Canada: Environment @ Gowlings – February 2007

Last Updated: March 2 2007

Edited by Jennifer Mesquita

Federal News

  • Virtual Elimination List Established
  • PBDE and PFOS Added to List of Toxic Substances
  • PBDE and PFOS Regulations Proposed
  • 2-Butoxyethanol Regulations Enacted
  • Rapid Screening of Substances of Low Ecological Concern
  • Proposed Assessment and Control of High Priority Substances
  • Proposed Significant New Activity Notices for 148 Substances
  • Preventing Mercury Releases from End-of-Life Vehicle Switches
  • Proposed Flexibility to Transfer Methyl Bromide Quotas
  • Proposed Residential Indoor Air Guideline for Moulds
  • Notice of Intent to Develop Renewable Fuel Regulation
  • Proposed Marine Spark-Ignition Engine and Off-Road Vehicle Emission Regulations

News From The Provinces

Alberta:

  • Dangerous Goods Transportation and Handling Regulation Extended

Ontario:

  • Diversion of Municipal Hazardous & Special Wastes from Landfill
  • Central Lake Ontario Conservation Authority Regulation
  • Safe Drinking Water Act, 2002

Québec:

  • Proposed fees under the Environmental Quality Act
  • Five-year Review of Drinking Water Quality Regulation
  • Bill 52: Québec's Energy Strategy

Court Cases:

  • Newmarket (Town) v. Halton Recycling Ltd.

What's Happening:

  • Katherine van Rensburg appointed to the Ontario Superior Court of Justice
  • Johanne Mainville appointed to the Québec Superior Court
  • Gowlings launches "Webinar" Series Comparing US and Canadian Environmental Legislation
  • Upcoming: North American Real Estate Issues - Perspectives from the U.S. and Canada, Feb. 22, 2007 (Webinar)
  • Upcoming: Introduction to Environmental Law and Due Diligence - February 28, 2007 (Toronto) and March 15, 2007 (Kitchener)

FEDERAL NEWS

Virtual Elimination List Established

In December 2006, the first substance was added to Canada's Virtual Elimination List, created pursuant to section 65(2) of the Canadian Environmental Protection Act, 1999 ("CEPA, 1999"). The goal of the Virtual Elimination List is to ensure that releases of the listed substances are reduced until they are no longer detectable in the environment, above a specified detection threshold.

To be proposed for virtual elimination, a substance must be assessed as toxic under CEPA, 1999, meet criteria for persistence and bioaccumulation, be entering the environment primarily as a result of human activity, and not be a naturally occurring inorganic substance or radionuclide. Once a substance is added to the Virtual Elimination List, the Minister of the Environment may propose release limits by way of regulation, and require the preparation of Virtual Elimination Plans by persons using or releasing the substance.

The first substance on the list is hexachlorobutadiene or HCBD, at a level of quantification of 0.06 ng/mL in chlorinated solvents. HCBD is not currently produced or imported as a pure chemical into Canada, and occurs only as a contaminant in imported chlorinated solvents. Rather than imposing release limits by regulation, Environment Canada will add HCBD to the Prohibition of Certain Toxic Substances Regulations, 2005, to ensure that HCBD is not manufactured, sold, imported or used in Canada in the future. In addition, HCBD releases will be reduced by regulations targeting the chlorinated solvents tetrachloroethylene and trichloroethylene under the Dry Cleaning Regulations. Environment Canada will also track the volume of chlorinated solvents imported into Canada, along with HCBD levels, and reassess risk management measures as required in the future. See http://canadagazette.gc.ca/partII/2006/20061213/pdf/g2-14025.pdf at page 1995 for more details.

PBDE And PFOS Added To List Of Toxic Substances

In December, polybrominated diphenyl ethers ("PBDE") and perflurooctane sulfonate, its salts and precursors ("PFOS") were added to the List of Toxic Substances. Three types of PBDE also met the criteria for virtual elimination and were proposed for addition to the Virtual Elimination List. While persistent, PFOS do not meet numeric bioaccumulation criteria and were not proposed for virtual elimination.

PBDE and PFOS are not manufactured in Canada. PBDE are imported within finished products such as computer casings, automotive and aircraft seats and electric and electronic components. PFOS are imported as chemicals or products from the US. PFOS are used to treat rugs, fabric and upholstery to repel water, oil, and grease are contained in fire-fighting foams, carpet spot removers, and hydraulic fluids, and are used as mining surfactants. See http://canadagazette.gc.ca/partII/2006/20061227/pdf/g2-14026.pdf at page 2147.

PBDE And PFOS Regulations Proposed

Subsequent to the addition of PBDEs to the List of Toxic Substances, Environment Canada proposed regulations to prohibit the manufacture of all types of PBDEs, except those regulated under the Pest Control Products Act or used for scientific research. The proposed regulations would also prohibit the use, sale, and import of three types of PBDEs that meet the criteria for virtual elimination: tetraBDE, pentaBDE, hexaBDE and certain related mixtures, polymers and resins. The commercial mixtures PentaBDE, OctaBDE and DecaBDE, previously used in foam products manufacturing and custom compounding of resins, have now been voluntarily phased-out of use in Canada. As such, the proposed regulations would simply prevent the re-introduction of these substances into Canada.

Regulations are also proposed in relation to PFOS that would prohibit the manufacture, use, sale, or import of PFOS or products containing PFOS. Four time-limited exemptions from the prohibition are recommended. The first is a five-year exemption for PFOS-based firefighting foam. The second is a five-year exemption for fume-suppressant uses in relation to chromium electroplating, anodizing, and reverse etching. Finally there are proposed exemptions for the sale and use of manufactured items produced or imported before the regulations come into force, and for specific manufactured items on an ongoing basis, including: semiconductors, photographic films, papers and printing plates. See http://canadagazette.gc.ca/partI/2006/20061216/pdf/g1-14050.pdf for further details on both draft regulations.

2-Butoxyethanol Regulations Enacted

The 2-Butoxyethanol Regulations, SOR/2006-347 ("2-BE Regulations"), came into force in December 2006. The 2-BE Regulations are designed to limit exposure to 2-Butoxyethanol, a category of glycol ethers, in products designed to be used indoors by consumers or in areas with potential public exposure. The 2-BE Regulations set out maximum concentration limits for products including automobile cleaners, rug and carpet cleaners, floor and baseboard strippers, paint strippers and thinners, laundry stain removers, cleaners, paints and coatings. The concentration limits come into force in December 2007 for manufacture and import, and December 2008 for the sale of offer of sale of products containing 2-BE.

Exemptions are available through 24-month permits, renewable once, if applicants can demonstrate that it is not technically possible or economically feasible to reduce the concentrations to the limits set out in the regulation within the schedule proposed. After a permit expires, applicants will have a grace period of one year to sell products for which they had requested the exemption. Commercial uses of 2-BE are already subject to limits through an Environmental Performance Agreement, signed in the fall of 2006 with all suppliers of commercial paints and coatings containing 2-BE. Applications related to pesticide products will be regulated under the Pest Control Products Act. See http://canadagazette.gc.ca/partII/2006/20061227/pdf/g2-14026.pdf at page 2224 for details.

Rapid Screening Of Substances Of Low Ecological Concern

By September 2006, the Ministers of the Environment and Health had completed their initial categorization of the 23,000 substances on the Domestic Substances List. Those substances identified as potentially persistent or bioaccumulative, and inherently toxic, will next have to be screened in order to assess their toxicity under CEPA, 1999. Section 64 defines "toxic" as a substance that is entering, or may enter, the environment at quantities, concentrations or under conditions may have immediate or long-term harmful effects on the environment or biological diversity, or that may constitute a danger to the environment, human life or health.

Environment Canada has developed a "rapid screening" method which will be used to conduct the toxicity analysis for substances believed to be of lower ecological concern. The draft results of this rapid screening should be available for review by March 2007. For more information see http://canadagazette.gc.ca/partI/2006/20061209/pdf/g1-14049.pdf at page. 4076.

Proposed Assessment & Control Of High Priority Substances

Approximately 4,300 of the substances on Domestic Substances List were identified as requiring further assessment, following initial screening. Of those substances, 200 were identified as being of the highest priority, due to persistence, bioaccumulation, a high risk of exposure for Canadians and a "high hazard" categorization.

In order to complete the information base in relation to these substances, and to determine appropriate regulatory controls, Environment and Health Canada will be tackling these substances 15 at a time, each three months, over the course of the next three years. A list of the 15 target substances will be released, together with a summary of scientific information and uncertainty in relation to each, and a request for submission of information required for decision-making purposes. Stakeholders will be asked to submit, within six months of the request by Health and Environment Canada, information upon which regulatory decisions will be based, ranging from best practices and product stewardship, through to virtual elimination.

If no information is submitted by stakeholders, then within 90 days of the close of the 6-month submission period, Environment Canada will publish the screening assessment, a proposal to add the substances to the List of Toxic Substances, and where applicable to the Virtual Elimination List. If information is submitted by stakeholders, then publication will take place within 6 months of the close of the submission period, and will include the screening assessment, the information received, and the proposal for risk management. For any given substance, it could take from nine months to year from original notification before proposed regulatory measures are published for comment. For further information see http://canadagazette.gc.ca/partI/2006/20061209/pdf/g1-14049.pdf at page 4109.

Proposed Significant New Activity Notices For 148 Substances

Environment Canada issued draft screening assessments in December 2006 for 148 of the substances on the Domestic Substances List. These substances meet persistence and bioaccumulation criteria, and are inherently toxic to non-human organisms. However, they are not being imported or manufactured above the reporting threshold of 100 kg per year, resulting in a low likelihood of exposure for Canadians, and failure to meet the criteria for toxicity under CEPA, 1999.

In order to ensure that new manufacturing or import uses are not developed in the future without prior notification and assessment by Environment Canada, the Significant New Activity provisions of CEPA, 1999 will be applied. Environment Canada's proposal would require any any applicant wishing to use >100kg in a single calendar year to notify Environment Canada and submit specific information for assessment and approval, at least 90 days prior to the import or manufacturing.

A list of the affected substances, along with the screening assessment reports, may be obtained at www.ec.gc.ca/CEPARegistry/subs_list/assessments.cfm.

Preventing Mercury Releases From End-Of-Life Vehicle Switches

The Minister of the Environment is proposing to publish a Notice requiring the preparation and implementation of Pollution Prevention Plans relating to the release of mercury from switches in end-of-life vehicles processed by steel mills. Mercury is considered a "toxic" substance under CEPA 1999.

The Notice would affect vehicle manufacturers who have used mercury-containing switches in lights and brakes in the past, vehicle recyclers who dismantle, crush, shred, bale or recycle six or more vehicles per year, and the steel mills to which these vehicles are sent for processing. Vehicle manufacturers would be required to participate for at least 15 years from the date of production of the last model year containing mercury switches; steel mills would be required to participate until December 31, 2017.

The Pollution Prevention Plans would be required to track and divert mercury-containing switches from end-of-life vehicles destined for processing at steel mills. Environment Canada has proposed a goal of 90% diversion, within four years. Public reporting on achievements and benchmarks, and the provision of guidance and funding to vehicle recyclers are also proposed, along with an evaluation of the fate of the mercury diverted from the processing stream. Plans would be prepared within six months of publication of the final notice, and fully implemented within four years. See http://canadagazette.gc.ca/partI/2006/20061209/pdf/g1-14049.pdf, at page 4079.

Proposed Flexibility To Transfer Methyl Bromide Quotas

Environment Canada is proposing to amend the Ozone Depleting Substances Regulation, 1998 in order to permit the transfer of methyl bromide quotas among holders of a critical or emergency use exemption permits. Methyl bromide is used as a fumigant in agricultural and food processing facilities, and is an ozone-depleting substance. There are currently 60 tonnes imported into Canada annually.

Since January 1, 2005, the manufacture or import of methyl bromide has been prohibited, apart from specific uses which are exempt by way of permits, valid for two years, for up to 20 tonnes per applicant. Applications must be approved in advance both by Environment Canada and by an international committee of experts at the United Nations Environment Programme.

The proposed changes are intended to permit critical use exemption permit holders, who have unused quotas of methyl bromide, to exchange it with other holders of critical use exemption permits. Environment Canada would still have to be notified of the use, and would monitor the use of methyl bromide and the phase-in of alternatives. See http://canadagazette.gc.ca/partI/2006/20061209/pdf/g1-14049.pdf at page 4025.

Proposed Residential Indoor Air Quality Guideline For Moulds

The Minister of Health proposes to issue a Residential Indoor Air Quality Guideline in relation to mould, under the authority of section 55(3) of CEPA 1999. Moulds are fungi that can, under the correct temperature and moisture conditions, grow on building materials within residential settings. Moulds pose a potential health risk due to allergenic and inflammatory properties, and in relation to certain species of moulds, toxic properties.

The proposed guideline recommends the control of humidity and the "diligent repair" of water damage in residences, to control mould growth. It also recommends thorough cleaning of any mould growing in residential buildings. It should be noted that the proposed Guideline applies regardless of the species of mould growing in the building, and that the Minister's advice is that the results of tests for the presence of fungi in air cannot be used to assess health risk to occupants. No guidance is proposed in the current notice in relation to the appropriate remedial techniques to be used for mould removal.

Public comments may be submitted until February 23, 3007 in relation to the notice. See http://canadagazette.gc.ca/partI/2006/20061223/pdf/g1-14051.pdf at page 4330.

Notice Of Intent To Develop Renewable Fuel Regulation

On December 30, 2006, Environment Canada published a notice of its intention to develop a regulation requiring renewable fuel content in fuels. The notice set out general principles to be used to guide the development of a draft regulation, which is expected in late 2008.

The proposed regulation would cover a broad spectrum of fuels, including gasoline, diesel fuel and heating oil. Starting in 2010, the regulation would set an annual renewable fuel content target of 5%, applied only to producers and importers. The target would be measured across the total pool of fuels imported or produced by a given company, and would not require 5% renewable content in any given litre of fuel. Nor would the regulation set renewable fuel quality standards, either for the renewable fuel content or for the blended fuel. A target of 2% renewable fuel content is proposed for diesel, if feasibility criteria are met.

Noteworthy potential elements of the regulation include the potential to include a credit and trade system within the industry, weighted biases towards specific types of biofuels within the credit system such that cellulosic ethanol might be valued more highly than corn ethanol, for example, and the potential to allow regulated companies to miss targets one year and play catch-up the following year. See http://canadagazette.gc.ca/partI/2006/20061230/pdf/g1-14052.pdf, at page 4526.

Proposed Marine Spark-Engine And Off-Road Vehicle Emission Regulations

Environment Canada is proposing to enact the Marine Spark-Ignition Engine and Off-Road Recreational Vehicle Emissions Regulations to set standards for smog-forming emissions from outboard motors, personal watercraft and off-road recreational vehicles. Off-road vehicles covered include snowmobiles, off-road motorcycles, all-terrain vehicles, and utility vehicles. The regulations would apply to engines and vehicles manufactured after January 1, 2008.

The regulations propose alignment with U.S. Environmental Protection Agency requirements, and could be complied with in one of three ways: by directly meeting the applicable standard, by holding a certificate of conformity from the EPA for products sold concurrently in the U.S. and Canada, or by achieving "family" emissions limits averaged across a company's fleet of marine engines or off-road vehicles.

Initial deficits within any given fleet in meeting emissions standards for 2008 could be offset before 2010 and 2011 for marine engines and off-road vehicles, respectively. Emission credits for outboard motor and watercraft fleets could be used up to three years after their creation. Emission credits for off-road vehicles would not expire. For more information see http://canadagazette.gc.ca/partI/2006/20061230/pdf/g1-14052.pdf at page 4553.

NEWS FROM THE PROVINCES

ALBERTA:

Dangerous Goods Transportation And Handling Regulation Extended

The Dangerous Goods Transportation and Handling Regulation will continue in force until December 31, 2011, following amendment by Alta. Reg. 280/2006. The regulation would otherwise have expired on December 31, 2006.

ONTARIO:

Diversion Of Municipal Hazardous & Special Wastes From Landfill

With the filing of O. Reg. 542/06, Municipal Hazardous or Special Wastes Regulation, Ontario's Minister of the Environment has designated the next category of wastes to be targeted for diversion from landfill in Ontario. The two principal categories of designated wastes are "municipal special" and "municipal hazardous". A draft diversion programme for eight of the designated wastes within these categories must be submitted to the Minister by May 31, 2007.

"Municipal hazardous" wastes include corrosive, flammable and toxic products, hazards and containers as defined by the federal Consumer Chemicals and Containers Regulations, 2001, along with corrosive, ignitable, leachate toxic and reactive wastes and their containers, as defined by Ontario's O. Reg. 347 (General - Waste Management). "Municipal special" wastes includes a wide variety of wastes, including: batteries, pressurized containers, portable fire extinguishers, fertilizers, fungicides, herbicides, insecticides or pesticides, paints and coatings, oil filters, fluorescent light bulbs and tubes, pharmaceuticals, sharps and syringes, switches containing mercury, thermostats, thermometers, barometers and other devices containing mercury, antifreeze, solvents, alcohol and the containers in which the foregoing were contained. It should be noted that lubricating oil containers and oil filters had previously been designated under O. Reg. 85/03, Used Oil Material Regulation.

Despite the term "municipal", the waste need not be owned, controlled or managed by a municipality to be included in the waste diversion program. The Minister's target is both residential waste and "small quantity" waste from the industrial, commercial and institutional sectors. The Minister has designated Waste Diversion Ontario as the Industry Funding Organization charged with developing a waste diversion programme for the designated wastes, which will require changes to the composition of the Board of Directors to ensure representation of affected stakeholders.

The development of diversion programmes is to proceed in two phases, with the first focused on eight categories of waste: paints and coatings, solvents, oil filters, lubricating oil containers, single-use dry-cell batteries, antifreeze, pressurized containers, and fertilizers, pesticides, herbicides, insecticides and their containers. Consultations are planned in relation to the draft programme between February and May 2007; for more information see http://www.wdo.ca/content/?path=page80+item125629.

Central Lake Ontario Conservation Authority Regulation

Regulation 145 of the Revised Regulations of Ontario, the Fill, Construction and Alteration Regulation - Central Lake Ontario was revoked in December 2006 by O. Reg. 578/06. Development within the Authority's jurisdiction is now governed by O. Reg. 42/06, Central Lake Ontario Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses. See http://www.e-laws.gov.on.ca/DBLaws/Regs/English/060042_e.htm.

Safe Drinking Water Act, 2002

Housekeeping changes were made to the French language version of the Safe Drinking Water Act, 2002 through O. Reg. 532/06.

QUÉBEC:

Proposed Fees Under The Environmental Quality Act

When section 31.0.1 of the Environment Quality Act comes into force, it will give the Minister of Sustainable Development, Environment and Parks the power to set the duties and fees to be charged in relation to the issue, amendment or renewal of any certificate of authorization, permit or other approval required under the Act. In anticipation of the coming into force of section 31.0.1, the Minister published a draft "Order of the Minister of Sustainable Development, Environment and Parks respecting the fees payable under the Environment Quality Act dated 12 December 2006" ("draft Order") in the January 3, 2007 edition of the Gazette Officielle du Québec.

The draft Order sets out the proposed fees to be charged for a variety of applications processed by the Minisitry. Fees range from $500 for a certificate of authorization under section 22 for a sandpit, or a hot mixed asphalt plant that meets emission standards, to as much as $10,000 for an electric power station generating more than 1 MW of power. The fee for an application under section 24 to transfer a certificate of authorization issued under section 22 will be $500. In relation to the remediation of contaminated sites, fees of $1,000 will apply to approval of a regular dig and dump rehabilitation plan, while cases involving in situ treatment will cost $3,000 and plans requiring to leave in place contaminants through risk analysis practices will cost $8,000.

Comments may be submitted until February 15, 2007 on the draft Order. A supporting document issued by the Ministry of Sustainable Development, Environment and Parks, entitled "L'arrêté ministériel sur la tarification des demandes d'autorisation" (presently available in French only), explains how the Ministry has established the fees set forth in the draft ministerial Order.

Five-Year Review Of Drinking Water Quality Regulation

In December 2006, the Ministry of Sustainable Development, Environment and Parks (MSDEP) tabled its report on the first five years of implementation of the Regulation respecting the quality of drinking water ("Drinking Water Quality Regulation"). The report is entitled "Bilan de mise en oeuvre du Règlement sur la qualité de l'eau potable - Faits saillants" ("Report") and covers the period of June 2001 through June 2005.

Since the Drinking Water Quality Regulation came into force in June 2001, significant improvements have been made to water quality produced by systems throughout the Province. MSDEP recommends regulatory amendments to continue this trend, including: increased efficiency for minimal disinfection; periodic controls of the bacteriological quality of drinking water sources; minimal chlorine concentration following treatment; calculation of efficiency levels attained in larger systems; and mandatory auditing or inspection for the safety of the materials or chemical products used in water treatment. The Report recommends testing at water system intakes, to enable plant operators to determine if there are sources of contamination upstream. Amendments were also suggested to provide for more efficient transmission by laboratories of test results which fail to meet regulatory standards, along with the results of clearance tests after the problem has been resolved, to SDEP and to the Director of Public Health.

The exceedances noted over the reporting period were not considered significant; MSDEP observed that mandatory testing has enabled treatment plant operators to implement corrective actions in a timely fashion. As well, significant progress has been made toward ensuring properly trained and certified plant operators. Compulsory training has been completed by 98% of plant operators, and 3,226 certificates and attestations have been delivered through the drinking water operators qualification program initiated by Emploi-Québec and 2,067 certificates to drinking water catchment, treatment and distribution installation operators. That said, as of February 2006, one third of Québec municipalities were still without a certified operator.

The Minister of Sustainable Development, Environment and Parks is required to report on the implementation of the Drinking Water Quality Regulation every five years. In particular, the report must address any recommended changes in water quality standards, taking into account the scientific and technical knowledge available.

Bill 52: Québec's Energy Strategy

Bill 52, entitled An Act respecting the implementation of the Québec Energy Strategy and amending various legislative provisions, came into force on December 13, 2006. This Bill amends various legislative provisions in order to allow the implementation of measures announced in Québec's Energy Strategy, made public in May 2006.

In particular, the Act respecting the Agence de l'efficacité énergétique, the Act respecting the exportation of electric power and the Act respecting the Régie de l'énergie, have been amended in order to broaden the mandate of the Agence de l'efficacité énergétique ("Energy Efficiency Agency"), which will now assume the responsibility of promoting the development of new energy technologies. The Agency must also prepare a comprehensive energy efficiency and new technologies plan, with the participation of energy distributors (i.e. Hydro-Québec and distributors of natural gas and fuel). Distributors will have to implement the programs and actions for which they are responsible under the comprehensive plan.

Bill 52 also provides for the financing of measures aimed at reducing greenhouse gas emissions and adapting to climate change. In that respect, it grants the Régie de l'énergie ("Energy Authority") the power to introduce an annual duty on fuel that distributors must pay into the Québec Green Fund. It is expected that the Régie will establish the amount of the annual duty later this year. Finally, Bill 52 provides for measures to ensure the reliability of electric power transmission in Québec.

Amendments To The Forest Act

On December 13, 2006, Québec passed Bill 49, An Act to amend the Forest Act and other legislative provisions and providing for special provisions applicable to the Territory of application of chapter 3 of the Agreement Concerning a New Relationship Between Le Gouvernement du Québec and the Crees of Québec for the Years 2006-2007 and 2007-2008. This legislation, passed quickly before the holiday period, is now chapter 45 of the 2006 Statutes of Québec.

Amongst other things, Bill 49 allows timber supply and forest management agreement holders (known as "CAAF" for their French acronym "Contrats d'aménagement et d'approvisionnement forestier") to send, during a given year, a certain quantity of timber harvested from forests on public lands to wood processing plants other than those referred to in their CAAF. This will most probably have impacts on agreement holders which do not own processing plants. Bill 49 further allows the Minister to grant an authorization to CAAF holders to harvest an additional volume of timber, in advance, during a given year. However, the average annual volume harvested during the period covered by the general forest management plan must not exceed the annual volume determined in the CAAF.

Bill 49 also provides for the decommissioning of forest road infrastructure, a matter not previously provided for and which had been requested by many interveners. Finally, Bill 49 introduced special provisions applicable to the Territory of application of the Paix des Braves (the New Relationship Agreement between Québec and the James Bay Crees) for 2006-2007 and 2007-2008, to ensure that Québec delivers the remaining wood cutting volumes to Cree enterprises as it undertook to do in the Paix des Braves.

COURT CASES:

Newmarket (Town) v. Halton Recycling Ltd., [2006] O.J. No. 3918 (Sup. Ct.)

The Ontario Superior Court of Justice released its decision in Newmarket (Town) v. Halton Recycling Ltd. on September 29, 2006. This decision marks the first judicial consideration of s. 433 of the Municipal Act, 2001. Section 433 permits a municipality to apply to the court for an order to close premises for up to two years. In order to obtain such an order, the court must find that a public nuisance exist, which is having a detrimental impact on use and enjoyment of property, and that the owner knew or ought to have known that the public nuisance but failed to take proper steps to eliminate it.

In Newmarket, Justice Bryant interpreted s. 433 in a broad and purposive manner and concluded that although "odours" is not specifically enumerated as a public nuisance, the court is not precluded from issuing an order of closure for a public nuisance caused by odours. Justice Bryant was not satisfied that Halton Recycling Ltd. ("Halton") had taken all necessary steps in a timely manner to eliminate the public nuisance emanating from its premises. Although Halton knew that it had a significant odour emission problem, it did not commence its remediation program until approximately fourteen months after it commenced its operations. Justice Bryant issued a 9-month closure order to Halton with a 90-day stay (on specific terms) to give Halton a window of time to abate the public nuisance.

This decision is significant because it recognizes that noxious odours constitute a public nuisance, and that complainants are not limited to actions in private nuisance. In addition, the decision broadens powers of municipalities to regulate local environmental public nuisances. To obtain a copy of the decision, see http://132.204.136.40/on/cas/onsc/2006/2006onsc16234.html.

WHAT'S HAPPENING?

Katherine van Rensburg appointed to the Ontario Superior Court of Justice

On November 23, 2006, the Honourable Vic Toews, Q.C., Minister of Justice and Attorney General of Canada appointed Gowlings' partner Katherine van Rensburg as a Judge of the Superior Court of Justice for Ontario. The Environmental Law Practice Group at Gowlings is delighted to offer our congratulations to Judge van Rensburg, our former partner and Executive Editor of the Environment @ Gowlings Newsletter, on this remarkable achievement. Judge van Rensburg's appointment comes after more than two decades of excellence in client service, as a Certified Specialist in both environmental law and litigation.

Johanne Mainville appointed to the Québec Superior Court

On November 23, 2006, the Honourable Vic Toews, Q.C., Minister of Justice and Attorney General of Canada also appointed Gowlings' Montreal office partner Johanne Mainville as a judge of the Québec Superior Court. The Environmental Law and Aboriginal Law Practice Groups at Gowlings are pleased to offer their congratulations to Judge Mainville on this remarkable achievement that comes after some 22 years of practicing Aboriginal Law and Environmental Law for her clients and, namely, the Grand Council of the Cree. Her vast experience is these matters will constitute a significant contribution to the Superior Court's expertise in these fields of law.

Gowlings launches "Webinar" Series Comparing US and Canadian Environmental Legislation

Paul Granda, a partner in Gowlings' Montreal office and an environmental law specialist, assumed leadership of the National Environmental Law Practice Group at Gowlings following Judge van Rensburg's appointment. For more information or to contact Paul please see www.gowlings.com/professionals/professional.asp?profid=1050&lang=0.

Upcoming: North American Real Estate Issues - Perspectives from the U.S. and Canada, Feb. 22, 2007 (Webinar)

Mark Madras moderated a webinar in January focused on opportunities and issues related to Energy from Waste Projects in Canada and the U.S. The webinar was the first of a series of comparative looks at Canadian and American legislation governing the areas of Real Estate, Chemical Regulation, and Construction Law, and is offered jointly by Gowlings and Thomson Hine LLP. The next webinar in the series is February 22, 2007 and will cover North American Real Estate: Perspectives from Canada and the U.S.

Upcoming: Introduction to Environmental Law and Due Diligence - February 28, 2007 (Toronto) and March 15, 2007 (Kitchener)

Gowlings will continue to offer full-day introductory courses on Environmental Law and Due Diligence throughout 2007. The next two scheduled dates are February 28, 2007 in Toronto and March 15, 2007 in Kitchener. Courses will also be held in Hamilton, Ottawa and Waterloo later in the year. For more information, or to register, see http://www.gowlings.com/ohslaw/pdfs/EnvironmentalLaw&DueDiligence.pdf.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions