The Continuing Discussion of Continuous Disclosure: The Influence of the CSA’s Recent Guidance on Environmental Reporting
By Michael Pickersgill and Michael Fortier
Corporations that are reporting issuers should consider whether they conform to a recent Canadian Securities Administrators Staff Notice that provides guidance on environmental reporting.
Members of the OBA Environmental Law Section and the Association of Consulting Engineers of Ontario have worked together to create a model consulting contract to assist you and your clients.
The author, who attended the recent climate change conference in Cancun as a delegate for the Canadian Bar Association, provides an insider’s perspective on the key events and outcomes of the conference.
Environmental Approvals and the Ministry’s Statement of Environmental Values
Case Comment: Moreau v. Director, Ministry of the Environment
By Joanna Rosengarten
A recent decision of the Environmental Review Tribunal considers whether the Ministry of the Environment had adequate regard to the precautionary principle and cumulative effects in issuing a certificate of approval to a Hamilton steelmaker.
With the plaintiffs in the Berendsen case discontinuing their appeal to the Supreme Court of Canada, the Ontario Court of Appeal decision remains binding law in Ontario, establishing important principles of liability in historic pollution cases.
Electricity Planning in Ontario and Other Canadian Jurisdictions
By Jonathan Myers
Ontario’s Long-Term Energy Plan sets the province’s energy priorities for the next twenty years. The author summarizes the plan’s key components and surveys developments in other Canadian jurisdictions.
Bugs N' Bunnies, Birds N' Bees: Ecological Risk Assessment for Everyone
By Rebekah Church
On March 2, the OBA Environmental Section continued its Passport Series of breakfast seminars with “Bugs N’ Bunnies, Birds N’ Bees: Ecological Risk Assessment for Everyone.” Chaired by Jonathan Myers of Torys LLP, the session focused on legal and scientific developments in ecological risk assessment, and used a number of case studies to illustrate common issues.
Environews is published by the Environmental Law Section of the Ontario Bar Association. Members are encouraged to submit articles. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves the readers of their responsibility to consider it in the light of their own professional skill and judgment.
Bed Bugs Raise Legal Issues That Could Bite the Unwary
By Julia Schatz* and Stephen N. Libin**
One of the most unexpected and notable issues of 2010 was the rapid re-emergence of bed bugs as a public health problem. Bed bugs are small oval-shaped insects approximately the size of an apple seed that cannot jump or fly. Most notoriously, they are known for biting human skin and leaving large, itchy skin welts1
In Toronto, bed bugs were being reported in apartments, hotels and even the Toronto Reference Library.2 Toronto’s fear of bed bugs reached its climax in September 2010 – just before the Toronto International Film Festival – when allegations were made of bed bugs in the Scotiabank movie theatre. These claims were later determined to be unfounded.3 Nevertheless, citizens were sufficiently concerned that Mike Colle, MPP for Eglinton-Lawrence (Toronto), held a bed bug summit at Queen's Park in September 2010.4
Toronto was not alone in facing a bed bug invasion. Major cities across North America have reported similar resurgences of the problem. This article examines the legal implications of bed bugs, as well as the legislative changes that may have lead to their resurgence.
Landlord and Tenant Issues
Although bed bugs can be found in any residence, legal issues arising from their presence are most often associated with rental housing, leading to legal complications between landlords and tenants.
The Residential Tenancies Act, 20065 requires landlords to be responsible for providing a rental unit that is ‘in a good state of repair’ and ‘fit for habitation’.6 Unsurprisingly, Canadian courts and tribunals have specifically held that premises infested with bed bugs are neither “in a good state of repair”7 nor “fit for habitation.”8
In a recent case in the Nova Scotia Small Claims Court,9 a tenant reported to her landlord that her unit was infested by bed bugs. Upon being notified, the landlord inspected all the other units on the tenant’s floor and on the floors above and below but did not locate any other instances of infestation. The landlord presented expert evidence at the trial to demonstrate that the bed bugs had been introduced to the unit by the tenant and they were not present before her tenancy. The tenant’s theory of the case, however, was that the landlord’s workmen had brought the bed bugs into the unit. Ultimately, the court determined that it could not be established on a balance of probabilities that the tenant was the cause of the bed bug infestation and, therefore, determined that the landlord was “wholly responsible for addressing the infestation in arranging the fumigation of the apartment.”10 The tenant was awarded a rent rebate for the length of time that the premises were infested and additional damages for her personal property losses and cleanup costs.11
The Residential Tenancies Act, 2006 also provides that a landlord is prohibited from substantially interfering with a tenant’s reasonable enjoyment of the rental unit.12 The Landlord and Tenant Board of Ontario has held that the presence of bed bugs in a rental unit constitutes a violation of this obligation.13
Although it is clear that tenants have the right to housing that is free of bed bugs, the courts and tribunals have generally restricted the tenant’s remedy to rent abatement and/or expenses incurred. The Alberta Court of Queen’s Bench has stated:
The problem ofbedbugs in residential tenancies is one which appears to be treated in the case law as a matter of degree. Case law may establish that where a landlord is making reasonable attempts to deal with the problem, although a tenant will be entitled to an abatement of rent and perhaps damages to compensate for the breach of the obligation of quiet possession, a tenant will not be able to terminate the tenancy. It may be that it is only in the most serious situations of infestation that cannot be dealt with relatively promptly or where the landlord refuses to act reasonably that bedbugs can provide a basis for the termination of a tenancy.14
The Ontario Landlord and Tenant Board has also stated that the termination of a tenancy should be reserved for only extreme situations. Interpretation Guideline #5, which addresses a landlord’s maintenance obligations, states:
The Member may also choose [to terminate the tenancy] if the condition of the unit is so poor as to threaten the safety of the tenants or threaten their well-being. However, ordinarily the landlord should have had a reasonable opportunity to rectify the situation before termination is ordered.15
Tenant’s rights with respect to bed bugs may be bolstered if Bill 94 is passed by the Legislative Assembly of Ontario. Bill 94,16 a private members bill, proposes to amend the Residential Tenancies Act, 2006 by requiring landlords to provide a report to prospective tenants before entering into a tenancy agreement that would provide details of any information that has come to the landlord's attention with respect to bed bugs in the rental unit or any other rental unit in the residential complex during the previous five-year period. Failure to comply with this requirement would be an offence subject to a maximum fine of $100,000 for a corporation.17
In summary, a tenant has the statutory right to a rental unit that is free from bed bugs. The failure of a landlord to provide such a unit is a failure to meet the standard of “good state of repair and fit for habitation” and will likely constitute an interference with the tenant’s right to reasonable enjoyment of the unit. In such circumstances, the tenant will be entitled to rent abatement and reasonable out-of-pocket expenses.
Disclosure of Bed Bugs in Agreements of Purchase and Sale
The issue of bed bugs has also arisen in the courts in matters involving the sale of property.
In Hurt v. Keroack,18 a 1943 decision of the Manitoba Court of Appeal, the plaintiff purchased a rooming house in Winnipeg from the defendant. During the negotiations, Mr. Keroack, in response to a specific inquiry, said that the premises were both clean and free of bed bugs. On that basis, Mr. Hurt purchased the property. When spring arrived, bed bugs appeared in swarms. The Court evaluated whether the absence of bed bugs was a precondition or a warranty and ultimately determined that this was a precondition of the sale. The court rescinded the agreement of purchase and sale on that basis.
While the decision in Hurt v. Keroack could be classified as a contract interpretation case, the non-disclosure of bed bugs has also been found to constitute fraud. In Perison v. Watson,19 a 1982 decision of the British Columbia Court of Appeal, the defendants were found liable in fraud for failing to disclose that a property they were selling to the plaintiffs was infested with bed bugs.
Negligence
Although the authors were not able to locate any reported bed bugs cases framed in negligence, it is conceivable that a plaintiff could argue that a hotel, motel, theatre, taxi, etc. ought to be liable for losses caused by the presence of bed bugs on the basis of negligence. Such an argument would require a plaintiff to demonstrate that:
The establishment or carrier owes its customers a duty to provide a clean, pest-free environment;
The presence of bed bugs in their establishment or vehicle is a breach of this duty; and
Losses are suffered (e.g., discomfort, inconvenience, clean up costs20)
It is inevitable that a claim founded in negligence would be subject to causation and remoteness defences given that bed bugs are known to “hitchhike” to new destinations. It would not be surprising, however, for a court to award damages to a plaintiff if the source of the bed bugs could be established on a balance of probabilities. Accordingly, it would be prudent for businesses and property owners who suspect that they may have a bed bug infestation to take the necessary steps to verify and, if confirmed, remove the pests from their property.
The Role of Pesticides Regulations
Several causes have been cited for the resurgence of bed bugs, including the increase in global travel and the development of species-specific toxins for particular pests. It has also been suggested that one cause of the bed bug outbreak has been the decision by governments to ban certain pesticides now known to be carcinogenic.21
As a result, treatment options for bed bug infestations are often limited to vacuuming and the application of extreme heat or cold. While other effective treatment methods exist, the cost and time required are significant. In addition, current treatment methods do not address the whole infestation problem, often leaving the eggs untouched.
There is clearly a need for a bed bug extermination product that is safe for humans and the environment. Innovation is encouraged by Canada's pest control products legislation by affording twelve years of protection to the data submitted to support a registration. This effectively grants innovators a monopoly in the market until the protection period lapses.22 While more affordable products will follow from generic manufacturers, the recent changes in the pest control product regime with the amendment of the Pest Control Products Regulations in June 201023 has made their entry into the market more difficult.
Conclusion
There is still minimal case law relating to bed bugs. Emerging case law will tell how parties will deal with causation and remoteness arguments in the landlord and tenant and negligence cases. Parties may wish to consider how to address the issue of bed bugs in both residential and commercial purchase scenarios to avoid litigation after closing.
* Julia E. Schatz is a partner at Bennett Jones LLP, (416) 777-4665,schatzj@bennettjones.com. ** Stephen N. Libin is an associate at Bennett Jones LLP, (416) 777-6248, libins@bennettjones.com.
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1 Government of Ontario, “Identify”, online www.bedbugsinfo.ca . 2 “Reference library fights bed bug problem” CityNews Toronto (July 16, 2010), http://www.citytv.com/toronto/citynews/life/health/article/81188--reference-library-fights-bed-bug-problem. 3 Michael Posner, “The tweet that sent TIFF into a bedbug frenzy” The Globe and Mail (August 31, 2010). 4 Mike Colle, “Recommendations and Strategies: Arising from the Bed Bug Summit at Queen’s Park”, 5 S.O. 2006, c. 17 (“RTA”). 6 RTA, s. 20(1). 7 ReTST-03117, 2010 CarswellOnt 6381, 2010 LNONLTB 13 at para. 4. 8 Opus 3 Investments Ltd. v. Scharne, 2009 NSSM 12 at para. 69 (N.S. Small Cl. Ct.); Hagan v. M. Bergen Ltd. (c.o.b. Edison Rental Agency) (1984), 28 Man. R. (2d) 271 (Co. Ct.) 9 2010 NSSM 5 (N.S. Small Cl. Ct.) 10 Ibid. at para. 25. 11 It should be noted that not every reported case of bed bugs sees the tenant seeking compensation from the landlord. In Martin v. Larsen (1943), [1944] 1 D.L.R. 303 (B.C.S.C.), a landlord successfully sued a former tenant after a subsequent tenant reported bed bugs in such a number as to make the residence uninhabitable. Given that no prior tenant had ever complained of bed bugs, the court applied the doctrine of res ipsa loquitur and held the former tenant liable for the cleaning costs. 12 RTA, s. 22. 13ReTST-03117, supra note 8 at para. 5. 14Boardwalk Rental Communities v. Ravine (2009), 2009 ABQB 534, 14 Alta. L.R. (5th) 322 at para. 21. 15 Online: <http://www.ltb.gov.on.ca/en/Law/116332.html>. 16 Bill 94, An Act to amend the Residential Tenancies Act, 2006 with respect to reporting bed bug information, 2nd Sess., 39th Leg., Ontario, 2010 (as carried on first reading on June 3, 2010). 17 RTA, s. 238(2). 18 [1943] 1 W.W.R. 715 (Man. C.A.) 19 (1982), [1983] B.C.W.L.D. 092 (B.C.C.A.). 20 Clean up costs could include the fumigation of the plaintiff’s residence if the bed bugs are transferred from the source. 21 Ian Robertson, "Banning pesticide caused bed bug boom” Toronto Sun (August 17, 2010); Ashley Csandy “FAQ about Bedbugs: Pesticide bans have led to a resurgence of the dreaded pest” National Post (August 7, 2010). 22 Pest Control Products Regulations, S.O.R./2006-124, s. 17.7. 23Regulations Amending the Pest Control Product Regulations, S.O.R./2010-119.
The Continuing Discussion of Continuous Disclosure: The Influence of the CSA’s Recent Guidance on Environmental Reporting
By Michael Pickersgill* and Michael Fortier**
Reporting issuers, especially those whose businesses involve material or potentially material environmental matters, should carefully consider CSA Staff Notice 51-333, Environmental Reporting Guidance1 (the Notice), which the Canadian Securities Administrators (CSA) published in 2010. As many reporting issuers prepare their annual information forms (AIFs) and other continuous disclosure in 2011, now may be the first time that they are considering the Notice in the context of their disclosure.
The Notice is one of a series of developments in the last few years that have sought to increase the amount and quality of environmental continuous disclosure (CD) in various jurisdictions, including Ontario. For example, in 2008, the Ontario Securities Commission (OSC) released the results of a review that identified a number of shortcomings in the CD of 35 reporting issuers in environmentally intensive industries.2 More recently, in response to a resolution of the Ontario Legislature, the OSC considered whether new CD requirements were needed for environmental matters. The OSC concluded in a 2009 report to the Minister of Finance that no new requirements were needed. However, the OSC indicated that, on the basis of its consultations and other work, it would prepare guidance on compliance with the existing CD requirements for environmental matters.3 After further consultations and study, the Notice4 was issued by the CSA.
The stated threefold “motivation” for the Notice’s guidance is that (1) issuers are increasingly recognizing the current and potential effects associated with environmental matters (as was highlighted by BP’s oil spill in the Gulf of Mexico); (2) the environmental regulatory landscape is constantly changing, which requires issuers to assess their CD in light of ongoing regulatory developments; and (3) investors are increasingly interested in how environmental matters affect issuers – an interest that has manifested itself in a number of ways, such as shareholder resolutions and disclosure surveys.5
The Notice provides that it “does not create any new legal requirements or modify existing ones” for reporting issuers; rather, it purportedly clarifies existing CD requirements.6 According to the Notice, its purpose is to assist reporting issuers (other than investment funds) in “(1) determining what information about environmental matters needs to be disclosed; and (2) enhancing or supplementing their disclosure regarding environmental matters, as necessary.”6 In practice, the Notice, along with other developments, will likely result in some reporting issuers assessing their environmental CD differently in 2011 than in the past. In addition, the examples of disclosure provided in the Notice will likely assist some issuers to improve their environmental CD.
Materiality
The Notice reaffirms that materiality is the determining factor in whether environmental information should be disclosed. The Notice also reaffirms that environmental information is likely to be material (to an issuer) if a reasonable investor’s decision whether or not to buy, sell or hold securities of the issuer is likely to be influenced or changed if the information was omitted or misstated.7
Given that some issuers have found determining materiality in the environmental context to be challenging, the Notice provides the following “guiding principles” as a non-exhaustive list of factors to be considered:
No bright-line test. There is no uniform quantitative threshold at which a particular type of information becomes material. Issuers should therefore consider both quantitative and qualitative factors in determining materiality. In other words, it is a judgment call based on all the relevant factors, including those mentioned below.
Context. Materiality requires assessing facts individually as well as cumulatively so issuers do not “lose sight of the forest for the trees” by considering the materiality of individual facts only in a piecemeal or reductionist manner.
Timing. Materiality determinations require an assessment of the prevailing relevant conditions and the effect of the passage of time on the impact of an environmental matter.
Trends, demands, commitments, events and uncertainties. As with other types of CD, the Notice indicates that materiality in cases of a known environmental trend, demand, commitment, event or uncertainty depends on an analysis of (1) the probability that one of these situations will occur; and (2) the anticipated magnitude of its effect. While the probability would seem (to the authors) to be based on the occurrence happening within a certain timeframe, interestingly, this time aspect is not expressly mentioned in the Notice’s discussion of this guiding principle.
Err on the side of materiality. The CSA encourages issuers to err on the side of materiality and if there is any doubt about whether particular information is material, to disclose it.8
Key Environmental Matters
The Notice identifies five key requirements in National Instrument 51-102, CD Obligations, which may, in appropriate circumstances, require disclosure of environmental matters:
environmental risks (to be disclosed in an issuer’s AIF pursuant to section 5.2 of NI 51-102F2)
trends and uncertainties (to be disclosed in an issuer’s Management’s Discussion & Analysis, or MD&A, pursuant to section 1.2 and 1.4(g) of NI 51-102F1)
environmental liabilities (to be disclosed in an issuer’s financial statements and discussed in MD&A)
asset retirement obligations (to be disclosed in an issuer’s financial statements and discussed in MD&A)
financial and operational effects of environmental protection requirements (to be disclosed in an issuer’s AIF under item 5.1(1)(k) of Form 51-102F2).
The Notice indicates that since each of these areas provides insight into an issuer’s environmental risk profile, each of these areas must be disclosed if it is material.9
Environmental Risk Oversight and Management
The Notice suggests that investors would like information to assess whether directors are appropriately focusing on risk management, including environmental risk management. The Notice indicates that disclosure of the following provide insight into an issuer’s environmental oversight and management: (1) environmental policies implemented by the issuer that are fundamental to its operations; and (2) how the board manages environmental risk.10
The Impact of International Financial Reporting Standards
For financial years beginning on or after January 1, 2011, reporting issuers are required to use the international financial reporting standards, rather than existing Canadian GAAP (generally accepted accounting principles). The Notice indicates that this changeover in accounting standards may require reporting issuers to accrue more environmental liabilities, at higher amounts, and provide more disclosure about these liabilities.11
Forward-looking Information Requirements Relating to Goals or Targets
The Notice reminds reporting issuers that disclosure of environmental goals or targets, if material, may be considered “forward-looking information” within the meaning of NI 51-102. Such disclosure may therefore be subject to the CD obligations applicable to forward-looking information.12
Governance Structures for Environmental CD
The Notice observes that an issuer’s environmental CD is subject to three levels of oversight: (1) review by the audit committee (in its review of the financial statements and MD&A); (2) approval by the board of directors; and (3) certification by the issuer’s chief executive officer and chief financial officer. To support these functions, the Notice indicates that directors and certifying officers must know that systems, procedures and controls have been implemented to gather reliable environmental information for management analysis and decision-making purposes and disclosure to investors, regulators and other stakeholders.13 Interestingly, the Notice notes, “Some issuers have invested significantly in establishing reliable measurement and reporting systems related to environmental information, but as yet many have not.”14
Examples of Environmental Disclosure
The Notice includes examples of environmental disclosure based on hypothetical facts. These examples are not intended to set a floor or ceiling for an issuer’s disclosure or to become boilerplate language, which the Notice generally discourages.
Discussion Likely to Continue
The Notice emphasizes and augments certain important concepts relating to environmental CD. It also represents another example of increasing focus by securities regulators on environmental disclosure. As a result, we expect increased attention to environmental disclosure in CD reviews by securities regulators in upcoming years.
* Michael Pickersgill is a partner at Torys LLP, (416) 865-8180, mpickersgill@torys.com. ** Michael Fortier is also a partner at Torys LLP, (416) 865-8147, mfortier@torys.com.
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1 Canadian Securities Administrators, 51-333_environmental-reporting.pdf>. 2 OSC Staff Notice 51-716 Environmental Reporting, 51-716_enviro-rpt.jsp>. 3 OSC Staff Notice 51-717 Corporate Governance and Environmental Reporting, /SecuritiesLaw_sn_20091218_51-717_corp-gov-enviro-disclosure.htm>. 4 Supra note 1 at 3-4. 5 Ibid. at 3. 6 Ibid. 7 Ibid. at 5. 8 Ibid. at 7. 9 Ibid. at 8. 10Ibid. at 16. 11Ibid. at 18. 12Ibid. at 20. 13Ibid. at 22-23. 14Ibid. at 23.
Members of our section are frequently consulted on disputes over the wording of contracts between environmental engineers and their clients. Some contracts are just badly drafted, so it’s hard to know what they mean. Others are clearly drafted, but don’t describe what the client was promised. Some deprive clients of virtually all meaningful remedies for shoddy work.
When a client hires a professional to do a highly important job, and pays for that job, they expect to be able to rely on the result. This is particularly important when large amounts of money are at stake. But under many engineering consulting contracts, the consequences of an engineer’s negligence fall almost entirely on the client.
One common problem is limitation of liability clauses. Many engineering firms limit their liability to the lesser of $25,000 or $50,000 or their fees, no matter how badly they perform. For many contaminated sites in the GTA, $50,000 is not a meaningful amount of money; it is rarely enough to complete the work that the client had already paid for.
Powerful clients, like banks and the federal government, simply won’t sign these sorts of contracts. But individuals and small to medium sized businesses often do. It creates injustice, and it creates litigation. Hiring an engineer is not simply a question of filling out a standard form. It involves a serious decision on the allocation of risk, which the parties should realize they are making.
For this reason, the Environmental Law Section Executive struck a committee of the Ontario Bar Association and the Association of Consulting Engineers to develop a model environmental consulting contract that lawyers, engineers, and their clients could use. As a result of a great deal of hard work over 18 months, we have reached general agreement on such a contract.
The model contract requires the parties to discuss and agree on critical risk allocation issues, such as limitations of liability, insurance, and the cost of extras such as surface treatment and restoration. If clients want extra liability protection, such as extra insurance or higher liability limits, they may have to pay a premium to get it. Any paragraph that is entitled “mutual indemnity” must actually be mutual, instead of the usual one-sided language.
The sample contract has now been reviewed and approved by the Ontario Bar Association, and is posted on the OBA website for use by any of our members.1 We have requested the Association of Consulting Engineers of Ontario to post it on their website as well. While there is no guarantee that any or all Ontario environmental engineering firms will agree to use this contract instead of their existing standard forms, we anticipate that the model contract will inform and facilitate discussions on appropriate contractual terms between engineers and their clients.
*Dianne Saxe is the principal of Dianne Saxe Professional Corporation, Barristers and Solicitors (the Saxe Law Office), (416) 962-5882 ext. 224, dsaxe@envirolaw.com.
The 16th Conference of Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC) and the 6th meeting of the members of the Kyoto Protocol took place in Cancun, Mexico, between November 29 and December 10, 2010. The writer attended the Conference as a delegate for the Canadian Bar Association. There were literally hundreds of presentations and caucuses in the Cancun area. The scope of this review will allow only a small snapshot of some of the more fascinating news from this event. With 16,000 delegates from 190 countries, the amount of material presented and available was staggering.
China, in conjunction with the UNFCCC, provided a summary of its impressive efforts at greenhouse gas (GHG) emission reductions. While China remains the number one emitter, its mitigation efforts are three times more aggressive than those of the USA. China’s handling of climate change should be a lesson to other countries on how to tackle this issue using a “top down” approach. China’s largest and most influential ministry – its Ministry of Commerce – is in charge of its climate change program, and its huge investments in renewable energy have garnered the nation 40% of the world’s photovoltaic and wind energy manufacturing industry. Five provinces and eight cities in China are now engaged in a carbon pilot project with a 45% reduction target in GHG emissions by 2020. It was reported that areas that did not reach their targets would simply have their electricity cut off. Given that the population of China’s cities alone will increase by 350 million over the next 20 years, the country’s level of effort at reducing GHGs was comforting.
The International Energy Agency (IEA) provided the Conference with its comprehensive data and projections.1 Today’s energy generation produces a global average of 500 grams of CO2 per kilowatt-hour. This will need to be reduced to 70 grams by 2050, if UNFCCC climate change targets (designed to limit climate change to 2.0-2.4 degrees Celsius above preindustrial levels, corresponding to GHG concentrations of 350-400 ppm) are to be met. While the days of cheap energy are definitely over (witness the feed-in tariffs under Ontario’s Green Energy Program), the IEA felt confident that 50% of the solution to GHG reductions could come from energy efficiency. To bring it in line with UNFCCC climate change targets, by 2030 the energy sector must reduce its reliance on fossil fuels to 23 percent, down from 60 percent today. Emissions from coal, which presently accounts for 73 percent of total emission in electricity sectors will have to be reduced by 90 percent, by 2050.
These seem like daunting goals. However, the growth of alternative energy industries is truly amazing. Climate change provides huge business opportunities for the future and yet Canada is in many ways failing to take advantage of this sector. For example, the Solar Energy Industries Association (SEIA), which represents thousands of companies in the United States, reports employment of 93,000 people in the solar industry at present. The solar industry grew by 100% last year, and has grown 50% annually over the last several years, so that jobs are expected to swell from 93,000 to 700,000 by 2020. The EU solar industry expects to employ 1 million people with good jobs by this time.
The Conference saw the long awaited presentation by UN Secretary General Ban Ki-Moon of his high level advisory group’s report on climate change financing.2 Given that the proposed level of funding for climate change is $100 billion annually, it is clear that the source of revenue will have to come from both private industry and government. Briefly, the report made it clear that this level is obtainable through mechanisms such as carbon taxes or carbon trading and the elimination of fossil fuel subsidies. Several other instruments were also studied in depth. This report will prove an invaluable tool for policy makers.
Carbon capture and storage technology, which is presently of great interest to Alberta, was generally considered a positive influence because the severity of the problem requires that any and all technologies that could reduce GHGs be employed.
A common theme throughout the Conference was the current suffering of many countries from drastic effects of climate change induced property or crop damage. Billions of dollars are needed for adaptive technologies to stave off widespread starvation, or to prevent some of the Pacific countries from simply receding into the ocean.
Technology was ever-present at the Conference, with Japan showing impressive results from the first year’s forest studies, provided by its new Gosat3 satellite. This invaluable tool measures carbon monoxide and methane concentrations from space, allowing accurate calculations of GHG emissions and absorptions.
Technological imperatives created some strange bedfellows: the Conference saw Greenpeace hosting a seminar to showcase the technological achievements of Microsoft and Google, which have developed innovative programs to diagnose and track GHG emissions and mitigation attempts.
The world’s expectations for outcomes from the Cancun conference were low. However, as the Conference drew to a close, the level of frustration and concern with the lack of a deal, and almost 20 years of negotiating, was palpable. Demonstrations in downtown Cancun were attended by thousands. Demonstrations on site by registered delegates resulted in their removal from the UN premises. As Friday December 10, 2010 grew to a close, the level of despair and frustration was evident. However, at 4:00 p.m. just as the conference was scheduled to end, COP16 President Espinosa tabled a proposal that had been the subject of debate and discussion between 50 countries over the previous 10 days. The discussions were open and transparent, unlike similar meetings in Copenhagen. The Conference seized upon the report and worked all night on it. At 4:00 a.m. on Saturday, December 11, 2010, after the conference was supposed to be over, the parties announced a series of adopted decisions known as the “Cancun Agreements.”
The conference was unanimous, with the exception of Bolivia, which had been adamant on many issues from the outset. The deal essentially commits the parties to $100 billion per year in long-term funding by 2020. The Agreements included mechanisms to expedite the transfer of money and technology to the most vulnerable countries for adaptation financing, a Green Climate Fund administered by the COP with representation from developed and developing countries, the Cancun Adaptation Framework to speed planning and implementation of adaptation projects in developing countries, and formal recognition of industrialized country emission targets under the multi-lateral process.
While the Agreement failed to set global targets for GHG reductions, it was a valuable experience in co-operation between countries of the world to solve the problem that all now realize can only be solved by the collaborative efforts of countries working together. While $100 billion per year sounds high, all of the attendees are well aware that the alternative costs of inaction would be far higher. Graphic examples presented day after day, by developing countries around the world, made it clear that the level of damage is staggering and will get progressively worse as climate change accelerates.
Due to the continued debate over data interpretation, reporting requirements and technical issues, a further Kyoto deal was not possible. This daunting task will await the parties in Durban in 2012, at COP17.
*Michael Hebert is a lawyer at Beament Green, (613) 241-3400, mhebert@beament.com.
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1 CO2 Emissions from Fuel Combustion, 2010 Edition. 2 Report of The Secretary General’s High Level Advisory Board on Climate Change Financing, November 5, 2010. 3 GOSAT Project, National Institute for Environmental Studies (online: www.gosat.nies.go.jp).
Environmental Approvals and the Ministry’s Statement of Environmental Values
Case Comment: Moreau v. Director, Ministry of the Environment
By Joanna Rosengarten*
Since the 2007 Environmental Review Tribunal (“ERT”) decision of Dawber v. Ontario,1 and the Divisional Court’s endorsement of this decision in 2008 by Lafarge v. Ontario2 (“Lafarge”), there has been concern and uncertainty in the regulated community regarding the right of third parties to appeal environmental approvals issued by the Ministry of the Environment (the “Ministry”).
In Lafarge, the Divisional Court agreed with the ERT in a number of its findings, including that, in issuing a certificate of approval for the use of waste materials as alternative fuels at a cement manufacturing facility, the Ministry Director had failed to apply an ecosystem approach and to consider the precautionary principle.
The Ministry’s Statement of Environmental Values (“SEV”) endorses an ecosystem approach, which includes an assessment of cumulative impacts, and directs the Ministry to exercise a precautionary approach. The Court in Lafarge referred to the Environmental Bill of Rights3 and the requirement that the Minister of the Environment take every reasonable step to ensure that the Ministry’s SEV be considered in decision making. In Lafarge, although the company’s application for the certificate of approval met all regulatory standards for the emission of contaminants, the Court agreed with the ERT that there was no evidence that the Minstry followed an ecosystem or precautionary approach. Leave to appeal was granted, partially on this basis.
As a result of the Lafarge decision, there has been uncertainty regarding the requirements for cumulative impact assessments and the application of a precautionary approach in the context of approval applications. The Ministry has not yet issued any guidance regarding what is required for cumulative impact assessments and how a company can demonstrate that a precautionary approach has been followed.
Recently, the ERT addressed another leave to appeal application made on the basis, in part, that a certificate of approval had been issued without consideration of cumulative effects and without applying a precautionary approach. In Moreau v. Director, Ministry of the Environment,4 the applicant Lorna Moreau applied for leave to appeal a certificate of approval issued to ArcelorMittal Dofasco Inc., which operates a steel-making facility in Hamilton. The certificate of approval replaced and revoked approximately 200 previous certificates of approval and authorized the restart of one of the facility’s blast furnaces. Ms. Moreau argued, inter alia, that the Ministry Director’s decision to issue the approval failed to place priority on preventing or minimizing the creation of pollutants, failed to properly consider cumulative effects, and failed to utilize a precautionary approach, all contrary to the Ministry’s SEV.
The ERT referred to previous cases, stating that the SEV “is one of the government policies developed to guide decisions” and that the Ministry Director must have regard to the SEV in making the decision to issue a certificate of approval.5 The applicant argued that the restart of the blast furnace would increase the concentration of certain emissions, contrary to the SEV’s stated priority of pollution prevention or minimization. On this ground, the ERT agreed with the instrument holder “that the SEV’s direction to give priority to pollution prevention does not prevent the Director from ever approving the start-up of a new facility or expansion of an existing facility on the ground that absolute levels of pollution will increase.”6 The ERT found that the Director and his staff considered pollution prevention and minimization before issuing the certificate of approval and determined that the applicant had led insufficient evidence to meet the leave to appeal test on this ground.7
With respect to cumulative effects and the precautionary approach, the applicant referred to the increase in emissions and pointed to the absence of a condition in the certificate requiring the instrument holder to consider cumulative effects despite the location of the facility in Hamilton, which the applicant submitted was a compromised airshed.8 The Director presented evidence showing that the ArcelorMittal’s certificate of approval application was considered in conjunction with applications made by neighbouring facilities, and that ambient air monitoring data from the neighbourhood surrounding the facility as well as from the Hamilton airshed was considered. The Director also submitted that the emission source dispersion modelling reports prepared by the instrument holder had used conservative maximum air emissions scenarios and were prepared using latest and most advanced air dispersion model.9 The ERT found that the applicant had not provided any evidence of a failure to consider cumulative effects; conversely, the evidence demonstrated that the Director had taken steps to consider cumulative effects to the extent of available information and that precautionary conditions (such as the requirement to notify the Ministry when air contaminants approach limits) were found in the certificate of approval.10 The ERT concluded that the applicant also failed to meet the leave to appeal test on these grounds.
The ERT’s decision in Moreau provides some guidance to the regulated community regarding cumulative effects and the precautionary approach. Undertaking emission dispersion modelling studies using the best available models and taking into account ambient air quality are factors that may be indicative of adequate cumulative effects assessments. Approval conditions requiring reporting of high air contaminant limits may be indicative of the Ministry heeding a precautionary approach. It appears that the Ministry is considering its SEV in making decisions on approval applications, and that it is documenting its efforts to do so. In Moreau, the Ministry also provided evidence that it is working at developing the scientific and technical tools to support comprehensive policy and guidance on cumulative effects.11
*Joanna Rosengarten is an associate at McCarthy Tétrault LLP, (416) 601-7556, jrosengarten@mccarthy.ca.
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1 Dawber v. Ontario (Director, Ministry of the Environment) (2007), 28 C.E.L.R. (3d) 281 (Ont. Env. Rev. Trib.). 2Lafarge v. Ontario (Environmental Review Tribunal) (2008), 36 C.E.L.R. (3d) 191. 3 1993, S.O. 1993, c. 28 4 Case No. 10-076, Ont. Environmental Review Tribunal (November 16, 2010) (“Moreau”). 5Ibid., at 10. 6Ibid., at 11. 7Ibid., at 12. 8Ibid., at 15. 9Ibid., at 16. 10Ibid., at 18. 11Ibid., at 17.
The Supreme Court of Canada website posted earlier this year that the Berendsen appeal (from the Ontario Court of Appeal) has been discontinued. A notice of discontinuance was filed by the Berendsens on January 24, 2011, just four days before the matter was to be argued before the court. The reason for the discontinuance, and the terms of any settlement, are confidential. As a result of the discontinuance, the Court of Appeal decision remains binding law in Ontario, establishing important principles of liability in historic pollution cases.
Seventeen years ago, the Berendsen family sued the Ontario government for negligently contaminating their Bruce County farm with asphalt road waste. The waste was buried there in the 1960s with the consent of the previous owner. The plaintiffs alleged that the ultra-trace levels of polyaromatic hydrocarbons (PAHs) emanating from the buried waste contaminated their well water and made it “unpalatable” to their dairy cows, impacting the health of the cows and halving their milk production. In 2008, the trial judge agreed, awarding the Berendsens $2.4 million in damages against Ontario.
In 2009, the Ontario Court of Appeal overturned the trial decision, confirming a number of important principles for negligence law generally, and historic pollution cases in particular.
In early 2010, the Berendsens were granted leave to appeal to the Supreme Court.
As a result of the discontinuance, the decision of the Court of Appeal, which ruled in favour of the Province of Ontario, stands unchallenged and remains binding law in Ontario. The court made critical rulings in three areas: causation, standard of care (foreseeability) and negligent inspection/failure to order remediation.
On causation, although the Court of Appeal did not find it necessary to reverse the trial decision on this issue, it was nevertheless highly critical of the trial decision, strongly suggesting that in historic pollution cases cause and effect cannot simply be assumed, but must be clearly proven with solid factual and expert evidence.
On standard of care, the Court of Appeal reinforced that the principle that foreseeability of harm is a crucial component of a breach of the standard of care. Thus, to establish liability for historic pollution based upon negligence, a plaintiff must prove that on the date the defendant deposited or discharged the contaminants it was reasonably foreseeable to the defendant that doing so would harm future owners such as the plaintiff.
On the subjects of negligent inspection and failure by the government to order remediation, the court noted that even where the Crown assumes a private law duty to investigate, as here, breach of that duty to investigate in no way implies a breach of a duty to remediate. Moreover, there can be no duty of care on the government to order remediation, because the power of the Ministry of the Environment to issue such orders “is discretionary, not mandatory.”
Electricity Planning in Ontario and Other Canadian Jurisdictions
By Jonathan Myers*
On February 17, 2011, the Minister of Energy directed the Ontario Power Authority (OPA) to prepare a new integrated power system plan (IPSP). It is anticipated that the OPA will file the new IPSP for review with the Ontario Energy Board (OEB) in late 2011 and the OEB has been directed by the Minister to complete its review within 12 months of the IPSP being filed.
The IPSP must be prepared by the OPA so as to meet the goals set out in the Minister’s Supply Mix Directive, which was also issued on February 17, 2011. The Supply Mix Directive gives effect to the plans set out in the Ontario government’s Long-Term Energy Plan (LTEP), which was released on November 23, 2010 and which sets out plans for Ontario’s electricity system over the next 20 years.
This article provides a summary of the LTEP, followed by brief review of recent developments in selected other Canadian jurisdictions, with a focus on renewable energy.
Background
Until the 1990s, virtually all of Ontario’s electricity was derived from hydroelectric, coal and nuclear sources. Most of Ontario’s hydroelectric generating stations were built between the early 1900s and 1950; its coal-fired generating stations were built during the 1950s and 1960s; and its nuclear generating stations were built between the 1970s and early 1990s.
With aging electricity infrastructure, a commitment to phasing out coal generation, and a growing interest in renewables, Ontario recognized the need for long-term planning in the electricity sector.
In 2007, the OPA filed for approval with the OEB a 20-year IPSP, which took stock of the expected lives of existing electricity assets and anticipated levels of electricity demand in order to propose a long-term electricity plan for Ontario. This included plans for conservation, renewable generation development, nuclear new build and refurbishment, natural gas-fired generation, shutting down all coal generating stations by 2014, as well as transmission development.
The OEB adjourned its review of the IPSP in 2008 in response to a directive issued by the Minister of Energy, which called for reconsideration of several aspects of the plan, most notably the planned levels of renewable generation. Ontario’s LTEP1 builds upon the work carried out for the IPSP and reflects the impacts of various initiatives that have been implemented since the IPSP was prepared, including the Feed-in Tariff (FIT) Program, which is spurring significant development of renewable energy. As noted, the February 17, 2011 Supply Mix Directive incorporates the objectives and targets set out in the LTEP and requires the OPA to develop a new IPSP to meet these objectives and targets.
The Long-Term Energy Plan
According to the LTEP, electricity demand in Ontario is expected to increase by 15% from approximately 146 terawatt hours (TWh) per year at present to approximately 165 TWh by 2030. Electricity planning needs to consider this growing level of forecast demand, together with anticipated levels of peak demand, which are the periods in each day and in each season where there is the highest level of electricity demand.
Planning also needs to consider such factors as transmission capacity, the intermittent nature of resources such as wind and solar, natural fluctuations in water available for hydroelectric generation and the need for “baseload” sources (which operate on a continuous “24/7” basis, such as nuclear and hydroelectric) to be taken off-line periodically for maintenance, inspection, repair or refurbishment activities, or for unplanned events and emergencies.
Ontario’s electricity system currently has a total supply capacity of roughly 35,000 megawatts (MW). Taking into account all of the factors described above, as well as the expected retirement of assets and the continued aging of infrastructure, the OPA anticipates that over 15,000 MW of electricity capacity will need to be renewed, replaced or added by 2030.
The total capital cost of implementing the entire LTEP, in 2010 dollars, is estimated to be $87 billion.
The following describes the key components of the plan.
Coal generation, which in 2010 represented 12% of total capacity and 8% of actual generation, is targeted for complete phase-out by 2014. Closure of the remaining six units of coal generation (at Nanticoke and Lambton generating stations) will be dependent on the availability of sufficient supply from other sources. The LTEP calls for Ontario Power Generation’s Atikokan generating station to be converted to biomass by 2013 and for its Thunder Bay generating station to have two units converted to natural gas by approximately 2014. Consideration will be given to gas conversion of additional units as well.
Nuclear generation, which in 2010 represented 31% of total capacity and 52% of actual generation, is targeted to supply nearly 50% of total generation in 2030. This will require roughly 12,000 MW of installed nuclear capacity. Although this reflects a consistent level of supply from nuclear sources, there are a number of significant projects needed to maintain this level of nuclear supply in Ontario. In particular, between 2010 and 2025, 10,000 MW of existing nuclear capacity, from units located at the Darlington and Bruce nuclear generating stations, will need to be refurbished in order to extend the lives of those assets. The remaining 2,000 MW of nuclear capacity will be provided through the development of new nuclear generation units at the Darlington site. Once the Ontario government determines that these new nuclear units can be procured in a cost-effective manner, the units will take approximately 10 years to be developed, constructed and brought online. In the meantime, the LTEP contemplates Ontario Power Generation making investments to allow its Pickering B nuclear generating station to operate until the new nuclear units are available without undergoing full refurbishment.
Hydroelectric generation, which in 2010 represented 22% of total capacity and 19% of actual generation, is targeted to supply 20% of total generation by 2030. To assist in reaching this target, the LTEP plans for an increase to the current level of hydroelectric capacity from approximately 8,100 MW in 2010 to approximately 9,000 MW by 2018. This will be achieved largely through completion of Ontario Power Generation’s Niagara Tunnel Project, Lower Mattagami Project and Upper Mattagami Project, as well as hydroelectric generation projects developed under the FIT Program. Other potential water resources will be considered, but are generally not economic in the short-term due to transmission costs, engineering and environmental factors associated with developing resources in remote, northern locations.
Other renewable generation (i.e. wind, solar and bioenergy), which in 2010 represented 5% of total capacity (4% wind, 0.3% solar and 0.7% bioenergy) and 3% of actual generation (2% wind and 1% bioenergy), is targeted to supply nearly 13% of total generation by 2030 (10% wind, 1.5% solar and 1.3% bioenergy). To achieve this target, the LTEP forecasts a total of 10,700 MW of renewable generation capacity (other than hydroelectric) by 2018. Under the FIT Program, the OPA has already signed contracts with developers representing 2,400 MW. Samsung, under a deal with the province, has committed to building 2,500 MW of wind and solar generation. In addition, the OPA estimates that 4,000 MW of renewable projects under the FIT Program will be able to proceed once Hydro One Networks completes construction of the Bruce to Milton transmission line. Other FIT projects will be able to come online as other planned transmission developments come into service. For beyond 2018, further opportunities will be considered based on expected levels of demand. Notably, tariffs under the FIT program are scheduled to be reviewed in 2011 and, based on commitments in the LTEP, decreases seem likely.
Natural gas generation, which in 2010 represented 25% of total capacity and 15% of actual generation (but 10% of actual generation in 2009), is targeted to supply 7% of total generation by 2030. In addition to a planned new plant for the Kitchener-Waterloo area, as noted above Ontario plans to convert certain coal units to natural gas. Natural gas plants offer flexibility to the system because they can be called upon on short notice to operate during peak periods, to supplement intermittent sources of supply such as wind and solar and to provide reliable capacity during planned or unplanned outages to baseload facilities such as nuclear generating stations.
Conservation measures are targeted to increase from 4,550 MW or 13 TWh per year in 2015 to 7,100 MW or 28 TWh per year by 2030. Key measures for achieving these targets are the implementation of time-of-use pricing, imposing license obligations on local electricity distribution companies for achieving conservation targets, supporting home energy audits, updating the building code, imposing higher standards for appliances and through demand-response programs to reduce electricity usage during periods of peak demand.
Transmission. The LTEP calls for significant investments to be made in Ontario’s electricity transmission system, including five priority projects over the next seven years. These projects, together with the Bruce to Milton line that is already under development by Hydro One, will enable the connection of significant renewable generation in various parts of the province. On February 17, 2011, the Minister of Energy directed the Ontario Energy Board to amend Hydro One’s Transmission Licence without a hearing so as to require Hydro One to immediately seek approvals for and to develop three of the five projects, all of which are located in southwestern Ontario. One of the projects will be the subject of the first-ever “designation proceeding” in Ontario, a public proceeding through which the Ontario Energy Board will select a proponent to develop the East-West Tie transmission project from competing proposals. A multi-party approach is being developed for the final priority transmission project.
Developments in Other Canadian Jurisdictions
In British Columbia, for 2012 the supply mix is forecasted to be hydroelectric (82.1%), biomass (10.8%), natural gas (5.6%), wind (1.1%), and heat recovery/biogas/diesel (0.4%). The province’s energy plan targets 90% of electricity coming from clean or renewable sources and to acquire 50% of incremental needs through conservation by 2020. In 2008, BC Hydro issued a Clean Power Call to procure renewable energy, which resulted in the awarding of 25 purchase agreements for a total of 1,168 MW of capacity made up primarily of hydroelectric and wind projects.2 British Columbia expects to have sufficient supply to meet expected levels of demand until 2016, after which shortfalls are expected. To address this need, the Ministry of Energy and BC Hydro are currently working to develop a FIT program, which builds upon a FIT consultation paper issued during 2010 and is targeted at small projects using emerging technologies.3 In addition, BC Hydro has a Standing Offer Program to encourage the development of renewable energy projects of up to 15 MW, along with specific other procurement initiatives directed at the pulp and paper sector and for biomass.
In Alberta, the supply mix is comprised of coal (45%) and natural gas (40%), with the remaining supply coming from hydro, wind, waste heat and biomass. Alberta has a competitive electricity market that generally allows any participant the opportunity to build new generation capacity if the developer believes their project will be economical. As of the end of 2010 there was roughly 800 MW of wind generation online in the province and it is expected that this will increase to over 1,300 MW by the end of 2011. However, the province’s electricity system operator indicates that currently the system can only accommodate up to 1,500 MW of wind generation due to the intermittent nature of wind resources and the impacts on the rest of the system. Efforts are underway to consider how to integrate higher levels of wind generation in the future.4
In Quebec, electricity is primarily generated from hydroelectric resources. The province also has some gas generation and one nuclear unit. Quebec is in the process of implementing a goal of having 4,000 MW of wind power on its system by 2015, which would represent 10% of its supply mix. A call for tenders by Hydro Quebec in 2003 resulted in contracts for 1,000 MW. A call for tenders in 2005 resulted in an additional 2,000 MW. A third call for tenders was issued by Hydro Quebec in 2009 for 500 MW and an additional 500 MW is expected to be procured in future.
In Nova Scotia, nearly 90% of electricity comes from fossil fuels (80% coal, 10% natural gas) and the remainder from hydroelectric, wind and tidal sources. The province recently enacted legislation that requires 25% of electricity to come from renewable sources by 2015 and has committed (though not by force of law) to having 40% of electricity come from renewable sources by 2020. A Renewable Electricity Plan was issued in April 2010 setting out how the province will achieve these targets.5 Based on 2009 year-end numbers, Nova Scotia needs 1,700 GWh of additional renewable energy by 2015 and a further 1,800 GWh by 2020. To achieve these targets, the plan calls for a minimum of 600 GWh of renewable power to come from “medium and large-scale” projects, half of which would be provided by Nova Scotia Power and half by independent power producers through competitive processes to be run by a new Renewable Electricity Administrator. In addition, the plan calls for a FIT program for small-scale projects by municipalities and communities, net metering to allow individual homeowners and businesses to install and connect renewable sources to the grid and the use of forest biomass. It is expected that the largest portion of renewable energy needed to meet the 2020 target will come from wind resources.
Jonathan Myers is an associate at Torys LLP, (416) 865-7532, jmyers@torys.com.
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1 Online: http://www.mei.gov.on.ca/en/pdf/MEI_LTEP_en.pdf. 2 See http://www.bchydro.com/planning_regulatory/acquiring_power/clean_power_call.html. 3 See http://www.bcefp.ca/userfiles/file/RAEI/J%20Larson%20(Ministry%20of%20Energy).pdf. 4 See http://www.aeso.ca/downloads/Wind_Integration_Discussion_Paper_-_Phase_Two.pdf. 5 See http://www.gov.ns.ca/energy/resources/EM/renewable/renewable-electricity-plan.pdf.
Bugs N' Bunnies, Birds N' Bees: Ecological Risk Assessment for Everyone
By Rebekah Church*
On March 2, the OBA Environmental Section continued its Passport Series of breakfast seminars with “Bugs N’ Bunnies, Birds N’ Bees: Ecological Risk Assessment for Everyone.” Chaired by Jonathan Myers of Torys LLP, the session focused on legal and scientific developments in ecological risk assessment, and used a number of case studies to illustrate common issues.
Janet Bobechko of Blaney McMurtry LLP began with a discussion of the basics of ecological risk assessment and an overview of the complex network of regulation at both the provincial and federal levels. She outlined the numerous pieces of legislation that call for ecological risk assessment, and noted that the requirements of the various statutes are distinct and occasionally conflicting. In order to navigate this complexity, she recommended that lawyers engage in in-depth conversations with their clients so that the risk assessment approach can be tailored to the applicable statutory requirements.
Jim Dougan, an ecologist and the principal of Dougan & Associates Ecological Consulting and Design, also addressed the web of regulatory requirements for ecological risk assessment, noting that for any given project, an average of four to six different pieces of legislation apply. He emphasized both the importance and difficulty of intertwining the requirements of these regimes to produce a consolidated study rather than a series of individual studies.
Mr. Dougan also discussed the importance of adequate field data and monitoring. Noting that this is often lacking, he stressed that thorough data collection and analysis is essential to producing a sound study. As a final caveat, Mr. Dougan commented that ecological science is not “black and white,” and that assessments will always depend on contextual factors.
Finally, Ulysses Klee, an ecotoxicologist and risk assessment specialist at Dillon Consulting, discussed the scientific challenges of conducting ecological risk assessments. Noting that the traditional focus has been on the risk to human health, he described the growing importance of ecological risks. The general paucity of usable ecological information has led to a great deal of uncertainty, and ultimately, to an overly conservative approach to assessing ecological risk.
Mr. Klee suggested that this uncertainty and conservatism can be counteracted by obtaining thorough site-specific data, rather than relying primarily on modeling. Site-specific data, including bioaccumulation, bioaccessibility and toxicity data, can validate predictions based on modeling and allow for more confident assessments.
The overarching lesson from this session was that ecological risk assessments are highly contextual, both legally and scientifically. Another common theme was that legal and scientific expertise is required on both sides – lawyers must have a good understanding of the scientific principles underlying ecological risk assessments, and consultants need to have a good grasp of the complex regulatory requirements that may be required under a number of different regimes.
* Rebekah Church is an articling student at Ecojustice Canada, (416) 368-7533, rchurch@ecojustice.ca
“Long overdue!” “A tremendous success!” That’s how participating lawyers, judges and students described the inaugural Willms & Shier Environmental Law Moot, held on February 19, 2011 at the Ontario Court of Appeal in Toronto.
Organized by Willms & Shier Environmental Lawyers LLP in partnership with Osgoode Hall Law School, the competition attracted eight teams of law students from across the country to argue one of the most fundamental and controversial issues in environmental law today – quantum of damages for contaminated land. The students argued the case of Cousins v. McColl-Frontenac Inc.,1 in which a property owner sought damages for remediation for the contamination of his land by a major oil company, but the court only awarded damages for diminished property value.
Students and coaches from across the country descended on the Court of Appeal to argue the case, having filed written arguments earlier in the year. Participating schools included Osgoode Hall Law School, Queen’s University, University of Ottawa, University of Toronto, Dalhousie University’s Schulich School of Law and University of Victoria.
Students raised a variety of arguments, including the restorative nature of damages, the role and valuation of stigma damages, the use of regulatory standards in a civil claim for remediation and the duty to mitigate damages.
The tournament was judged by leading environmental law practitioners and judges, who put students on the spot with difficult and insightful questions. The judges commented on the high level of advocacy displayed by students.
The championship match was argued by Queen’s University and the University of Toronto teams in a packed courtroom at historic Osgoode Hall. Fatefully, the courtroom used for the final match was the same courtroom where several years ago the Ontario Court of Appeal heard the Tridan case – a defining decision on environmental damages.2
The final teams argued before an illustrious panel of Justice Thomas Cromwell of the Supreme Court of Canada, Justices Michael Moldaver and Robert Armstrong of the Ontario Court of Appeal, Justice Katherine van Rensburg of the Ontario Superior Court of Justice and the former chair of the Ontario Environmental Review Tribunal, Toby Vigod.
Following the final match, a keynote address was given by Justice Cromwell, who congratulated the students on their excellent performance and imparted some advice about oral advocacy. Justice Cromwell also urged students to remember the importance of collegiality and respect.
Sean Miller, Stephen Ronan and Patrick Stratton of Queen’s University, coached by professor Bruce Pardy, took home the Willms & Shier Environmental Law Moot Championship trophy. Sean Miller also won the award for First Place Oralist. The University of Toronto and Dalhousie were the second and third place teams.
The award for Best Appellant’s Factum, named after the late Barry Nelson Spiegel (1951-2009) of Willms & Shier Environmental Lawyers LLP, was won by University of Toronto’s Joanna Kyriazis and Ryan Walker. The award for Best Respondent’s Factum, named after Osgoode professor and environmental law pioneer, D. Paul Emond, was won by Dalhousie University’s Leslie Bateman and Brigid Wilkinson.
Distinguished Oralist awards were presented to Julia Werneburg of the University of Ottawa, Leslie Bateman of Dalhousie University, and Sean Miller and Patrick Stratton, both of Queen’s University.
In the tournament’s spirit of innovation and sustainability, the Championship trophy and mini-awards were all one-of-a-kind creations made by a local Ontario artist from antique objects and hand-carved driftwood.
The tremendous success of the event was made possible by sponsors, volunteers and judges. Moot Co-chairs Marc McAree and Stepan Wood are already gearing up for the next event.
* Joanna Vince, (416) 862-4830, jvince@willmsshier.com is an a student-at-law and Marc McAree, (416) 862-4820, mmcaree@willmsshier.com is a partner, both at Willms & Shier Environmental Lawyers LLP. Stepan Wood, (416) 736-5036, swood@osgoode.yorku.ca is an associate professor at Osgoode Hall Law School.
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1 2006 NBQB 255 and 2006 NBQB 406, both aff’d 2007 NBCA 83. 2Tridan Developments Ltd. v. Shell Canada Products Ltd. (2002), 57 O.R. (3d) 503, 154 O.A.C. 1 (C.A.)
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