A duo of recent decisions underscore yet again the need for an
overhaul of the existing environmental assessment ("EA")
Environmental groups Greenpeace Canada, Lake Ontario
Waterkeeper, Northwatch, and the Canadian Environmental Law
Association (the "Applicants") filed two judicial review
applications of the EAs conducted as part of the proposed expansion
of a nuclear power facility. In essence, the Applicants argued that
proper attention was not paid to the most serious potential
environmental and human health impacts from two proposed projects
related to the expansion.
Back in May 2014, the Federal Court granted one of these
applications in part. The Court determined that certain aspects of
a Joint Panel Review pertaining to the proposed construction of a
set of new reactors at the Darlington Nuclear Generating Station in
were unreasonable and sent it back to the assessment panel.
The Applicants then applied for leave to appeal the Federal
Court of Appeal decision to the Supreme Court of Canada. Earlier
this week, their request for leave to appeal was
Meanwhile, the same Applicants filed a second judicial review
application in relation to the screening level environmental
assessment conducted as part of a proposed refurbishment of another
set of reactors at Darlington. The application was
dismissed by the Federal Court in a November 2014 decision.
The Applicants appealed that decision. However, the Federal
Court of Appeal
dismissed that appeal earlier this month.
Both of the environmental assessments at issue in these
applications were conducted under the now repealed Canadian
Environmental Assessment Act. That Act was replaced by the Canadian
Environmental Assessment Act, 2012 as part of the former federal
government's efforts to "streamline" environmental
assessment processes for large-scale projects, including those
related to energy, infrastructure, and resource extraction.
This "streamlining" of the federal environmental
assessment regime has continued to attract intense criticism, in
particular because it has introduced a much weaker, and therefore
less protective, regime for assessing projects that have the
potential to bring significant harm to human health and the
With the continued deference demonstrated by courts such as
those in the Darlington saga to decision makers in the EA context,
it has arguably become even more crucial that the federal
government review and revise the current regime so as to ensure
Canadians and the environment enjoy adequate protection.
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In Crombie Property Holdings Limited v McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 15 (Crombie v McColl ), the Ontario Court of Appeal released an important decision regarding environmental due diligence in a real estate transaction, . . .
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