Canada: Environmental Law News - February 2009

Last Updated: February 9 2009

Article by Anne-Marie McSween , Christina Vechsler , Carleigh Whitman and Karin Grubb

Québec Is The Leader In The Reduction Of Greenhouse Gas Emissions

In November 2008, the Minister of Sustainable Development, Environment and Parks published a report entitled "The Québec Inventory of Greenhouse Gas Emissions". The report shows that greenhouse gas emissions rose 1.6% in Québec between 1990 and 2006, whereas the Canadian average totals 21.8%. Québec emits less than 12% of the country's emissions, even though it represents almost 25% of its population. The report also indicates that Québec is one of the provinces with the lowest rate of emissions per capita, a rate that has decreased by 7% since 1990. The document also shows, however, that transportation is the largest emitter of greenhouse gases, representing 40% of the total emissions.

The Québec Inventory is comprised of data that has been gathered from businesses and institutions on an annual basis since 1990, as well as statistics obtained from Statistics Canada, the Québec Institute of Statistics, the Department of Natural Resources and Wildlife, the Department of Agriculture, Fisheries and Food, and the Société de l'assurance automobile du Québec, in accordance with the methods of data compilation adopted by the United Nations Framework Convention on Climate Change.

Article by Anne-Marie McSween

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Québec Company Ordered To Pay $15 Million Damages Despite Following Regulations

The Supreme Court of Canada rendered its decision in St. Lawrence Cement Inc. v. Barrette on Thursday, November 20, 2008. In this case, some residents of the city of Beauport, Québec instituted a class action against St. Lawrence Cement ("SLC") for neighbourhood disturbances related to the operation of the plant. The class members were complaining about the consequences of the plant's activities. They complained about the odours, the noise, and the dust emitted by the plant. The evidence showed that SLC spent several million dollars with respect to the protection of the environment and the instalment of dust collectors.

At the trial level, the Superior Court of Québec concluded that the class members had suffered abnormal annoyances with respect to the SLC plant. The Court recognized SLC's liability without finding fault. By doing so, the Court acknowledged the existence of a no-fault liability regime with respect to neighbourhood disturbances under section 976 of the Civil Code of Québec. The Court ordered SLC to pay damages with respect to those disturbances. The Québec Court of Appeal upheld the ruling that SLC was to pay damages, based on a different reasoning, but reduced the amount awarded to the group members. The Court of Appeal rejected the no-fault liability regime but nevertheless concluded that SLC was liable based on proven fault. The Court considered that SLC had the obligation, with respect to an environmental regulation, to "properly maintain its equipment and to ensure that it was functioning optimally during production hours." The Court of Appeal found that SLC had to be able to stop its operation as soon as a breakdown occurred and for as long as it took to repair. The Court of Appeal concluded that SLC had failed to do so on numerous occasions.

The Supreme Court preferred the reasoning of the Superior Court to that of the Court of Appeal. The Court chose to recognize the existence of a no-fault liability regime in the Civil Code of Québec with respect to neighbourhood disturbances (art. 976 C.C.Q.). The Court came to this conclusion after, among other things, comparing Canadian common law and French civil law. In the opinion of the Court, "in both these legal systems, a scheme of no-fault liability in respect of neighbourhood disturbances is accepted in one form or another." Under the no-fault liability regime in the Civil Code of Québec, damages can be granted even if no objective fault is committed, i.e. "even when the defendant is complying with the law so long as the activities caused abnormal annoyances that were beyond the limit of tolerance neighbours owe each other." Consequently, the impact resulting from particular conduct rather than the conduct itself has to be considered. The Supreme Court re-established the damages granted by the Superior Court and ordered SLC to pay damages to the class members.

As the Supreme Court recognized that nuisance in the common law has some shared characteristics with the nofault liability regime under article 976 of the C.C.Q., the SLC judgment might also have impact outside of Québec. In light of all these comments, companies should be careful to ensure that their activities are not causing any abnormal annoyances to their surrounding neighbourhood, even when they are in compliance with the law.

Article by Anne-Marie McSween

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Ontario's Toxics Reduction Strategy

On August 27, 2008, the Ontario Ministry of the Environment posted its proposed Toxics Reduction Strategy for comment on the Ministry's Environmental Registry. The Strategy proposes a three-pronged approach consisting of new legislation, building capacity and support for the reduction of toxins, and providing Ontarians with access to information about toxins in Ontario.

Under the proposed legislation, facilities would be required to monitor the use of designated substances. This accounting of materials would then be used to develop a Toxics Reduction Plan to, among other things, identify ways to avoid or reduce the facility's use of designated substances and propose timelines for implementation. Although the development of Toxics Reduction Plans would be mandatory, implementation of the Plans would be voluntary. In addition, facilities would be subject to reporting obligations related to the use of designated substances and their Toxics Reduction Plan. The Strategy also proposes to require public disclosure, and at a minimum, make summaries of the Toxics Reduction Plans publicly available.

With certain exceptions, the proposed legislation would apply to a broad range of facilities in the manufacturing and mineral sectors that use a designated substance in excess of 10,000 kg annually and employ at least 10 employees.

The Strategy lists approximately 475 designated substances which have been divided into four schedules. Forty-five substances listed under Schedule 1 would be prioritized for immediate action (as early as January 1, 2010) while the regulatory requirements for the 275 substances listed under Schedule 2 would be phased in over time. All of the substances listed under Schedules 1 and 2 are already reportable under the federal National Pollutant Release Inventory (NPRI), except for acetone which has been added to Schedule 2.

Schedule 3 consists of 20 non-NPRI substances which would be subject to new reporting requirements and Schedule 4 includes 135 substances to be examined by the Ministry and which may become subject to the new requirements.

The comment period for the Strategy closed on October 11, 2008. All comments received during the comment period are being considered as part of the Ministry's decision-making process.

Article by Christina Vechsler

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Ready To Report? B.C. Proposes Mandatory Reporting Of Greenhouse Gas Emissions

The B.C. Ministry of Environment is planning to introduce a Mandatory Reporting of Greenhouse Gas Emissions Regulation to support its Greenhouse Gas Reduction (Cap and Trade) Act, and has published an intentions paper outlining the content of the proposed Regulation. The Regulation will provide details on greenhouse gas ("GHG") reporting requirements for facilities that emit GHGs from source categories subject to the Act, and is expected to come into effect in early 2009. The intentions paper is based in part on the Western Climate Initiative ("WCI") Draft Essential Requirements for Mandatory Reporting.

The Regulation will provide detail on the following:

  • greenhouse gases subject to reporting
  • fuels and inputs included in reporting requirements
  • level of emissions requiring reporting
  • facilities required to report
  • sources and activity data to be reported
  • quantification methods to be used in reporting
  • requirements and procedures for annual reporting
  • verification/audit mechanisms
  • compliance obligations

Facilities emitting more than 10,000 tonnes per year of CO2 equivalent will have registration and reporting obligations beginning with the 2009 calendar year. Facilities emitting 20,000 tonnes per year of CO2 equivalent will also be required to provide their best estimate of GHG emissions per source category for 2006, 2007 and 2008. Those emitting over 25,000 tonnes in any year from 2009 onwards must report for all subsequent years, regardless of emission levels. All facilities which reasonably expect to be subject to the Regulation must register with the Ministry before July 15, 2009. Reporting facilities will also be required to arrange for verification of their emission data.

Upstream oil and gas facilities will be subject to a separate threshold of 3,000 tonnes per year of CO2 equivalent designed to ensure a sufficient proportion of upstream oil and gas emissions are reported. Any facility reporting more than 3,000 tonnes per year after 2009 will be required to report each subsequent year, regardless of whether emission levels fall below 3,000 tonnes in the future.

GHG sources that will be exempt from the initial phase of reporting include: forestry, land use and land use change, non-combustion landfill emissions, air, marine, on-road and out of facility off-road transportation, natural gas, propane and home heating oil delivered for consumer use, and hydro-electric facilities.

Article by Carleigh Whitman

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B.C. Contaminated Sites Approved Professionals Society Swings Into Full Operation

On July 1, 2008 the long-anticipated Contaminated Sites Approved Professionals Society ("the CSAP Society") became fully operational in British Columbia.

The CSAP Society is a self-regulating professional society whose members (called Approved Professionals) are authorized to recommend that the Ministry of the Environment (the "Ministry") approve applications for specific legal instruments to be issued in respect of contaminated sites, pursuant to recent amendments to the Environmental Management Act (the "EMA"). As a result of these regulatory amendments, the CSAP Society has been delegated primary responsibility and oversight with respect to so-called "non-high risk" contaminated sites, which will allow the Ministry to focus its resources on procedures and applications related to high-risk sites. The CSAP Society is also responsible for qualifying, overseeing and conducting assessments of Approved Professionals, developing practice guidelines and operational procedures, and responding to complaints regarding Approved Professionals.

With the CSAP Society fully operational, applications for contaminated sites services that must be recommended by an Approved Professional should be sent directly to the CSAP Society. The CSAP Society will receive, process and forward all recommendations by Approved Professionals to the Ministry, once the required documentation and fees have been received and the CSAP Society considers the application to be correct and complete. The Ministry continues to have the final say on issuing all legal instruments and retains full control of high-risk sites.

Under the new regime, Approved Professionals can issue recommendations for the following applications:

  • Approvals in Principle of remediation plans
  • Certificates of Compliance
  • Determinations of Contaminated Sites
  • Soil Relocation Agreements

However, applications addressing sites subject to human health and ecological risk assessment and high-risk sites are not included in the regime.

If an Approved Professional has recommended a requested instrument, the Ministry may issue the requested instrument without further review. These changes are anticipated to speed up applications addressing non-high risk sites, a positive benefit for applicant landowners and developers.

More information on the procedure to be followed can be found on the CSAP Society website, and applications may be completed online. The CSAP Society website is found at http://www.csapsociety.bc.ca/

Article by Karin Grubb

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B.C. Increasing Environmental Protection In The North

In late August 2008, the B.C. Minister of Forests and Range announced that under the "Resource Management Coordination Project," the Province would increase environmental monitoring and protection in northwest B.C. The ministries of Forests and Range, Environment, Energy, Mines and Petroleum Resources, and the Integrated Land Management Bureau, share inspection and enforcement staff and equipment to ensure specific environmental standards are being upheld. Staff from each Ministry are able to investigate and enforce matters such as open burning regulations, land and mine inspections, and waste management practices covered under the Environmental Management Act. The project currently includes staff based in Prince Rupert, Dease Lake, Kitimat, Terrace, and Smithers. The Ministry of Environment has also hired more year-round conservation officers to increase the Ministry's presence on the ground.

It is expected that the project will be expanded to the Omineca, Thompson-Okanagan, and South Coast areas and incorporated into the provincial compliance strategy.

Article by Vancouver Office

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