compliance;

– to take any action or measure necessary to remedy or rectify non‑compliance with a regional plan and, if necessary, an order to prevent a reoccurrence of the contravention;

– to amend or repeal a regulatory instrument of a local government body that does not comply with a regional plan.

As for the Plan, itself, criticism is already being directed at it in terms of its failure to fully protect the Castle Special Place and the headwaters of the Oldman River. Criticism is also aimed at the Plan’s failure to stand up to industry and motorized recreation groups, although, in turn, those recreation groups are also complaining that the Plan would make some off-roading trails off limits.

As expected, few appear to be happy with the final plan. So far, industry has been silent.

James Early

Silent Spring: Ongoing Legal Wrangling’s Over Agricultural Pesticide Use

It’s been 52 years since Rachel Carson documented the detrimental effects of pesticides on the environment in her book, Silent Spring. Many positive steps have been taken by countries, states and municipalities around the world, but pesticide use continues to be an ongoing issue. In just the last couple of months, it has been widely written about by EcoJustice, here, West Coast Environmental Law, here, and the David Suzuki Foundation, here. The list goes on, and applies to bees, fish, human health and a myriad of other complaints.

These issues also continue to play themselves out in court. In Nauss v Waalderbos and Viking Crest Farm Ltd., a decision just released by the Supreme Court of Nova Scotia, the court had to consider two competing applications regarding the continuation of the plaintiffs’ claim.

First, some background. The plaintiffs reside at their organic farm in Shinimicas, Nova Scotia. The defendants farmed the field across the road. The plaintiffs alleged that on May 15, 2007 the defendant sprayed his lands with herbicide which drifted (the “herbicidal drift” or “herbicidal overspray”) on to their property causing Mrs. Nauss significant health issues, damaging their crops and allegedly leading to four of their horses miscarrying. In addition, the plaintiffs alleged that the defendants’ ditching activities led to contaminated run-off.

Instead of bringing their concerns to the Farm Practices Board (the “Board”), under the Farm Practices Act, S.N.S. 2000, c.3 (the “Act”), and despite the fact that the Nova Scotia Department of Environment advised the plaintiffs that they could approach the Board, the plaintiffs instead commenced legal proceedings in court. When the defendants learned of this, they successfully applied to have the plaintiffs’ claim stayed (put on hold) on the basis that they should first pursue their claim through the Board.

The legislative framework in the Act provides:

10(1) …no person shall

(a) commence a civil action in nuisance, negligence or otherwise, for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation; …

but that section does not apply:

10(2) …

(a) to an agricultural operation that is found by the Board not to comply with normal farm practices. (my emphasis)

In granting the stay, the court found that no civil action could be pursued unless the Board first determined that the defendants’ actions were not in compliance with normal farm practices. The Order, staying the action, contained the following provision:

“…after considering the … application, should the Farm Practices Board find that the    defendants’ alleged conduct falls under s.10(2) of the Farm Practices Act, the stay            granted herein is immediately lifted.

After bringing their concerns to the Board, the Board dismissed the plaintiffs’ complaints. It found that the defendants’ spraying activity was in accordance with normal farm practice and that there was insufficient evidence, on a balance of probabilities, that the spray had caused the alleged damage. Though the plaintiffs appealed the Board’s decision, this was also dismissed.

Following the exhaustion of the Board process, the plaintiffs returned to the Court to ask that the stay be lifted and the civil action be allowed to proceed. In a cross-application, the defendants asked that the stay be lifted and the claim be dismissed.

In part, the plaintiffs argued that, despite the Board’s finding, it had made a decision which was beyond the scope of the Board’s mandate. Essentially, the plaintiffs argued that because the Board did not have jurisdiction to address every issue in their claim, they should not be prohibited from their civil action by s.10(1) of the Act.

As expected, however, the Court reasoned that, while the Board did not have jurisdiction to address the issue of damages, the damages issue would only be adjudicated after a determination had been made on the issue of liability.

One important issue that arose is that, until this case, no Canadian court had settled the issue of whether a “herbicidal drift” (the drift of herbicides from one property to another) constituted an “other disturbance” as defined in right-to-farm legislation across the country. The Court could find no authority on this issue and determined, absent contrary authority, that a “herbicidal drift”, “herbicidal overspray” or “contaminated run-off from ditching” are, in fact, “other disturbances”.

Ultimately, the Court struck the plaintiffs’ claims finding that the defendants’ actions were in compliance with normal farming practices and, as such, civil action was prohibited under the Act. The applicable standard of care for agricultural operations in this case was that of “normal farm practice”.

If you are caught up in the overspray of pesticides and suffer damages as a result, if the actions of the “sprayer” were in the course of normal farm practice, you may very well be prohibited by your local right-to-farm legislation from seeking damages as a result. In Alberta, the relevant provision is contained in the Agricultural Operation Practices Act, RSA 2000, c. A-7, which provides:

Application re disturbance

3(1) A person who is aggrieved by, or an owner or operator who is aware that a person is aggrieved by, any odour, noise, dust, smoke or other disturbance resulting from an     agricultural operation may apply in writing to the Minister to request consideration of whether the disturbance results from a generally accepted agricultural practice.

(2) An application under subsection (1) must be in writing and must contain a statement of the nature of the disturbance, the name and address of the applicant, the location of the agricultural operation, the name and address of the owner or operator, if known, the name and address of the person who is aggrieved and the steps taken by the applicant, if any, to resolve the disturbance.

(3) The parties to an application are the applicant, the owner or operator or the person aggrieved and any other person the Minister considers appropriate.

(4) A person shall not commence an action in nuisance for any odour, noise, dust, smoke or other disturbance resulting from an agricultural operation unless an application has been made under this section with respect to the disturbance at least 90 working days previously.

There appears to have been no judicial consideration of this section in Alberta, at present. I expect that, following an application by an aggrieved party, if the Board determines that the actions of the sprayer constituted a “generally accepted agricultural practice”, the chances of getting past the liability stage of adjudication in a civil matter are small.

James Early

Northern Gateway Dealt Another Setback

In a unanimous decision, the Supreme Court of Canada has expanded land-title rights for aboriginal communities. Indirectly, it has created yet another significant hurdle for Enbridge’s Northern Gateway pipeline, and other similar projects.

Speaking for the Court, Chief Justice Beverley McLachlin wrote that “the right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders…”.

Further, “if the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified” under the Constitution.

In concluding, the Court found that the appeal of the Tsilhqot’in would be allowed and declared “that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations”.

For the full text of the decision, simply click here.

By James Early