Tag Archives: sustainability

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 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

State of Caribou in Ontario

The Ontario government has released its State of the Woodland Caribou Resource Report 2014 on “five years of research, monitoring and assessment to promote the recovery of woodland caribou and support sustainable forest management”.

The forest-dwelling woodland caribou was listed as threatened under the Endangered Species Act (Ontario) in 2008. The report reviews the progress made towards the protection and recovery of caribou in Ontario, outlines the findings of the monitoring and assessment of caribou and caribou habitat, and identifies details and findings of its caribou research program.

In furtherance of the Caribou Conservation Plan, the Ontario government has invested over $11 million, and had researchers contribute to over 50 research projects on various topics including genetics, habitat use, diet and predation.

Time will tell whether enough was done to protect this iconic species.

James Early

 

Wind Power Gets Go-Ahead in Ontario

Yesterday the Ontario Superior Court of Justice dismissed the appeals of a group of residents who lived close to proposed wind turbines, paving the way for those turbines to be built: Dixon v Director, Ministry of the Environment, 2014 ONSC 7404 (CanLII).

The residents had argued that the turbines would cause serious harm to human health if constructed, and suggested that prior hearings before prior Tribunals were procedurally unfair.

A number of ‘grounds of appeal’ were argued, including suggestions that: the “harm” test contained in the Environmental Protection Act violated the Charter; the Tribunals erred in their treatment of the “post-wind turbine witnesses”;  the Tribunals erred in finding that they lacked jurisdiction to assess whether a Director’s decision, or the process in making a decision, is Charter compliant; and the Tribunals failed to follow the principles of fairness or natural justice. On each ground, the residents failed.

To view the decision in its entirety, click here.

James Early

 

 

Right to a healthy environment for Richmond, B.C., residents

The City of Richmond, B.C., has become the second municipality in Canada (after Montreal borough of Rosemont-La Petite-Patrie) to adopt a municipal declaration of an individual’s right to live in a healthy environment. The full text of the declaration is as follows:

City of Richmond Municipal Declaration
The Right To A Healthy Environment

Whereas the City of Richmond understands that people are part of the environment, and that a healthy environment is inextricably linked to the well‐being of our community;

The City of Richmond finds and declares that:

1. All people have the right to live in a healthy environment, including:

The right to breathe clean air.

The right to drink clean water.

The right to consume safe food.

The right to access nature.

The right to know about pollutants and contaminants released into the local environment.

The right to participate in decision‐making that will affect the environment.

2. The City of Richmond has the responsibility, within its jurisdiction, to respect, protect, fulfill and promote these rights.

3. The City of Richmond shall apply the precautionary principle: where threats of serious or irreversible damage to human health or the environment exist, the City of Richmond shall take cost effective measures to prevent the degradation of the environment and protect the health of its citizens. Lack of full scientific certainty shall not be viewed as sufficient reason for the MUNICIPALITY to postpone such measures

4. The City of Richmond shall apply full cost accounting: when evaluating reasonably foreseeable costs of proposed actions and alternatives, the City of Richmond will consider costs to human health and the environment.

5. By Dec 31st, 2015, the City of Richmond shall specify objectives, targets and timelines and actions the City of Richmond will take, within its jurisdiction, to fulfill residents’ right to a healthy environment, including priority actions to:

a. Ensure equitable distribution of environmental benefits and burdens within the municipality, preventing the development of pollution “hot spots”;

b. Ensure infrastructure and development projects protect the environment, including air quality;

c. Address climate change by reducing greenhouse gas emissions and implementing adaptation measures;

d. Responsibly increase density;

e. Prioritize walking, cycling and public transit as preferred modes of transportation;

f. Ensure adequate infrastructure for the provision of safe and accessible drinking water;

g. Promote the availability of safe foods;

h. Reduce solid waste and promote recycling and composting;

i. Establish and maintain accessible green spaces in all residential neighbourhoods.

The City of Richmond shall review the objectives, targets, timelines and actions every five (5) years, and evaluate progress towards fulfilling this declaration.

The City of Richmond shall consult with residents as part of this process.

This is part of a greater push across Canada for a change in the Canadian Charter of Rights and Freedoms to specifically recognize the right of all Canadian’s to live in a healthy environment. An in depth and comprehensive analysis of this issue was recently undertaken by Professor David R. Boyd in his book: The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment.

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

Public Feedback Requested on near-Urban Energy Development in Alberta

According to a media release from June 16, 2014, the Government of Alberta is inviting Albertans to provide input on issues relating to energy development in urban areas through an online forum.

The online feedback form is available until July 15 and will be supplemented by discussions with local stakeholders in Grande Prairie, Red Deer, Calgary, and Lethbridge between June 16 – 24.

The Province has not yet made any decision with respect to the South Saskatchewan Regional Plan and how the SS region’s land use might be governed over the coming years, but already it appears that continued development of energy close to urban centres in on the cards.

There are concerns about the draft SSRP and its failure to properly protect the environment in which we live. This energy development consultation provides Albertans yet another chance to voice their thoughts and concerns over Alberta’s environmental policy.

By James Early