With the change of the Canadian federal government in 2015, there remains a tangible sense that Canada’s environmental regulation is moving towards further integration with international standards, which might be hastened by the protectionist politics of the current US administration.
Climate change is at the centre of federal environmental policy and will extend beyond the controversial national minimum carbon price to energy policy more generally, as well as transportation, infrastructure and resource management. It remains to be seen how many of these goals will be frustrated by assertions of provincial and territorial jurisdiction in key areas of federal strategy.2
Ii LEGISLATIVE FRAMEWORK
i Federal legislation
The Canadian federal government and the provincial or territorial governments both have jurisdiction over areas of environmental protection based on the division of powers under the Canadian Constitution. As such, there is often an overlap, if not contesting claims of legislative authority, between federal and provincial or territorial regulators.
The central piece of federal legislation regulating the environment is the Canadian Environmental Protection Act (CEPA), providing for, among other things, intergovernmental cooperation and cradle-to-grave (from beginning to end of the life cycle) regulation of toxic substances. Under CEPA, the Minister of the Environment and Climate Change may enter into equivalency agreements with the provincial, territorial and aboriginal governments, exempting them from the application of CEPA, thereby further splintering environmental regulation in Canada. Further, the government recently released the report of its review of CEPA, which recommended a number of changes to the legislation.3
Other federal statutes that deal with specialised environmental matters include the Fisheries Act, the Canadian Environmental Assessment Act, the Arctic Waters Pollution Prevention Act, the Canada Shipping Act 2001, the Pest Control Products Act and the Transportation of Dangerous Goods Act 1992.
ii Provincial/territorial legislation
Each Canadian province and territory also has its own environmental legislation, regulating day-to-day environmental management. In Ontario, the Environmental Protection Act (Ontario EPA) regulates the environmental quality of air, soil, sediment, groundwater, sewage, certain target hazardous substances, regulated waste streams, waste management systems and some areas of waste diversion, along with reporting requirements and penalties for failure to comply with the EPA. Other provincial statutory areas of environmental regulation include provincial and territorial environment assessments, waterbodies, drinking water, pesticides, nutrient management, renewable energy and climate change.
iii International agreements
Canada’s international commitment to protection of the environment and minimisation of climate change currently emanates from the United Nations Framework Convention on Climate Change (the Paris Agreement), an agreement that requires all parties to commit to ‘nationally determined contributions’ and report on emissions and agreement implementation plans.4 Canada is also a party to the Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants with a number of other nations, which is a voluntary initiative aimed at protecting the environment and public health and addressing climate change.5 Additionally, Canada is a party to numerous bilateral and multilateral environmental agreements with nations around the globe.6
IIi THE REGULATORS
Environment and Climate Change Canada (ECCC) regulates and enforces rules with respect to environment with a publicly stated mandate to:
- a preserve and enhance the quality of the natural environment, including water, air, soil, flora and fauna;
- b conserve Canada’s renewable resources;
- c conserve and protect Canada’s water resources;
- d enforce rules relating to boundary waters; and
- e coordinate environmental policies and programmes for the federal government.7
In addition to the ECCC, the Ministry of Fisheries and Oceans oversees the Fisheries Act and the Oceans Act and the Ministry of Transportation oversees the Transportation of Dangerous Goods Act 1992.
ii Provincial and territorial
Provinces and territories have regulators similar to the ECCC. For example, in Ontario, the Ministry of Environment and Climate Change administers certain pieces of legislation with respect to environment and climate change, including: the Clean Water Act, the Ontario EPA, the Safe Drinking Water Act, the Toxics Reduction Act and the Resource Recovery and Circular Economy Act (RRCEA).
Courts in Canada play an important role in enforcing laws as they exercise appellate and review powers over administrative environmental decision-making. In some provinces, the environmental protection legislation expressly mandates the courts to determine liability and apportion damage for environmental harm, though most environmental protection issues are determined, at first instance, by specialised environmental administrative tribunals. For example, the Ontario Environmental Review Tribunal resolves applications and appeals under the Ontario EPA and the British Columbia Environmental Appeal Board hears appeals of decisions of government officials under the Environmental Management Act (an act similar to the Ontario EPA).
i General enforcement and compliance
Breaches of CEPA include the unauthorised importation of chemicals into Canada, ocean dumping and international air pollution.8 Offences under CEPA are quasi-criminal and carry with them heavy fines or imprisonment terms. Penalties for failure to comply with the terms of an authorisation or direction include a fine of up to C$1 million or imprisonment of up to three years, or both.9 For example, in 2015 a company was ordered to pay C$375,000 after pleading guilty to offences under CEPA, the Fisheries Act and the Environmental Emergency Regulations relating to the spill of chemicals into the environment and water frequented by fish.10
There are two enforcement categories under CEPA: inspection and investigation. If, during the course of an inspection, it is determined that a provision under CEPA has not been complied with, the inspector may issue a warning, ticket, direction, ministerial order or injunction, depending on the severity of the violation. An investigation involves the gathering of information from a number of sources and may include, where necessary, obtaining a search warrant.
The two most significant corrective measures under CEPA are environmental protection alternative measures, which are negotiated settlements, and environmental protection compliance orders. Offenders may also receive hefty financial ‘administrative monetary penalty orders’, which may be awarded in addition to prosecutions for the same offence.11
Provincial and territorial enforcement
At the provincial or territorial level, the consequences for failure to report a violation of either environmental law or the terms of an environmental approval or licence can be severe. In Ontario, for instance, generally every person who contravenes the Ontario EPA is guilty of an offence and can be liable, for each day or part of a day that the offence occurs or continues, for a fine of up to C$50,000 on a first conviction and, on each subsequent conviction, for a fine of up to C$100,000, imprisonment for a term of up to one year, or both.12
A corporation that contravenes the Ontario EPA is generally liable on conviction, for each day or part of a day on which the offence occurs or continues, to a fine of not more than C$250,000 on a first conviction and not more than C$500,000 on each subsequent conviction.13 The trend in the provinces and territories recently has been towards widening the net of environmental liability and attacking pollution offenders at the source, whether as owners or occupiers of property, owners of contaminants or, increasingly, directors and officers of the polluting corporation. The Ontario Court of Appeal has held the City of Kawartha Lakes responsible for a fuel spill that migrated from an adjacent property, in spite of its innocence (as it was neither a polluter nor an occupant).14 Conversely, in British Columbia, the principle of polluter pays was strictly applied to hold a historical owner liable for the pollution of land.15 British Columbia has also recently implemented new spill response regulations that impose reporting, recovery and response obligations on ‘responsible persons’.16
ii Environmental torts
In addition to administrative sanctions, civil cases under the common law of toxic torts may be brought where a party has suffered environmental harm. Toxic tort17 cases in Canada fall into two categories: generic causation and specific causation. In order to be successful in a claim for damages for a toxic tort, the plaintiff must prove: first, that the defendant’s substance was capable of causing the injury claimed (the generic causation); and, second, that the toxic substance actually caused the illness or damage in the specific circumstances (the specific causation).18 Causation is difficult to prove in Canada as there must be evidence that the action or inaction of the defendant caused the specific damage or injury claimed by the plaintiff.
In Ontario, a fuel supplier was recently held liable in negligence for failing to conduct a legally required inspection of a fuel tank.19 While the damages were reduced as a result of the plaintiff’s contributory negligence, the supplier was ordered to contribute to the costs of certain remediation activities. Many environmental liability claims involve government actors. A recent decision of the Supreme Court of Canada (SCC) found that the Alberta Energy Board did not owe a duty of care to a claimant, and that instead the plaintiff should have pursued an administrative remedy.20
Class actions for environmental torts have also encountered resistance in Canadian courts. For example, the SCC in Hollick v. Toronto (City) held that the requirements to certify the class action were not met in a case where the plaintiffs complained of noise and physical pollution from a landfill that was owned and operated by the City of Toronto.21 However, the SCC kept the door open for future class actions for toxic torts, stating that ‘[w]hile the appellant has not met the certification requirements here, it does not follow that those requirements could never be met in an environmental tort case.’22 The Law Commission of Ontario has announced that it will conduct a comprehensive review of the province’s class action regime, with a report due in the autumn of 2018. This report could herald changes to the regime, as well as new opportunities for toxic tort class actions.23
iii Corporate liability
Owners and previous owners of property, occupants and previous occupants, as well as persons who have or had charge, management or control of the source of contamination, may all be within the reach of regulatory authorities. Corporations in Canada are viewed as ‘persons’ who are subject to the same environmental liability as any other individual.24 However, the nature of environmental protection laws allows governments to avoid corporate boundaries to hold other parties liable for environmental damage. Some environmental statutes use ‘owners’ and ‘operators’ as the categories of liable persons, including natural persons acting in concert with those owners and operators.25
One common test for environmental liability used in Canada is ‘control’. The test of control is a factual one, based on an assessment of the corporation’s scope of activity causing pollution. If the corporation can and should control the activity at the point where pollution occurs, migrates or otherwise creates an adverse impact, then it will be responsible for the pollution.26 As a result of this test of control, parent companies may be held liable for the environmental offences of both their agents and subsidiaries; however, such a case has not been substantively considered by Canadian courts.
Generally, unless a corporate entity is used in the commission of a fraud, courts are reluctant to look beyond the corporate structure or ‘pierce the corporate veil’ and award damages for environmental torts. As such, a corporation will only be held responsible for the actions of a subsidiary corporation committing an environmental tort (even if that subsidiary is wholly-owned by the parent) where it can be demonstrated that the parent company is an ‘alter ego’ for the subsidiary.27
iv Director liability
It is common in Canada for statutes to hold directors and officers liable when they authorise, acquiesce or participate in an environmental offence.28 A director or officer who actually approves an action that is an offence, even if the action is not carried out personally, can be said to have authorised it. A failure to take action or engaging in wilful blindness or negligence, despite awareness of the commission of an offence or of an omission to act, may constitute acquiescence. A director or officer can be said to cause or permit a corporate offence if the director or officer was in a position of influence and control to prevent the commission of the offence but failed to act. How much control will result in liability is determined by a factual assessment of proximity to the activity at the point at which pollution occurs.29 Further, liability will ‘crystallise’ at the time of pollution and may follow a director or officer long after resignation.30
The defence of due diligence is available to directors and officers for environmental liability. The defence was introduced in the 1978 case, R. v. Sault Ste. Marie, in which the SCC created a new category of offences now known as ‘strict liability’ offences. Essentially, strict liability offences preserve administrative ease of proof, since mens rea, or the guilty mind, is not an ingredient of the offence. In other words, an accused will be found liable so long as the offence was committed, regardless of their intention. An accused may be acquitted, however, if, on the balance of probabilities, all reasonable care or due diligence was exercised to avoid the particular event giving rise to the charges.31
V REPORTING AND DISCLOSURE
i Environmental audits
With the introduction of the ISO 14000 environmental management standards, environmental auditing has become even more common. In addition, audits may be required for lending purposes, in purchase and sale transactions, for landlord or tenant purposes or simply to identify areas of potential risk. Environmental audits are not, however, generally mandated by any government legislation or regulation in Canada.
ii Reporting requirements
There are specific reporting requirements under CEPA and provincial or territorial legislation for unauthorised discharges into the environment including where ‘adverse effects’ may be caused.
Vi ENVIRONMENTAL PROTECTION
i Air quality
Federal, provincial and territorial governments each have general air emission assessment and reporting obligations: under CEPA, there is a National Pollutant Release Inventory (NPRI); provincially, there are programmes such as Ontario Regulation 419/05, which requires Emission Summary and Dispersion Modelling Reports.32 The NPRI is Canada’s publicly accessible inventory of pollutants that have been released (into the air, water or land), disposed of or transferred for recycling.33 The NPRI requires owners and operators to report releases of substances that exceed certain quantities. For the 2014 reporting year, 7,720 owners or operators of industrial, commercial and institutional facilities submitted NPRI reports regarding 343 substances; however, the Report notes that there has been a general decline in the quantities of substances released directly into the environment and a decline in the number of facilities that report each year.34 Canada has also regulated certain industries and air pollutants separately, in order to address the complexities of each.35
In 2012, the Ministers of the Environment (with the exception of Quebec) agreed to implement the Air Quality Management System (AQMS), which is a comprehensive approach to reducing air pollution by governments and stakeholders in Canada.36 The goals of the AQMS are accomplished in many ways; for example, the provinces and territories delineate air zones within their jurisdictions and agree to improve air quality and ensure the Canadian Ambient Air Quality Standards are met.37
A growing number of municipalities have also implemented local air emissions by-laws. Pursuant to the City of Toronto Bylaw No. 1293-2008, colloquially referred to as the ‘Right to Know Bylaw’, Toronto has created the ChemTRAC programme, designed to increase public awareness regarding chemicals and pollutants in the Toronto area by providing access to an interactive map of the city that allows residents to locate facilities in their neighbourhood that emit regulated substances.38 The Right to Know Bylaw requires small and large companies to report to Toronto Public Health each year that the facility emits certain substances that have been identified to be harmful to health and linked to cancer or lung problems.39 The Right to Know Bylaw obligates, for the first time, many small to medium-sized companies (such as printing companies, food and beverage manufacturers, etc.) to monitor their use and release of hazardous substances into the air and report any release to the public.40 The Right to Know Bylaw has a lower threshold for reporting the release of certain substances than provincial and federal legislation.41
ii Water quality
In Canada, the federal government is responsible for fisheries, navigation, federal lands and international relations, including issues related to the management of boundary waters, and also is generally responsible for agriculture, health and the environment. Provinces and territories are also responsible for regulation of waterways within each respective jurisdiction and CEPA is thus intended to supplement and complement existing provincial regulations.42 In particular, CEPA regulates which substances may enter water in Canada to prevent deleterious effects to water.43 The federal government, under this authority, has also released a number of guidelines with respect to protecting water quality from certain substances.44 The Department of Fisheries and Oceans (DFO) and the ECCC share responsibility for the conservation and protection of fish habitat and freshwater in Canada under the Fisheries Act. The DFO administers habitat protection, the prohibition against any work or undertaking that would cause the harmful alteration, disruption or destruction of a fish habitat.45 The ECCC oversees the prohibition against the depositing of deleterious substances into waters in Canada without authorisation.46
Provincial and territorial legislation plays a key role in protection of water quality in Canada. The Ontario Water Resources Act (OWRA) also makes it an offence to discharge any materials into water that impair the quality of the water, with reporting requirements for the same.47 The goals of the OWRA are furthered by the Ontario EPA, which sets out specific effluent limit regulations in certain sectors including: petroleum, pulp and paper, industrial minerals, metal casting, metal mining, organic chemical manufacturing, inorganic chemical manufacturing, iron and steel and electric power.48
Ontario, in particular, has enacted fulsome legislation for the protection of water quality in the province.49 Ontario has pledged to protect and restore the ecological health of Ontario’s Great Lakes in the Great Lakes Protection Act 2015, in order to follow through on its Great Lakes Strategy.50 The Great Lakes Nutrient Initiative of the ECCC will provide funding to address algae growth in the Great Lakes and advance scientific research into the causes of algae.51 In addition to other national efforts,52 Canada and the US entered into a Great Lakes Water Quality Agreement, which was most recently amended in 2012, wherein both parties agree to take steps to restore and protect the water quality and health of the ecosystems of the Great Lakes.53
There have been considerable regulatory developments under the ECCC’s Chemical Management Plan (CMP), since its inception in 2006, including requirements for surveys, substance reassessments and permits. Monitoring and surveillance initiatives are central to the CMP and involve the collection of chemical, physical and biological data in order to detect and characterise environmental change.54 Environmental monitoring and surveillance initiatives include national monitoring programmes for landfills and concentrations of chemicals in the environment. Human surveillance and monitoring include obtaining information to focus research on areas with respect to determining baseline levels of chemicals that exist in Canadian citizens and corresponding health risks, trends in exposure, evaluation of under-studied substances, and assessment of the effectiveness of health and environmental efforts.55
Pursuant to the CMP, risk assessments of new substances and existing substances on the Domestic Substances List (DSL) are being undertaken to determine whether a substance is toxic56 and thus poses a risk to human health or the environment and to impose restrictions upon its use as necessary.57 CEPA provides the definition of toxic substances, which includes substances that may have immediate or long-term harmful effects or pose a danger to the environment or human health.58 Restrictions upon the use of DSL substances have been expanding significantly as part of the CMP’s reassessment of existing chemicals. Some substances on the DSL, used in ‘significant new activities’, are also subject to notification requirements.59
Transport Canada oversees the Transportation of Dangerous Goods Regulations (the TDG Regulations), which maintain nine classes of dangerous goods, namely: explosives; gases; flammable liquids; flammable solids; oxidising substances and organic peroxides; toxic and infectious substances; radioactive materials; corrosive substances; and miscellaneous products, substances, or organisms.60 In addition to the classifications, certain dangerous goods are further assigned one of three hazard levels that are intended to show when a substance is particularly hazardous.61 The TDG Regulations also set out specific requirements with respect to documentation and signage with respect to the dangerous goods. Among others, the TDG Regulations require that transporters of dangerous goods have a shipping document with respect to the dangerous goods that are being transported, which must contain certain information and have an Emergency Response Assistance Plan. It is also the responsibility of the transporters to ensure that there are adequate safety markings displayed that make it clear that dangerous goods are being transported, with immediate reporting requirements upon any release of a substance.62
iv Solid and hazardous waste and waste diversion
In Canada, federal jurisdiction over waste is very limited and generally restricted to certain categories of toxic and hazardous waste,63 while provinces and territories may make regulations for all other wastes.64 Under the Ontario EPA, a certificate of approval is required for a waste management or waste disposal site and it is prohibited to deposit waste in land that is not a waste disposal site.65 Waste generation is, where consistent with the Ontario EPA more generally, subject to registration but not to permit requirements.66
In 2009, the Canadian Council of Ministers of the Environment approved an action plan for Extended Producer Responsibility (EPR),67 that was intended to create a harmonised approach by the provinces to waste management in Canada.68 By making producers responsible for the end-of-life management of products, the responsibility and costs associated with these products at end-of-life is shifted from governments and consumers, to producers and thus there is an intended financial incentive for producers to use environmentally friendly packaging.69 While the intent of EPR is to create a harmonised approach, provinces still have autonomy to determine how to implement the principles of EPR with respect to different kinds of waste. Corporations will need to be aware of costs associated with end-of-life management of products and the particular legislative framework in its jurisdiction.
In June 2016, the Ontario government introduced a unique waste diversion initiative set to come into effect in January 2017. The Waste-Free Ontario Act enacted the RRCEA and the Waste Diversion Transition Act. This new regime aims to shift to a ‘circular economy’ to increase resource recovery and diminish waste.70 This initiative is the first of its kind in North America in that manufacturers, importers and brand owners are now directly responsible for diverting the waste created by their products and packaging.
v Contaminated land
Provincial and territorial legislation, such as the Ontario EPA, provides for the cleanup and redevelopment of underused industrial and commercial brownfields. If a brownfield property is being redeveloped, property owners must meet requirements with respect to assessing the environmental condition of the property where seeking a record of site condition.71 Ontario has recently released a set of draft guidelines to help proponents of projects consider climate change when completing an environmental assessment. The draft guideline suggests that project proponents consider the emissions of the project, the potential effect on the capacity of the surrounding environment to remove carbon dioxide from the area, and sets out general steps and questions to consider.72
VII CLIMATE CHANGE
Canada’s stated priorities with respect to climate change start with the Paris Agreement. Provincial and territorial governments have also been taking steps to address the effects of climate change. Ontario’s Green Energy Act 2009 exempts renewable energy projects from certain municipal and provincial approvals through a comprehensive programme that guarantees rates for energy generated from renewable sources and is designed to encourage the development of renewal energy projects. The Climate Change Mitigation and Low-carbon Economy Act 2016, which authorised the creation of a regulatory scheme to reduce greenhouse gas, is used to assist Ontarians with a transition to a low-carbon economy, and to enable Ontario to collaborate and coordinate its actions with other jurisdictions, including Quebec.73
Other provinces have differing legislative frameworks to limit greenhouse gas emissions. Alberta was Canada’s first province to regulate greenhouse gas with its Specified Gas Emitters Regulation.74 The province has also imposed a carbon levy on transportation and heating fuels; these rates went up on 1 January 2018.75 The Alberta government also passed the Oil Sands Emissions Limit Act, which places an annual 100 megatonne cap on greenhouse gas emissions specifically from oil sands in Alberta, which is intended to encourage innovation and use of renewable energy technology.
Quebec has implemented a cap-and-trade system that places an overall cap on emissions, which is linked to California’s cap-and-trade programme.76 British Columbia implemented a carbon tax on all fossil fuels consumed in the province that has gradually increased since its inception in 2008.77 Manitoba recently set its own climate change plan, which includes a carbon tax scheme.78 In October 2016, the federal government announced a national minimum carbon price based on greenhouse gas emissions that will apply to provinces and territories that do not implement their own regimes by 2018; however, the deadline may be extended given the absence of enabling legislation.
Whether the provincial and federal schemes with respect to carbon-pollution pricing will be successful in achieving the stated goals is yet to be seen. Some provinces have embraced a form of carbon tax, but the federal government’s announcement of its carbon tax plan has caused controversy in Canada and resulted in the Premier of Saskatchewan threatening legal action, though to date no proceeding has been commenced, and the province currently appears to be working on a carbon plan.79
VIII OUTLOOK AND CONCLUSIONS
2018 will be the year of federal-provincial (dis)harmony on greenhouse gas emissions limits, with the notional imposition of a federal minimum carbon price. The diffusion of approaches to climate change will continue into the compliance year, with clear signals that more constitutional challenges of federal jurisdiction are looming.
1 Jonathan Cocker is a partner at Baker McKenzie. Special thanks to Ben Sakamoto, articling student at Baker McKenzie, for assisting with the research and writing of this chapter.
2 For instance, the Federal Court of Appeal dismissed a jurisdictional challenge to the Federal Renewable Fuels Regulations from oil sands producer Syncrude, Syncrude Canada Ltd v. Canada, 2016, FCA 160.
3 Canada, Parliament of Canada Standing Committee on Environment and Sustainable Development, ‘Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening the Canadian Environmental Protection Act, 1999’, online: www.ourcommons.ca/DocumentViewer/en/42-1/ENVI/report-8.
4 United Nations Framework Convention on Climate Change, ‘The Paris Agreement’ (22 November 2017), online: http://unfccc.int/paris_agreement/items/9485.php.
5 Canada, climatechange.gc.ca, ‘Climate and Clean Air Coalition (CCAC) to Reduce Short-Lived Climate Pollutants (SLCPs), (mod. 27 November 2015), online: www.climatechange.gc.ca/default.asp?lang=En&n=7F771E4A-1.
6 See list of Canada’s environmental agreements: Canada, Environment and Climate Change Canada, Engagements in International Environmental Agreements (mod. 9 November 2017), online: www.ec.gc.ca/international/default.asp?lang=En&n=0E5CED79-1.
7 Canada, Environment and Climate Change Canada, About Environment and Climate Change Canada, (mod. 12 December 2016), online: www.ec.gc.ca/default.asp?lang=En&n=BD3CE.
8 Ibid, at 2 (Environmental Management in Canada).
9 Canadian Environmental Protection Act, SC 1999, c 33, at Section 272.1 [CEPA].
10 Environment and Climate Change Canada, ‘Spill results in $375,000 penalty for Panther Industries (Alberta) Inc.’ (29 July 2015), online: www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=417E42E2-1.
11 Environment and Climate Change Canada, ‘Policy Framework of the Administrative Monetary Penalty Regime at Environment and Climate Change Canada to Implement the Environmental Violations Administrative Monetary Penalties Act’ (24 November 2017), online: https://www.ec.gc.ca/alef-ewe/29F33776-D3BA-4592-B1B1-0019D97872AC/APF_E_JUN12-2017%20Final%20FIP.pdf.
12 Environmental Protection Act (Ontario), RSO 1990, c E-19, at Section 182.1-182.2, 187 [EPA].
13 Ibid, at Section 187.
14 Kawartha Lakes (City) v. Ontario (Environment), 2013 ONCA 310, at paragraphs 19-21.
15 J.I. Properties Inc. v. PPG Architectural Coatings Canada. Inc./PPF Revetments Architecturaux Canada Inc., 2014 BCSC 1619, at paragraph 111 (aff’d in 2015 BCCA 472).
16 Government of British Columbia ‘New Spill Response Regulations to take effect October 30, 2017’, online: https://www2.gov.bc.ca/gov/content/environment/air-land-water/spills-environmental-emergencies/spill-preparedness-and-response-bc.
17 The principal torts claimed in environmental matters are (1) nuisance; (2) negligence; (3) trespass; and (4) strict liability.
18 Lynda M Collins, Material Contribution to Risk in the Canadian Law of Toxic Tort, 91:2 Chi.-Kent. L. Rev. 567 (2016), online: http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=4119&context=cklawreview.
19 Gendron v. Thompson Fuels, 2017 ONSC 4009.
20 Ernst v. Alberta Energy Regulator, 2017 SCC 1.
21 Hollick v. Toronto (City), 2001 SCC 68, at paragraphs 36, 2.
22 Ibid, at paragraph 37.
23 Law Commission of Ontario, ‘Class Actions’, online: www.lco-cdo.org/en/our-current-projects/class-actions/.
24 Canada Business Corporations Act, RSC, 1985, c C-14, at Section 15(1).
25 See for example: CEPA, supra; EPA, supra.
26 See, for example: Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819, at paragraphs 81–89.
27 CED (online), Business Corporations Ontario, ‘Characteristics of a Corporation: Limited Liability; Piercing or Lifting Corporate Veil (I.2(b).(ii) (Ontario)) at Sections 23–28.
28 See, for example: CEPA, supra at Section 280.1; EPA, supra at Section 194.
29 See, for example: Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819, at paragraphs 81–89.
30 See: Baker v. Ministry of Environment, 2013 ONSC 4142, wherein the Ontario Divisional Court refused to stay an order issued by Environment Canada against former directors and officers of a corporation, meaning that they remained responsible for monitoring, reporting and remediation.
31 See, for example: R v. Bata Industries Ltd.,  O.J. No. 236.
32 Ontario Regulation 419/05, supra at Sections 22–27.
33 Environment and Climate Change Canada, National Pollutant Release Inventory (mod. 19 April 2014), online: www.ec.gc.ca/inrp-npri/.
34 Canada, Environment and Climate Change Canada, ‘2015 Summary Report: Reviewed Facility-Reported Data: National Pollutant Release Inventory (NPRI), online: www.ec.gc.ca/inrp-npri/default.asp?lang=En&n=386BAB5A-1&printfullpage=true.
35 For example: Under the Ozone-depleting Substances Regulations, 1998 (ODSR), individuals must receive authorisation from the ECCC prior to manufacturing, importing or exporting a an ozone-depleting ‘controlled substance’ (defined in the ODSR) by obtaining a consumption allowance or a permit. The On-Road Vehicle and Engine Emission Regulations under CEPA establish emission limits and standards for all vehicles, engines and motorcycles and are harmonised with those in the United States by reference to applicable US standards.
36 Canadian Council of Ministers of the Environment, Resources – AQMS, online: www.ccme.ca/en/resources/air/aqms.html.
38 City of Toronto, ‘ChemTRAC Data’, online: www1.toronto.ca/wps/portal/contentonly?vgnextoid=63dfad7efc232510VgnVCM10000071d60f89RCRD.
39 Anne Wordsworth, Heather Marshall and Sarah Miller, Toronto Toxic Reduction Tool Kit, Toronto Cancer Prevention Coalition, March 2013, online: www.cela.ca/sites/cela.ca/files/TorontoToxicReductionToolKit-fulltext.pdf, at TK1.2.
40 Ibid, at TK1.2.
41 Ibid, at TK3.2.
42 Guide to CEPA, supra at 8.1.2 (Who Protects Canada’s Marine Environment?).
43 Canada, Environment and Climate Change Canada, Federal Policy and Legislation, at ‘Water Regulation’.
44 Canada, Environment and Climate Change Canada, Guidelines and Objectives (mod. 19 July 2017), online: www.ec.gc.ca/lcpe-cepa/default.asp?lang=En&n=E9DBBC31-1.
45 Environment and Climate Change Canada, ‘Fisheries Act’ (mod. 7 June 2016), online: www.ec.gc.ca/pollution/default.asp?lang=En&n=072416B9-1.
47 Ontario Water Resources Act, RSO 1990, c O-40, at Section 30.
48 See regulations under EPA, supra.
49 For example, the Safe Drinking Water Act, 2002 sets out standards for quality, testing, treatment, reporting, and penalties for non-compliance with the Act that apply to owners of a municipal drinking water system or a regulated non-municipal drinking water system. Ontario has also enacted the Water Opportunities Act which aims to foster innovative water, wastewater and stormwater technologies in Ontario in order to create clean-technology jobs and conserve and sustain water resources.
50 Great Lakes Protection Act, 2015, SO 2015, c 24, at 1.
51 Environment and Climate Change Canada, ‘Phosphorus and Excess Algal Growth’ (mod. 8 June 2017), online: https://www.ec.gc.ca/grandslacs-greatlakes/default.asp?lang=En&n=6201FD24-1.
52 For example, the ECCC has established a fund to protect the water quality of Lake Winnipeg, Canada’s sixth largest lake (just behind the five Great Lakes), which is located in Manitoba.
53 Environment and Climate Change Canada, ‘Great Lakes water quality agreement’ (mod. 10 August 2017), online: www.ec.gc.ca/international/default.asp?lang=En&n=EB6F1B1B-1&wbdisable=true.
54 Canada, Chemical Substances: Monitoring and Surveillance (mod. 26 July 2012), online: www.chemicalsubstanceschimiques.gc.ca/plan/surveil/index-eng.php.
56 Section 65 provides the definition of toxic substances, which includes substances that may have immediate or long-term harmful effects or pose a danger to the environment or human health.
57 Canada, Environment and Climate Change Canada, ‘The Canadian Environmental Protection Act, 1999 and the Assessment of New Substances’, (mod. 18 July 2017), online: www.ec.gc.ca/lcpe-cepa/default.asp?lang=En&n=84CC4046-1.
58 CEPA, supra at Section 64.
59 Canada, Environment and Climate Change Canada, ‘Domestic Substances List’ (mod. 14 March 2017), online: www.ec.gc.ca/lcpe-cepa/default.asp?lang=En&n=5F213FA8-1.
60 Transportation of Dangerous Goods Regulations, SOR/2016-95, online: www.tc.gc.ca/eng/tdg/clear-part2-339.htm, at Part 2.
62 Ibid, at Parts 3 and 4.
63 Canada’s response to hazardous waste is dealt with in more detail under the section entitled ‘Contaminated land’.
64 Halsbury’s Canada, Environment, ‘Regulation of non-hazardous waste in Canada’, at HEN-140.III.5(1); Halsbury’s Canada, Environment, ‘Federal regulation of solid waste’, at HEN-141.III.5(2).
65 Ontario EPA, supra at Section 27.
66 Ontario EPA, supra.
67 According to the Canadian Council of Ministers of the Environment, Progress Report on the Canadian-wide Action Plan for Extended Producer Responsibility (2014), EPR is defined as ‘a policy approach in which a producer’s responsibility for a product is extended to the postconsumer stage of a product’s life cycle’.
68 Canadian Council of Ministers of the Environment, Progress Report on the Canadian-wide Action Plan for Extended Producer Responsibility (2014), ISBN 978-1-77202-007-6, online: www.ccme.ca/files/Resources/waste/extended/CAP-EPR%20Progress%20Report.pdf, at 1.
70 Government of Ontario, ‘Strategy for a Waste-Free Ontario: Building the Circular Economy’ (mod. 6 March 2017) online: https://www.ontario.ca/page/strategy-waste-free-ontario-building-circular-economy.
71 Ontario, Ministry of the Environment and Climate Change, ‘Brownfields redevelopment’, online: www.ontario.ca/page/brownfields-redevelopment.
72 Ministry of the Environment and Climate Change, ‘Consideration of Climate Change in Environmental Assessment in Ontario’ (August 2016), online: http://www.ecolog.com/daily_images/1003857166-1003857920.pdf.
73 Climate Change Mitigation and Low-carbon Economy Act, 2016, SO 2016 c 7, at 2(1).
74 Specified Gas Emitters Regulation, Alta Reg. 139/2007.
75 Alberta Government, ‘Carbon levy and rebates’, online: www.alberta.ca/climate-carbon-pricing.aspx.
76 Government of Quebec, ‘The Quebec Cap-and-Trade System for Greenhouse Gas Emission Allowances: Frequently asked questions’, online: www.mddelcc.gouv.qc.ca/changements/carbone/documents-spede/q&a.pdf, at 5.
77 British Columbia, Ministry of Finance, ‘Carbon Tax’, online: www.fin.gov.bc.ca/tbs/tp/climate/carbon_tax.htm.
78 Government of Manitoba, ‘A Made in Manitoba Climate Change and Green Plan’, online: https://www.gov.mb.ca/asset_library/en/climatechange/climategreenplandiscussionpaper.pdf.
79 CBC News, ‘Sask. carbon reduction plan coming by end of year, says minister’ (26 October 2017), online: www.cbc.ca/news/canada/saskatoon/sask-carbon-reduction-flexible-industy-enviro-minister-1.4373431.