Canada: Environment @ Gowlings: October 20, 2010

Last Updated: October 26 2010

Edited by Harry Dahme

FEDERAL NEWS

  • Assessment of Batch 9 Substances Completed

PROVINCIAL NEWS

ONTARIO

  • Environmental Commissioner Releases Annual Report
  • Chief Drinking Water Inspector Releases Annual Report
  • Amendments Proposed to GHG Emissions Reporting Regulation
  • Consolidation of ODS Regulations Proposed

CASE COMMENT

  • Interpreting the Scope of Commercial General Liability Insurance Policies and the Duty to Defend Following the Supreme Court of Canada's Decision in Progressive Homes

COMMENTARY

  • Corporate Social Responsibility: What Every OHS Professional Needs to Know

What's Happening

FEDERAL NEWS

Assessment of Batch 9 Substances Completed

Final assessments of the substances in Batch 9 of the "Challenge" program under the Chemicals Management Plan have been completed.  Five of the substances have been proposed to be added to the List of Toxic Substances under the Canadian Environmental Protection Act, 1999, namely methyl eugenol, vanadium oxide, NDTHPM, TDGOPE, and Potassium bromate.  Methyl eugenol may be used as a flavour ingredient.  Vanadium oxide is used in the manufacture of high-strength steel.  Potassium bromate is used in industrial applications, including as an oxidizing agent.  NDTHPM is a dye and TGOPE is used in some epoxy resins and adhesive.  

Further information is available on the Chemicals Management Plan website.



PROVINCIAL NEWS

ONTARIO

Environmental Commissioner Releases Annual Report

On September 22, 2010, the Environmental Commissioner of Ontario, Gord Miller, released his annual report for 2009/10, entitled "Redefining Conservation".  Among the report's numerous recommendations is for the Ministry of Natural Resources to plant one billion trees in southern Ontario "to address the long-term ecological function of natural heritage systems and the impacts of climate change".  This is far more than MNR's current target to plant 50 million trees in the province by 2020.  The report also raises concerns about the tracking and oversight of the thousands of smaller landfills that were established before more rigorous regulatory requirements came into effect in 1998 when O. Reg. 232/98 (Landfilling Sites) was issued.  The report notes that "very little is known about these small landfills", some of which are still operational and some of which are closed.  These "forgotten polluters" present a risk to groundwater and surface water.  The report recommends that the Ministry of the Environment update Certificates of Approval for landfills. 

The report is available on the Commissioner's website



Chief Drinking Water Inspector Releases Annual Report

The Chief Drinking Water Inspector of Ontario released his Annual Report for 2008/09 on September 29, 2010.  In this period 99.87% of tests at municipal drinking water systems met provincial water quality standards.  The report notes that, as a result of the reforms implemented after the Walkerton Inquiry, Ontario is now "a world leader in drinking water protection."



Amendments Proposed to GHG Emissions Reporting Regulation

The MOE has proposed amendments to the Greenhouse Gas Emissions Reporting Regulation (O. Reg. 452/09) under the Environmental Protection Act.  The regulation, which was introduced last year, requires facilities emitting 25,000 tonnes per year of carbon dioxide equivalent to measure and report their emissions.  The proposed amendments would simplify the reporting requirements and harmonize them with those in other Western Climate Initiative ("WCI") provinces and states. 

Further information is available on the Environmental Registry.



Consolidation of ODS Regulations Proposed

The MOE has proposed replacing the five current regulations dealing with ozone-depleting substances – O. Reg. 356/90 (Ozone Depleting Substances – General); O. Reg. 189/94  (Refrigerants); O. Reg. 413/94 (Halon Fire Extinguishing Equipment); O. Reg. 717/94 (Solvents); and O. Reg. 718/94 (Sterilants) – with one single regulation, in order to streamline and simplify requirements.  At the same time, the requirements would be harmonized with the National Action Plan for the Environmental Control of Ozone-Depleting Substances and their Halocarbon Alternatives. 

Further information is available on the Environmental Registry.



CASE COMMENT

Interpreting the Scope of Commercial General Liability Insurance Policies and the Duty to Defend Following the Supreme Court of Canada's Decision in Progressive Homes

By Scott A. Smith

Introduction

The Supreme Court of Canada's decision in Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 SCC 33, which was rendered on September 23, 2010, has important consequences for the interpretation of the scope of commercial general liability ("CGL") insurance policies and the duty to defend claims for environmental liabilities.

In pollution related cases, insurers may attempt to rely on pollution liability exclusion clauses to deny that they owe insureds a duty to defend.

The SCC's discussion in Progressive Homes of the circumstances giving rise to the duty to defend and of the principles of interpretation that apply to construing insurance contracts will inform the assessment of if and when insurers owe insureds a duty to defend claims involving liability for damage caused by pollution.

Facts

Progressive Homes, the insured, was engaged as a general contractor to construct several housing complexes.  Four related claims were brought against Progressive for breach of contract and negligence.  The pleadings alleged that the condos were inadequately constructed.  The faulty construction was alleged to have resulted in significant water damage that caused rot, infestation, and deterioration of four buildings.  Progressive was covered under several CGL insurance policies by the insurer, Lombard.  The policies required Lombard to defend and indemnify Progressive when it was under a legal obligation to pay damages because of property damage caused by an occurrence or accident.  Lombard claimed that it did not have a duty to defend Progressive because the claims were not covered under the insurance policies.

Decision

The SCC held that Lombard owed a duty to defend the claims against Progressive.

The Duty to Defend

The SCC revisited the long-established principles that regulate the duty to defend.  The Court held that an insurer owes an insured a duty to defend a claim where the facts alleged in the pleadings, if proven to be true, fall within the scope of coverage provided by the policy (i.e. when the policy would require the insurer to indemnify the insured for the claim).  The mere possibility that a claim falls within the insurance policy is sufficient to trigger the duty.  In assessing whether a claim falls within the policy, the true nature or substance of the claim rather than the labels selected by the plaintiff will be determinative.  The pleadings and the insurance policy must therefore be examined to determine if the duty to defend applies.

The onus is on the insured to establish that the pleadings fall within the initial grant of coverage.  Once the insured has done so, the onus shifts to the insurer to show that coverage is precluded by an exclusion clause.

Interpreting the Scope of Liability Insurance

The SCC set out the principles that apply to interpreting insurance contracts.  The primary interpretive principle is that courts should read the contract as a whole and give effect to clear language.  When ambiguities arise, courts should prefer interpretations that are consistent with the reasonable expectations of the parties. When the rules of construction fail to resolve ambiguities, courts should apply the contra proferentem rule, which provides that the policy should be construed against the insurer.  One important corollary of the contra proferentem rule is that insurance coverage provisions should be interpreted broadly and exclusion clauses narrowly.

The SCC also interpreted the meaning of "Accident" as defined in the policy.  The first policy defined "Accident" to include:

continuous or repeated exposure to conditions which result in property damage neither expected nor intended from the standpoint of the Insured.

The Court held that the term "Accident" should be given the plain meaning defined in the policy, which should apply "when an event causes property damage neither expected nor intended by the insured."  This includes an accident that results from "continuous or repeated exposure to conditions". 

Application of the SCC's analysis in Progressive Homes in the context of environmental liability

The Court's discussion of the principles that apply to interpreting insurance contracts suggests that future courts will turn to the expectations of the parties to resolve ambiguities in the scope of pollution liability exclusion clauses.  This is consistent with the judicial trend since 1986 (following the introduction of absolute pollution exclusion clauses to CGL insurance policies) to narrow the range of claims that are excluded from coverage based on the "connotative contextual approach".  That approach assesses the parties' expectations to determine the extent of coverage. In the face of continued ambiguity, courts will construe the policy against the insurer by interpreting the initial grant of coverage broadly and by narrowly construing pollution liability exclusion clauses.

The scope of even broadly worded absolute pollution exclusion clauses may, therefore, be substantially narrowed by judicial interpretation.

The Court's interpretation of the meaning of the term "Accident" also has important ramifications for policies which contain environmental exclusion clauses covering "sudden and accidental" discharges.  Such clauses were commonly used from 1976-1985 to clarify that CGL policies only provided coverage if the discharge, dispersal, release or escape was "sudden and accidental".  In the absence of a clear definition to the contrary, the terms "sudden and accidental" may be construed broadly to include damage that results from continuous or repeated exposure to conditions that resulted from conduct that was not intended or expected to cause the alleged damage.  This interpretation is consistent with the "pro-coverage line of cases" where coverage has been extended to instances of gradual pollution and contamination, and where the phrase "sudden and accidental" is often equated with "unintended and unexpected".

Claims alleging that the insured's unintentional (i.e. negligent) conduct polluted the environment and caused the plaintiff damage may therefore be sufficient to trigger a duty to defend when CGL policies contain "sudden and accidental" exclusion clauses.

COMMENTARY

Corporate Social Responsibility: What Every OHS Professional Needs to Know

By Norm Keith

Over the past decade, there has been increasing interest in the concept of Corporate Social Responsibility ("CSR"), and the proposition that corporations should take into account the interests of stakeholders other than their shareholders.   Support for this idea has come not only from corporations themselves, but from national governments, extra-national organizations such as the United Nations, and non-governmental organizations.  As a result, recent years have seen legislative efforts to encourage or even mandate some form of CSR, with the reporting of CSR activities recently enshrined in Danish law, and proposed legislation in Canada which seeks to regulate the activities of Canadian mining companies in developing nations.  However, questions have arisen as to whether CSR advances a consistent set of interests and principles, and whether it effectively serves the societal interests it purports to advance.

CSR may be viewed as the principle that corporations should respond to interests apart from, and in addition to, those of their shareholders.  However, the definitions of CSR advanced by governments and international organizations have tended to focus on corporate efforts to balance their economic activities with broader stakeholder interests.  For example, the Government of Canada takes the position that "CSR is generally understood to be the way a company achieves a balance or integration of economic, environmental, and social imperatives while at the same time addressing shareholder and stakeholder expectations".  However, it also suggests that CSR is "an evolving term that does not have a standard definition or a fully recognized set of specific criteria".

Although a single definition for CSR may be elusive or even undesirable, clear themes emerge when one considers corporate efforts to behave in a socially responsible manner.  In particular, CSR activities appear to focus on four common ends: human rights, labour standards, safety standards and occupational health and safety, and issues relating to environmental responsibility.

It has been reported that the majority of companies currently publicly report their efforts on environmental and social issues, with approximately 90% of European companies and 59% of American companies including such information in their annual reports, or separate companion reports.  In Canada, such activities appear to have increased dramatically over the past decade, where the reporting rate for companies listed on the Toronto Stock Exchange was 35% in 2001, but had risen to 60% in 2003, and stands at 80% as of 2007.  Meanwhile, even critics of CSR note that it has "won the battle of ideas".  The impetus behind this dramatic rise in participation in CSR comes from several sources, including public demand, the activities of NGOs, government encouragement or legislation, as well as voluntary action stemming from a corporation's own business interests.

In Canada, growing public concern over the role of corporations led to the establishment of the Canadian Democracy and Corporate Accountability Commission ("CDCAC"), a privately funded body which studied how to encourage greater CSR on the part of Canadian corporations. CDCAC conducted public opinion polls, and found that "72% believe that corporate executives should take social-responsibility concerns (impacts on communities, employees, the environment, and charitable activity) into account in pursuing profits." In contrast, only 20% believed that the only responsibility of a corporation was to enhance its competitiveness and profits.

Concern over corporate activity amongst the general public is reflected in the establishment of NGOs to advocate particular policy positions.  These bodies have grown in number from the 1960's onwards, with some achieving considerable influence, including consultative status at the United Nations.  Many major international NGOs, including Greenpeace, the World Wildlife Federation, and Oxfam, have specifically targeted the corporate sector to encourage action in areas as diverse as human rights, the environment, labour, and other externalities, areas frequently advanced as a component of CSR.

Governments have responded to the public pressure regarding the effects of corporate conduct on both the environment and the community at large with both legislation and support for voluntary CSR initiatives.  These efforts may be illustrated by observing that a number of countries, including Canada, the United Kingdom, Germany, France, and the European Commission, have departments which have specifically undertaken considerations of CSR.

A number of studies have supported the argument that corporate involvement in CSR activities may serve to enhance profitability.  As early as 2001, the Financial Times noted that "Even on a sector-by-sector basis, shares of companies with a superior environmental or human rights record appear to outperform.  Clean chemical companies will outperform dirty ones, clean oil companies will outperform dirty oil companies".  Similar observations have been made in respect of the mutual funds industry, with socially responsible investing growing at a rate markedly faster than the industry as a whole.

These beliefs are reflected in the practice of Socially Responsible Investing ("SRI"), which has taken hold among some investors, and encourages the consideration of the "social and environmental consequences of investments".  In the United States, SRI has been observed to be growing at a faster rate than all other investment assets under professional management, with the total value of SRI assets estimated at $2.71 trillion in 2007.  Thus, the adoption of a corporate position on CSR may be seen in part as a response to shareholder demand.

The number of voluntary initiatives promoting compliance with numerous CSR standards has expanded in recent years so that they now number in the thousands.  As they are created without the need for a legislative process, such initiatives may be implemented more quickly than a legislative response.  As such, they may offer a means to address sudden or rapidly developing issues.  Further, as such standards are privately adopted and implemented, they do not require administrative or financial support from the government in order to operate.

The lack of a legislative process also provides a greater ability for voluntary initiatives to be tailored to the needs of the industries they are targeted at.   This stems in part form the fact that they may be drafted and implemented by the very corporations or industry groups they are ultimately intended to apply to.  In turn, this adaptability to corporate needs may encourage greater compliance, or more rapid adoption.  The process of drafting, adopting and implementing voluntary CSR programs may also encourage cultural changes within the corporation, promoting proactive actions by the management responsible for adopting the standard.

However, while voluntary initiatives thus have several advantages, they have been criticized, particularly with regard to their non-binding nature, which has led to questions regarding their effectiveness in practice.  In fact, a 2003 study by the Organization for Economic Cooperation and development has suggested that few voluntary initiatives in respect of the environment have resulted in improvements significantly above the outcome which might have been expected without them.

Several explanations may be offered for this lack of effectiveness.  First, due to their voluntary adoption, voluntary CSR initiatives inevitably fail to capture all industry members.  This problem may be particularly acute where those corporations which resist the adoption of voluntary standards are also those with the worst records in the field the standards address. Further, in the absence of effective enforcement measures, even those companies that do adopt a voluntary code may be able to disregard it where they are motivated to do so by other business interests.

Problems may also arise where voluntary standards are drafted by industry members and fail to adequately address the social or environmental concerns they are addressed to.  However, such an insufficient standard may still be used to create a show of action to garner public support, possibly all they were intended to do in the first place.  A particular damaging instance of this has been termed "regulatory capture", and occurs where the existence of voluntary standards are used to argue against the adoption of mandatory regulations or legislation.  In such cases, meaningful action may be prevented by ineffective voluntary actions.

While several organizations such the European Commission have defined CSR to encompass only voluntary initiatives, others, such as the government of Denmark, have passed legislation which mandates some minimum forms of CSR.  Legislative measures are also being contemplated in Canada, where the current Bill C-300 would regulate the behaviour of Canadian mining companies in developing countries.  Such mandatory initiatives, whether they arise from legislation or other sources, have a number of benefits which are missing in voluntary initiatives.

The clearest difference between mandatory CSR initiatives and voluntary initiatives is the enforceability of the former.   Where mandatory CSR requirements emerge from legislation, the specific mode of enforceability may be provided by that legislative document, and may include specific penalties which transgressors will be subject to, often through access to the courts.

The penalization of those who contravene mandatory CSR requirements might be expected to encourage higher levels of compliance with mandatory requirements.  For example, the threat of a sufficiently substantial monetary penalty would be expected to engage the self interest of the corporation so as to encourage it to proactively comply with the standard.  This ability may be particularly important in situations where it is necessary to force corporate compliance with a CSR standard that is unlikely to be adopted voluntarily.  Such situations may arise where the CSR initiative will require dramatic corporate outlays to achieve, or will require the drastic alteration of normal business practices to achieve a pressing social or environmental need. Further, as this enforceability applies equally to all corporate actors who are subject to the CSR requirement, mandatory requirements avoid to some extent the problem of the refusal of some corporations to sign on to voluntary initiatives.  

As in the United States, the corporate law of Canada has a tradition of shareholder primacy. However, it also has a greater tendency to recognize stakeholder interests to a greater degree through the regulatory actions of the Federal Government.  Exemplary of this is legislation which has recently been introduced in the Canadian Parliament, which if passed will specifically regulate the behaviour of corporations in the mining and gas industries when they operate in developing countries.

Bill C-300 would require the Ministers of Foreign Affairs and International Trade to issue guidelines to corporations involved in these sectors.  The Ministers would be empowered to investigate complaints that companies in that sector had violated the guidelines, and, if a complaint was found to be substantiated, to take action which would prevent that company from gaining access to government support from Export Development Canada for its foreign activities.

While a set of potential guidelines under Bill C-300 has not been released, the Bill specifies that they will incorporate the IFC's Policy on Social & Environmental Sustainability, the Performance Standards on Social & Environmental Sustainability, and the Environmental, Health and Safety General Guidelines.  As such they would include requirements to provide workers with a "safe and healthy work environment", and to mitigate the conversion or degradation of natural habitats.  By adopting standards initially adopted by another organization, Bill C-300 provides an example of the use of legislation to both expand the application of, and provide enforcement means for existing CSR standards.

Bill C-300 has received support from NGOs such as Amnesty International which declared that it both supported the Bill, and called for the Canadian government to "adopt stronger legal and policy frameworks to hold corporations to account for their abuse of human rights".  However, it is not possible to state whether the Bill will pass as currently drafted, will face amendments, or will die on the order table.

In conclusion, OHS professionals will undoubtedly have to become more familiar with CSR to integrate occupational health and safety initiatives, standards, and accountabilities with the broader mandate of many organizations.  Becoming familiar with the principles of CSR has been the purpose of this article.  The Bill C-300 discussion has yet to be fully resolved in Canada at a political level, however, in the author's opinion, this private member's Bill is just the first of many likely legislative initiatives that fall within the CSR mandate.  Therefore, a growing understanding of the principles of CSR, the drivers of CSR and the benefits of CSR is an important aspect of every OHS professional's growing responsibilities.

What's Happening

David Estrin, as Secretary of the International Bar Association Environment Committee, arranged and chaired a full day program on the topic of "Growing Demands for Home Country Environmental Liability for Mining & Oil Company Contamination in Host Countries – Case Studies and Options for Reform" at the October 2010 IBA Annual meeting in Vancouver.  The program examined issues such as:

  • Significance of environmental problems caused by foreign-based mining and petroleum companies.
  • Whether internal corporate environmental and social responsibility policies were sufficient.
  • Is meaningful host country access to justice not available to prevent, remediate and compensate for contamination by foreign-based resource companies?
  • Should foreign-based resource companies be legally required to meet their home country environmental standards in host countries and be legally liable under home country civil and criminals laws for host country contamination?
  • Is there a principled basis in international law and UN policies for imposing home country environmental standards on corporate citizens in their foreign activities, as well as in facilitating home country civil suits by host country claimants?
  • What are options for legal reforms and what should the IBA response be to these?

The International Who's Who of Environmental Lawyers 2010, and Who's Who Legal: Canada 2010 have identified Gowling Lafleur Henderson as "highly recommended" for its environmental practice and as receiving the most nominees in Canada for inclusion in these publications.  Six Gowlings environmental lawyers were listed, including Alan Blair, David Estrin, Mark Madras, Harry Dahme, Jennifer Danahy (née Mesquita) and Paul Granda.  We are delighted to report that the superlatives used by Who's Who in describing members of the group included "excellent", "very practical", "highly skilled" and "first-class".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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