Tag Archives: pollution

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

Ontario’s Neonicotinoid Law To Remain In Place

CBC and Better Farming are reporting that the Ontario Superior Court has upheld a provincial regulation to dramatically reduce the number of acres planted with corn and soybean seeds coated with a class of pesticides known as neonicotinoids, which are toxic to bees.

The regulation had been under challenge by the Grain Farmers of Ontario and a decision on the application, which was heard on September 28, 2015, was reserved by the Ontario Supreme Court. It is understood that this may not be the last word on this matter and Grain Farmers of Ontario is “reviewing [its] legal options”.

According to the Ministry of Environment and Climate Change, the new provincial requirements are intended to support the government of Ontario’s target to reduce the number of acres planted with neonicotinoid-treated corn and soybean seed by 80 per cent by 2017.

Banning the use of neonicotinoids has been a hot topic for the environmental movement for the past couple of years. For example, both Environmental Defence, and the David Suzuki Foundation, have called for complete bans on neonicotinoid use on the basis of studies which have shown and link between neonicotinoid pesticide use and escalating honeybee colony losses.

The decision follows on the heels of a US decision in September, 2015 where a US court overturned federal approval for a new  neonicotinoid formulation called sulfoxaflor. In that decision, the US court found that the Environmental Protection Agency had relied on “flawed and limited” data, and its green light was unjustified given the “precariousness of bee populations”.

It is time for an outright ban, country-wide, in Canada.

James Early

Ontario’s Great Lakes Protection Act

Today, October 7, 2015, Ontario passed the Great Lakes Protection Act (the “Act“). The Act is designed to strengthen Ontario’s ability to keep the Great Lakes and St. Lawrence River clean, as well as to protect and restore the waterways that flow into them.

According to the provincial government’s news release, the Act enables the province to address significant environmental challenges to the Great Lakes, including climate change, harmful pollutants and algal blooms. The Act will also:

  • Establish a Great Lakes Guardians’ Council to provide a collaborative forum for discussing and gaining input on issues and priorities relating to the Great Lakes.
  • Allow the Ministry of the Environment and Climate Change to set environmental targets and enable communities to address local problems.
  • Require the establishment of monitoring programs on a number of water quality indices where needed, as well as regular public reporting.
  • Require consideration of Traditional Ecological Knowledge in decisions made about the health of the Great Lakes if offered by First Nations or Métis communities.
  • Enshrine Ontario’s Great Lakes Strategy the province’s action plan on the Great Lakes, as a living document to be reviewed every six years and reported in the legislature every three years.

This is extremely positive news given the declining health of the Great Lakes, particularly with regard to recent toxic algal blooms and the availability of clean drinking water for those people reliant on the Great Lakes’ fresh water supply.

According to Environmental Defence, who has championed this Act for a number of years, the Act will lead to:

  • Empowered communities through consultation and new opportunities for involvement;
  • Consideration of traditional ecological knowledge in research and decision-making;
  • Provincial commitment to meeting targets that will reduce or eliminate harmful pollutants and address algal blooms; and
  • Accountability, through improved monitoring and reporting.

The Great Lakes basin is home to 98 per cent of Ontario’s population, 95 per cent of its agricultural lands, 80 per cent of its power generation capacity and 75 per cent of Canada’s manufacturing sector. Additionally, Ontario has 10,000 kilometres of Great Lakes and St. Lawrence shoreline, the longest freshwater coastline in the world. This is reason enough to celebrate the passing of the Great Lakes Protection Act.

James Early

Duty to Report / Transfer of Responsibility: Saskatchewan’s new Environmental Legislation

Saskatchewan’s Environmental Management and Protection Act, 2010 (“EMPA 2010”) came in to force on June 1, 2015 and has a couple of new features of interest to those involved in the development and transfer of real estate.

First, the EMPA 2010 contains a duty to report a “discovery”. That duty attaches to: any person who discharges or allows the discharge of a substance that may cause, or is causing, an adverse effect; any person who owns or occupies lands on which a substance is discovered; any person who, while conducting work on the lands, discovers such a substance; and any police officer or employee of a municipality or government agency who is informed of, or investigates, a discharge or discovery of a substance.

This is a significant expansion of the scope of the duty to reporter from the EMPA’s predecessor legislation.

Second, responsibility for an environmentally impacted site may now be transferred by a person responsible to another person if:

(a) the other person has agreed to accept responsibility for the environmentally impacted site;

(b) a site assessment has been conducted;

(c) a corrective action plan has been prepared;

(d) an estimate of the costs to carry out the corrective action plan has been prepared;

(e) the other person has agreed to undertake the corrective action plan within the time frame contemplated in the corrective action plan; and

(f) the other person has provided the minister with a financial assurance in the amount and in the form acceptable to the minister equal to:

(i) the anticipated costs of reclaiming the site; and

(ii) an additional contingency amount.

As a result, when land transactions are being contemplated between parties in Saskatchewan, the parties should be cognizant of these new changes, and turn their minds to both the duty to report, and to determining whether there ought to be a transfer of responsibility for any environmentally impacted site.

James Early

The Person Aggrieved vs. The Busybody | Standing When Challenging Decisions

In 2014, the British Columbia Supreme Court was asked (in Gagne v British Columbia, 2014 CarswellBC 3312, 2014 BCSC 2077), once again, to rule on the issue of “standing”.

Standing, from the Latin locus standi, determines whether a person has the right to bring a legal action. That person has to be sufficiently effected or harmed by an action or law in order to bring an legal claim. That person should not, however, be a “busybody”.

First, some background. On April 23, 2013, the Director of the Northern Region of the B.C. Ministry of Environment (the “Director”), granted an amendment to a multi-media permit, which increased the allowable daily emission of sulphur dioxide from 27 tonnes per day to 42 tonnes per day from an aluminum smelter operated by Rio Tinto Alcan (“Rio Tinto”) in Kitimat, B.C. This amendment was authorized in connection with Rio Tinto’s modernization of its Kitimat smelter.

This amendment was challenged by six individuals, the Skeena Wild Conservation Trust (the “Trust”), and the Lakelse Watershed Stewards Society (the “Society”). Two residents of Kitimat, B.C., were granted standing by the Environmental Appeal Board (the “Board”). Of those denied standing, four (including the Trust and the Society) petitioned the British Columbia Supreme Court for an order directing the board to grant them standing.

Ultimately, the British Columbia Supreme Court set aside the Board’s decision and directed the Board to reconsider whether the petitioners were “persons aggrieved”.

The Court found:

– that there was no doubt that the amount of sulphur dioxide emitted into the atmosphere was subjectively of significant importance the petitioners, and indeed the public in general;

– that the Trust and the Society “cannot be summarily excluded from the possibility of being a person aggrieved on the basis that they are not persons”.

– the burden on an applicant when applying for standing must only involve demonstrating to a prima facie (“at first sight”) standard that they are a person aggrieved, not a “balance of probabilities”. Note: a prima facie standard is lower, and therefore easier to achieve, than a balance of probabilities.

– a person aggrieved must demonstrate some form of prejudice to their individual interest, albeit only on a prima facie basis.

In addition to its comments on “persons aggrieved” and the test for determining standing, the Court also determined that the Board must rigorously comply with its own procedure manual. It did so because it found that, following the conclusion of written submissions in relation to the standing hearing, the Board requested extra records from Rio Tinto in breach of its own procedural manual.

Despite the fact that it was evident that the Board and Rio Tinto had acted in good faith throughout the “standing” proceeding, the Board’s breach of its own procedural manual had seriously breached the petitioners’ right to procedural fairness.

Following on from this decision, the Board then reconsidered the petitioners’ application for standing. The Board first noted that the test to establish standing as a “person aggrieved” is:

– Whether the person has disclosed sufficient information to establish, objectively and on a prima facie basis, that the appealed decision prejudicially affects the person’s interests.

Regardless, however, the Board found that none of the petitioners were “persons aggrieved” and, ultimately, the petitioners efforts were all for naught. The common reason appears to be the Board’s determination that Rio Tinto had provided unchallenged information that, under the Permit amendment, the level of sulphur dioxide emissions was predicted not to exceed BC Provincial Pollution Control Objectives outside of Kitimat and that the petitioners were resident some distance away from Kitimat.

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

New Air Pollutant Regulations for Canada

Canada is to regulate industrial air pollutant emissions, according to the federal Minister of Environment. Taken from the Government of Canada website:

The Government of Canada is taking action to reduce industrial air emissions with the proposed Multi-Sector Air Pollutants Regulations (MSAPR). The regulations are a key part of the federal responsibility for implementing the new federal/provincial/territorial Air Quality Management System.

The MSAPR impose mandatory national performance standards on specific sector/equipment groups in order to establish consistent emissions limits for regulated industries across the country. The proposed regulations include requirements for stationary spark-ignition gas-fired engines, non-utility boilers and heaters, and the cement manufacturing sector.

Requirements for additional industrial sectors will be added to the regulations in the years ahead. Once fully implemented, industries will be required to reduce their emissions of nitrogen oxides (NOx), sulphur dioxide (SO2), volatile organic compounds, ammonia, and/or particular matter, which are all contributors to smog and increased health risks. Environment Canada estimates that there will be 3.4 megatonnes of greenhouse gas reductions between 2013 and 2035, as a co‑benefit to these regulations.

Stationary Spark-Ignition Engines
Stationary engines covered by the proposed regulations burn gaseous fuels and are typically used for gas compression in the upstream oil and gas sector (such as moving gas through pipelines), but can also be used for other purposes, such as back-up power generators for emergencies or in remote locations. These engines range in size from as small as the engine in a small car to as large as the engine found in a diesel-electric locomotive, and are a significant source of NOx emissions. In one hour of operation, an average-sized stationary spark-ignition engine emits as much NOx as an average light-duty vehicle does in almost 200,000 kilometres.

The proposed regulations would impose performance standards for both new and existing engines. The performance standards for new and existing engines are expected to reduce NOx emissions by about 1.8 megatonnes between 2013 and 2035, this is almost twice the amount of NOx that Canada’s entire mobile fleet—cars, trucks, planes, trains, tractors and other industrial equipment—emitted in 2011.

Non-utility boilers and heaters
Boilers covered by the proposed regulations burn gaseous fossil fuels, such as natural gas, to create hot water or steam for use in industrial processes and heating. Heaters directly heat the material being processed. In both boilers and heaters, the design of the burner is the most important determinant of NOx emissions intensity.

The proposed regulations would impose performance standards for both new and existing boilers and heaters. NOx emissions from regulated boilers and heaters are expected to be reduced by about 227,000 tonnes between 2013 to 2035. Using 2012 as the reference year, this is equivalent to eliminating an entire year’s worth of the NOx emissions from electric power generation, and commercial and residential fuel combustion.

Cement Manufacturing Sector
During cement manufacturing, the single greatest source of air pollutants of concern originates from the kiln. A kiln heats and processes limestone and other materials to produce an intermediate product called clinker. Clinker is then ground and combined with other materials to produce cement. The proposed regulations apply to all cement manufacturing facilities that produce clinker for the purpose of producing grey cement.

The proposed regulations would impose kiln-specific performance standards for NOx and SO2 per tonne of clinker produced. The proposed measures would impose performance standards starting in 2017. The cement sector produced a total of 16,000 tonnes of SO2 and 23,000 tonnes of NOx in 2011. The cement-sector standards are expected to reduce total SO2 and NOx emissions by 96,000 tonnes and 63,000 tonnes respectively between 2017 to 2035. For SO2, this is roughly the amount of sulphur dioxide in solid form that would fill 600 railcars, and 380 railcars for NOx.

Air Quality Management System
On October 11, 2012, the federal government, provincial and territorial governments agreed to begin implementing a new air quality management system (AQMS). The AQMS is a comprehensive approach for improving air quality in Canada and is the product of unprecedented collaboration by the federal, provincial and territorial governments and stakeholders. It includes:

– New Canadian Ambient Air Quality Standards (CAAQS) to set the bar for outdoor air quality management across the country (published in May 2013)

– Industrial emission requirements that set a base level of performance for major industries in Canada (first phase published in June 2014)

– A framework for air zone air management within provinces and territories that enables action tailored to specific sources of air emissions in a given area

– Regional airsheds that facilitate coordinated action where air pollution crosses a border
Improved intergovernmental collaboration to reduce emissions from the transportation sector

Following the announcement, the Globe Foundation pointed out that:

The new Multi-Sector Air Pollutants Regulations will not focus on the energy sector apart from capping emissions from Stationary Spark-Ignition Engines typically used for gas compression in the upstream oil and gas sector to move gas through pipelines, or as back-up power generators for emergencies or in remote locations.

The Multi-Sector Air Pollutants Regulations will be enabled pursuant to the Canadian Environmental Protection Act, 1999.

This is positive news for Canadians and our respiratory health, though much more needs to be done vis-a-vis the regulation of energy sector emissions generally.

By James Early