The Supreme Court of Canada (SCC) recently released its decision in R v Resolute Forest Products Canada Inc., 2019 SCC 60. In a 4-3 decision, the SCC overturned an Ontario Court of Appeal ruling to find that an indemnity extended from the Government of Ontario (“Ontario”) against claims relating to pollution did not cover a regulatory order to remediate contamination.
Businesses should appropriately tailor their environmental due diligence to effectively delineate the scope of an indemnity. Even if a business did not cause or contribute to an asset’s contamination, regulators and third-parties may still turn to the business under environmental law as the party with “charge, management, or control” over the contaminant.
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