Articles 2019

Greetings Environmental Law Section Members!

Despite its as-yet undetermined effect on the proposed Northern Gateway project, the Species at Risk Act is a positive development.

The harm to the Blanding’s turtles from the project was permitted under s.17 of the Ontario Endangered Species Act(ESA). The Tribunal found that the test under the Director’s Renewable Energy Approval was separate from that under the ESA.

Recently, nuisance has been the subject matter of a considerable amount of judicial treatment.

In a November 12, 2013 decision, the Environmental Review Tribunal said it would not overturn the approval of a large wind energy facility in southwestern Ontario that could potentially pose a threat to a pair of bald eagles nesting in the immediate vicinity.

This Nova Scotia class proceeding sought redress for the impacts of the pollution claimed to have been emitted from the Sydney Steel Works since 1967. While the decision of the Court of Appeal relied heavily on class proceedings precedent, it demonstrates the difficulty plaintiffs will have in overcoming the lack of common issues in many circumstances that may otherwise look desirable for an environmental class action.

The Court of Queen's Bench recently struck out significant portions of a negligence claim against Alberta's energy regulator, EnCana. The Court ruled EnCana did not owe her private duty of care, and cannot be held liable in negligence.

In a recent decision, the Supreme Court of Canada clarified section 15(1) of the Environmental Protection Act, where it is required that the MOE be notified forthwith when a contaminant that causes or is likely to cause an adverse effect is discharged into the environment.

A recent decision reinforces that courts are willing to order security for costs against environmental groups challenging development through judicial review.

The Abitibi decision and the recent decision in Nortel reveal the need for Parliament to clarify the statutory scheme to deal with historical environmental contamination in the insolvency context.