MPs Vote to Continue Marathon Talkfest as “Strategy” for Disposal of Mercury in CFLs

March 12, 2017 by Kathleen Cooper, Canadian Environmental Law Association

When I was about seven years old I recall my mother getting very upset upon breaking a thermometer.  On her knees and chasing shiny globules of mercury across the kitchen floor, she told me it was poison.  Suitably impressed I did not forget.  But, she put it in the trash unknowingly allowing the release of mercury vapour into our home until garbage day.

Over fifty years later, most Canadians do the same when a compact fluorescent lightbulb (CFL) gets broken, or doesn’t work anymore.  The amount of mercury is a lot less than in the old thermometers but the health risk is the same.  Even for people who know CFLs contain mercury, many throw them in the trash unaware of the need for very careful disposal.

Health Canada, like many other public agencies, has long issued warnings and disposal advice about broken CFLs (remove people and pets, open windows and close all doors, leave the room and air it out for 10 to 15 minutes, turn off the forced air heat, don’t vacuum or sweep, wear rubber gloves, use sticky tape for small particles of glass and powder, wipe surfaces with damp paper or cloth and dispose of the cloth, seal all broken pieces in a glass jar and dispose of as hazardous waste).

The reaction to such advice can be stunned silence.  Likewise, people are often surprised that mercury is in these bulbs and creates a health risk when they are broken.  Despite more than ten years of educational work on this issue, it has largely failed to get the necessary attention.

Over the same time period a marathon talkfest has occurred among federal, provincial, territorial, and municipal governments, and other affected stakeholders such as CFL retailers.  Reports, progress reports, and public outreach materials have documented the problem and urged a careful response.  Likewise, guidance documents have spelled out waste management strategies.  Retailers, with varying degrees of success and consistency have provided CFL take-back programs. Enterprising companies have established CFL recycling facilities.

What has not occurred is an effective or comprehensive strategy to recover the millions of CFLs sold in Canada.  Such sales are due in part to the action of Parliament in 2012 to mandate the elimination of incandescent bulbs.  Now being overtaken by newer and even more efficient LED technology, these millions of CFLs are nearing the end of their, albeit long lifespans.

Despite nearly ten years of talk and report writing there is an inconsistent and incomplete patchwork of slow and inadequate responses across Canada to the problem of CFL disposal.

Enter Canadian Federal Bill C-238, MP Daren Fisher’s proposal to establish a national strategy for CFL disposal.  Introduced during 2016 CELA was very supportive.  While private member’s bills rarely get passed this one did.  Unfortunately, it likely passed because it won’t do more than was already planned, that is, to keep the talkfest going.

During a single day of review last November, the Parliamentary Standing Committee on Environment and Sustainable Development removed from the bill its most important aspect.

The bill had intended to establish national standards for the safe disposal of CFLs.  This provision was replaced with “the identification of practices for facilities involved in the safe disposal of such lamps….”  In other words more talking, probably more reports, needless delay, and no requirement to act.

Such CFL disposal practices are already well-studied.  Environment Canada described them in a guidance document published in 2015.  The Canadian Council of Ministers of the Environment (CCME) has published similar guidance.  Nine years after the CCME committed to addressing this problem, the lack of action on such guidance results from a lack of political will or legal mandate to do so.

Measurable and effective action to protect the public, especially fetuses and children, from exposure to a very common source of mercury is long overdue.  There is only a small window of time to get this right – likely over the next five to ten years as these bulbs are phased out.  There is no room for further delay and inaction.

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About the Author

Kathleen Cooper is a Senior Researcher at the Canadian Environmental Law Association.  She has done environmental, health, and policy research for thirty years and joined the Canadian Environmental Law Association (CELA) in 1987.  As Senior Researcher at CELA she provides casework support to environmental litigation files and has directed several law reform campaigns.

 

This article was first published on CELA’s website.

Statutory Right to Compensation for Remediation Applies to Spills Occurring before the Right was in Force

On March 6th, 2017 Superior Court Judge P.E. Roger ruled in Huang v. Fraser Hillary’s Ltd., 2017 ONSC 1500 that section 99 of Ontario’s Environmental Protection Act R.S.O. 1990, c.E19 allowed the plaintiffs to recover compensation against a neighbouring dry cleaning business for remedial expenses for the tetrachloroethylene (PCE, PERC) and trichlorethylene (TCE) contamination of soils and groundwater on the plaintiff’s property.  The statutory right under s.99 is confined to spills which are defined in s.91(1) of the Act as “from, or out of, a structure, vehicle or other container”.  Fault or negligence is not a requirement of the statutory right to compensation under s.99.  The evidence established that the PCE/TCE moved from a structure or container into the natural environment for a 14 year period between 1960 and 1974.  The right to compensation in the Act was introduced in 1979 and only proclaimed in 1985 after the “spills” had stopped.  The Court decided that applying the statute to the spills did not amount to retrospective application.  Alternatively, the presumption against retrospective application of the law was inapplicable given that the right was designed to protect the public.  Finally and in any event, even if the presumption against retroactivity applied, it had been rebutted by clear language in the statute.

On the law being prospective in its application, the Court said at par. 84: “Allowing, at this time, a right to compensation for spills that occurred before the section came into force does not change anything done in the past.  Rather, it protects the public by creating a right to compensation and, as such, does not constitute a retrospective application.”  Alternatively, the purpose of this right was to protect the public and more particularly, innocent parties by granting a “new and powerful tool to seek compensation from the owner of the pollutant and the persons having control of the pollutant without any requirement of intent, fault, duty of care, or foreseeability.  see Midwest Properties at pars. 70, 73” (at par. 97).  In so doing, the presumption against retroactivity would not apply since the statute conferred a benefit and was not punitive.  Finally, even if the compensation provision was punitive and for that reason would not rebut the presumption of retroactivity just because it was protective of the public, the right to compensation was expressed as a present right and the definition of spills was not limited to discharges occurring after the coming into force of the section in 1985.

__________________

About the Author

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in environmental law.  He was called to the Ontario Bar in 1981. He joined the law firm of Fogler Rubinoff on July 4, 2013.  Stanley was the founder of the Canadian Nuclear Law Organization and served as its President between 2008-2015, and remains a board member.  He is also is a former President of the International Nuclear Law Association.  He has taught nuclear law for the Nuclear Energy Agency in France and is an adjunct professor for York University’s Professional Master’s Degree in Energy.  Stanley is the author of a quarterly publication entitled “The Prosecution and Defence of Environmental Offences” and edits an annual review of environmental law. Before joining Foglers Stanley served for 14 years as Assistant General Counsel to Ontario Power Generation Inc (OPG).  Prior to joining OPG, Stanley served as Deputy Director of the Law Division for Prosecutions for the Ontario Ministry of Environment.  Stanley started his legal career as a prosecutor in Toronto’s criminal courts and in that capacity had carriage of over 20 jury trials as well as a number of coroner’s inquests

Podcast on Re-Engineering Remedial Processes Cost-Efficiently

A podcast is available on re-engineering traditional remedial processes to treat soils and groundwater in order to make them more cost efficient is available on the Accelerated Remediation Technologies LLC (ART) website.

The podcast, presented by Mohamed Odah, PhD, P.E., first discusses that some traditional remedial technologies have demonstrated mixed results at reducing contamination in soil and groundwater in-situ due to geological, hydrogeological and contaminant physicochemical properties.   Many sites impacted with a wide range of contaminants are in need of comprehensive treatment measures that can simultaneously treat constituents including petroleum and chlorinated compounds along with recalcitrant constituents such as MTBE and 1,4 dioxane.

The podcast then goes to describe how the ART process combines in situ air stripping, air sparging, soil vapor extraction, enhanced bioremediation/oxidation and subsurface circulation in an innovative wellhead system.  The multiple remediation concepts combined within the ART process are well suited for volatizing organic compounds as well as recalcitrant compounds because the synergistic systems are physically and chemically attacking contaminants on a number of fronts.  The multiple, in-well stripping passes results in a high air-to-water contact ratio within the well (via stripping and sparging) which is integral to the physical removal of contamination.

Concurrently, the ART process involves a subsurface circulation process that actively mobilizes residual contamination from the soil matrix and to the well for further treatment by multiple pore volume exchanges.  The circulation and extraction processes also actively and continuously provide significant dissolved oxygen boost throughout the radius of influence, enhancing bioremediation of the hydrocarbon compounds.

Several case studies are discussed in the podcast including site specific data that exhibits the ART process efficacy in reducing petroleum and chlorinated contaminants concentrations in a short time while providing overall project cost reductions.

Webinar: Balancing the Costs of Cleanup during Remedial Planning

REGENESIS® is hosting a remediation presentation with special guest speaker, Jeffrey Carnahan, MS, LPG, Executive Vice President for EnviroForensics.  Mr. Carnahan’s presentation will cover balancing the costs of active cleanup and long-term stewardship (LTS) during remedial planning, and will include real-world examples of remedial objective decision making involving an LTS component and actual costs.  Mr. Carnahan will be presenting this live webinar on Wednesday, March 22nd at 11am pacific / 2pm eastern.

Jeff Carnahan is a Licensed Professional Geologist (LPG) with over 18 years of environmental consulting and remediation experience. As Executive Vice President, Jeff contributes to the leadership of EnviroForensics through strategic market analysis and corporate risk management, as well as continuing his technical consulting practice as an environmental expert.

 

 

ONEIA Event with Ontario Environmental Commissioner – March 28th, 2017

The Ontario Environment Industry Association (ONEIA) is pleased to announce that the Ontario Environmental Commissioner Dianne Saxe will offer her annual address to the province’s environment and cleantech industry on March 28th.

The Commissioner will join us earlier in the afternoon for a facilitated discussion where we will hear her perspective on recent developments in the Ontario waste sector.  Topics for discussion will include:

  • Where is the province going with respect to organics?
  • What will the Clean/Renewable Fuels Standard mean for companies in our sector?
  • What impact will ongoing approvals reform have on waste and Innovation?
  • How will the Commissioner’s office be examining the outcomes of new waste policies?  What should we look for in coming years?

Join us for an open discussion, then stay as the Commissioner offers remarks and meet attendees at the informal cocktail networking reception – or just come for the reception and networking.

DETAILS:

WHO: Ontario Environmental Commissioner Dianne Saxe

WHEN:  Tuesday March 28, 2017. Registration opens at 2:00 PM 3:00 – 4:30  facilitated discussion with Environmental Commissioner on resource recovery issues 4:30 – 6:30 PM  networking reception with remarks offered by Environmental Commissioner

WHERE:  Offices of Norton Rose Fulbright Canada LLP Suite 3800, Royal Bank Plaza, South Tower, 200 Bay Street, Toronto, ON, M5J 2Z4 C

OSTS: ONEIA member $99.00; not-yet ONEIA member $129.00

REGISTRATIONhttps://commissioneraddress.eventbrite.com

Webinar: Fundamentals in Site Characterization

This series will help you plan and implement effective site characterization strategies. Webinars cover both classic methods and innovative approaches to characterize soil, groundwater and soil vapour quality. Learn how to demonstrate delineation using data supported by your conceptual site model – and then go on to plan effective remediation strategies.

·        SOIL CHARACTERIZATION – April 11 & 13

·        SOIL VAPOUR CHARACTERIZATION – April 18  & 20

·        GROUNDWATER CHARACTERIZATION – April 25 & 27

Sign up for individual topics or for entire series at the GeoEnviroPro website.

Ontario Court of Appeal Makes Significant Ruling on Damages for Property Contamination

Introduction

In a decision released January 11, 2017 – Crombie Property Holdings Limited v. McColl-Frontenac Inc. et. al – the Ontario Court of Appeal overturned a summary judgment decision of the Superior Court of Justice that dismissed a civil lawsuit seeking damages for property contamination based upon the running of a limitation period. The lower court decision may be found here.

The Court of Appeal decision will be carefully scrutinized by all environmental lawyers and other civil litigators who regularly handle such claims.

Background
The lawsuit sought damages for contamination to the “Crombie Property” from an adjacent commercial property formerly used as a gas station. From the Court of Appeal’s decision, the following chronology of events may be discerned:

Date Event
2003-2005 Prior owners of the Crombie Property commission Phase 2 Environmental Site Assessments (ESA) which find evidence of    low level hydrocarbon contamination of groundwater, but indicated those levels were decreasing and recommended no further study.
2007 Testing confirms that soil and groundwater conditions at the defendant Dimtsis Property met the applicable Ministry of the  Environment (“MOE”) standards.
2008 The MOE acknowledges a Record of Site Condition. Under applicable law, the acknowledgment confirmed that the Dimtsis Property complied with environmental regulations.
2012 Crombie enters into an agreement to purchase 22 properties, including the Crombie Property subject to the lawsuit. Presumably, under the agreement, Crombie was required to waive all conditions by March 8, 2012.

2012
February 20
Crombie’s consultant Stantec tells Crombie that a gas station and dry cleaner were formerly nearby the Crombie Property.

February 27
In initial scheduling discussions, Stantec and Crombie agree that Stantec will provide a draft Phase 2 ESA for the Crombie Property by April 9, 2012, with verbal results by March 23, 2012.

February 29
Five historical reports (2003-2008) concerning contamination at the Crombie Property are provided to Crombie.
First week of March Crombie asserts that it instructed Stantec that the Phase 2 ESA is not urgent because Crombie is        waiving e-conditions and closing. Crombie claims it did not discuss or learn of Phase 2 ESA test results until draft Phase 2 delivered in May.

March 8
Crombie waives all conditions (including environmental conditions) on the purchase of the 22 properties.

March 14
Subsurface Phase 2 ESA work begins on the Crombie Property. Initially only with respect to VOC’s, but expanded to              include hydrocarbons when Stantec’s sampling noted petroleum hydrocarbon odours.

March 20
Phase 1 ESA by Stantec provided to Crombie. Stantec summarizes five historical reports and recommends drilling. Stantec also notes that hydrocarbon levels reported in the most recent of the historical reports would not meet current site condition standards.

March 23
Lab results obtained by Stantec for groundwater show exceedances.

March 30
Lab results obtained by Stantec for soil show exceedances.

April 10
Crombie becomes owner of Crombie Property.

May 9
Draft Phase 2 ESA by Stantec provided to Crombie with March lab results. Shows hydrocarbon limits exceeded in groundwater and soil. Crombie attests only learned of actual contamination on this date.

September 17
Date the final Phase 2 ESA is provided to Crombie. Crombie initially pleads in Statement of Claim that it only became aware of contamination on this date.

Standard of Review
The Court confirmed that on a summary judgment motion, the determination of the lower court that there is no genuine issue for trial is a “question of mixed fact and law.” As a result, the standard of review on appeal is whether the trial judge committed a “palpable and overriding error.”

Issue on Appeal

The narrow issue on appeal was whether Crombie’s claim in respect of the environmental contamination of its property was “discovered” within the meaning of s. 5 of the Limitations Act, 2002 before April 28, 2012 (two years prior to the commencement date of the action).

That is, the Court clarified that on the appeal before it, only actual knowledge of contamination (injury, loss, or damage under s. 5(1)(a)(i) of the Limitations Act, 2002) was at issue. The Parties did not take issue that the requirements of s. 5(1)(a)(ii) – cause of the injury, s. 5(1)(a)(iii) – identity of defendants, and s. 5(1)(a)(iv) – action is appropriate means of seeking a remedy, had been met.

The Court stressed that the test under s. 5(1) of the Limitations Act is actual knowledge, not mere possibility:

The limitation period runs from when the plaintiff is actually aware of the matters referred to in s. 5(1)(a)(i) to (iv) or when a reasonable person with the abilities and in the circumstances of the plaintiff first ought to have known of all of those matters…

It is “reasonable discoverability” and not “the mere possibility of discovery” that triggers a limitation period.[1] [emphasis added]

Equating Suspicion of Contamination with Actual Knowledge of Contamination

Under this heading, the Court ruled that the motion judge made a palpable and overriding error in concluding that mere suspicions of possible contamination were enough to trigger the running of s. 5(a)(i).

It was not sufficient for the defendants to prove that by February 29, 2012, Stantec and Crombie had Phase 2 reports for the Crombie property which showed historical contamination on the subject property six years earlier:

…At its highest, in relation to hydrocarbon contamination, the Pinchin Report revealed the presence of hydrocarbons in groundwater in 2005 that were marginally above potable water standards and appeared to be decreasing, leading Pinchin to recommend no further investigation. It was not evidence of contamination of the property over six years later, nor was it interpreted as such by Stantec, Crombie’s environmental consultant. Indeed, the purpose of the Phase II drilling and sampling program recommended and undertaken by Stantec, was to determine whether or not the soil or groundwater at the Crombie Property was contaminated.[2]

And further:

It was not sufficient that Crombie had suspicions or that there was possible contamination. The issue under s. 5(1)(a) of the Limitations Act, 2002 for when a claim is discovered, is the plaintiff’s “actual” knowledge. The suspicion of certain facts or knowledge of a potential claim may be enough to put a plaintiff on inquiry and trigger a due diligence obligation, in which case the issue is whether a reasonable person with the abilities and in the circumstances of the plaintiff ought reasonably to have discovered the claim, under s. 5(1)(b). Here, while the suspicion of contamination was sufficient to give rise to a duty of inquiry, it was not sufficient to meet the requirement for actual knowledge. The subsurface testing, while confirmatory of the appellant’s suspicions, was the mechanism by which the appellant acquired actual knowledge of the contamination. [emphasis added]

In addition, the finding by the motion judge that the contamination was in the soil and therefore “available and discoverable,” set too low a threshold for discoverability under s. 5(1)(a)(i):

The fact that contamination was there to be discovered was of course not sufficient to start the limitations clock.[3]

Failure to Consider Relevant Circumstances: the Transactional Context

Under this heading, the court found the motion judge made palpable and overriding errors on two counts. First, the lower court wrongly imputed actual knowledge of contamination to Crombie in March 2012 (when the laboratory results were sent to Stantec), contrary to the contextual evidence. Second, the court wrongly imputed reasonable discoverability of actual contamination to Crombie before April 28, 2012, again contrary to the contextual evidence.

Concerning actual knowledge, the court stated:

The fact that Crombie was directing and paying Stantec [to complete both a Phase 1 and 2 ESA] … was not sufficient to ground the [motion judge’s] conclusion that Crombie knew about the test results as soon as they were reported by the laboratory to Stantec.[4]

According to the Court, the motion judge also erred by inferring that because Stantec had verbally reported the Phase 1 findings to Crombie, that it must have also verbally reported the March 2012 laboratory results to Crombie. According to the Court, this reasoning “…ignores completely the circumstances of the multi-property transaction Crombie was involved in, the due diligence process and the waiver of conditions” and “she did not factor Crombie’s [March 8, 2012] waiver of conditions into her assessment of its conduct.” Most important, the Court accepted the plaintiff’s argument that:

Once the conditions were waived, there was no urgency to confirming whether the Crombie Property was contaminated, as Crombie was required to close the purchase. It was unreasonable for the motion judge to draw an inference about Crombie’s knowledge of the test results without considering such circumstances.[5]

The same mistake, says the Court, also caused the motion judge to err by inferring that the contamination was reasonably discoverable under s. 5(1)(b), prior to April 28, 2012:

Determining “whether the plaintiff has acted reasonably will include an analysis of not only the nature of the potential claim, but also the particular circumstances of the plaintiff.”[6]

In short, the Court of Appeal accepted that under the particular circumstances of the multi-property transaction and the waiver of all conditions (including environmental), it was reasonable for the plaintiff to not treat the Phase 2 investigation as urgent and to postpone communications around the contamination of the Crombie property until whenever it was communicated by the environmental consultant on a non-urgent basis (in this case, by May 9, 2012):

…in arriving at her conclusion that Crombie’s claim was reasonably discoverable, the motion judge did not consider the relevant and important circumstances of the multi-property transaction and its waiver of conditions. What the motion judge ought to have considered, was whether, a reasonable person in Crombie’s position, after the waiver of conditions, would have sought out and obtained the laboratory results before April 28, 2012.[7]

Continuing Tort

Regarding the continuing tort argument made by the appellant, the Court found it unnecessary to address this issue and declined to do so.

Analysis

The Court of Appeal’s decision is noteworthy, and also problematic, in a number of respects:

  1. It confirms existing authority that summary judgment decisions make rulings of “mixed fact and law”, and are only appealable if there is a “palpable and overriding error.”
  2. It affirms that a Phase 1 ESA is generally not enough to prove knowledge of actual contamination, only “suspicions” or the “possibility” of such contamination. However, if the Phase 1 ESA provides knowledge of a potential claim, this may “trigger a due diligence obligation”, a “duty of inquiry”, to undertake a Phase 2 ESA.
  3. More controversially, however, the Court’s decision suggests that even where there exists a due diligence obligation or duty of inquiry to undertake a Phase 2 ESA, the party contracting for that work, or its consultant, may unilaterally decide when to discharge the duty.

In this case, a significant number of historic records were disclosed to a prospective purchaser and its environmental consultant, showing that the property in question was definitely contaminated, six years earlier, at levels that would not meet current standards (but perhaps were getting better). However, simply because the plaintiff’s consultant opined that the historic records did not prove current contamination and recommended further drilling and testing (a full Phase 2 ESA), this effectively prevented a court from finding “actual knowledge” of damage, and stopped the running of the limitation period.

This raises the important question of how much knowledge equals actual “discovery” of damage under s. 5(1) of the Limitations Act, 2002? The statute states that “A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known.” But surely, interpreted purposively, the statute is only requiring a level of knowledge sufficient to sustain a civil action, i.e. on balance of probabilities? Why, under this statute, must damage be confirmed 100% by current testing, as required by the Court of Appeal? It must be noted that s. 5(1) does not use the term “actual.”

Moreover, by setting the standard for discovery so high, query whether the Court of Appeal’s decision effectively makes s. 5(1)(b) meaningless? That is, even in the face of historical evidence of contamination, does the court not permit plaintiffs to arbitrarily delay the triggering the start of the limitation period, by unilaterally requesting confirmatory evidence of injury, loss or damage, and requesting that the delivery of such confirmatory evidence be delayed?

Also, given consultants – who are generally paid by the hour (like lawyers) – will invariably recommend that they should be retained to conduct more (and more current) testing, and this is often an approach favoured by the Ministry, one may ask what amount of historic evidence of contamination of a subject property will ever be enough to trigger the running of a limitation period? It must be noted that the plaintiffs in this case were willing to commence this action on April 28, 2014, based on evidence of contamination that was more than two years old. If six year old evidence is too old to prove damage, why is two year old evidence acceptable?

  1. Also raising as many questions as it answers, is the Court of Appeal’s ruling on “reasonable discoverability”. According to the Court, even where both a Phase 1 and 2 ESA have been recommended and commissioned, due to a well-known risk of historic contamination from adjacent properties, and clear and current test results are going to be obtained by the purchaser’s consultant before closing, a purchaser is entitled to defer and delay not only the completion of the Phase 2 ESA but more problematically, also the transmission of the test results from its own consultant to purchaser, and may still be found to have acted “reasonably” or with “reasonable diligence.” According to the Court, for a purchaser to do so it need only announce to its consultant that it intends to “waive” environmental conditions and, as a result, it no longer needs those test results urgently.

Query whether the Court of Appeal has assumed that the standard of urgency for “reasonable discoverability” is whether damage information is needed to close a real estate deal? By accepting, without further analysis, that a purchaser may delay (indefinitely?) receipt of damage information because it is not needed for closing, that seems to be what the Court has done.

A strong argument may be made that the Limitations Act, 2002, interpreted purposively, is not concerned with what is reasonably discoverable in order to close a real estate deal; rather, it is concerned with protecting defendants from unreasonable delay by forcing plaintiffs to commence their civil actions within two years after they are “actually” damaged, or alternatively (under s. 5(1)(b)), after they first ought to have known that they were actually damaged.  In this case, arguably, the date on which the plaintiff was actually damaged was the date of closing – April 10, 2012 – when it became the owner of a contaminated property. Although the plaintiff takes the position that it did not “actually know” that the Crombie Property was contaminated on this date, it certainly knew that there was a very significant risk it had acquired a contaminated property on this date. Shouldn’t a reasonably diligent purchaser have asked its consultant to provide all available test results as soon after the closing date as possible?

In other words, it may be argued that the date upon which a purchaser comes into ownership of a property and faces a real risk that it has just acquired a contaminated property and has suffered injury, damage or loss, should be the date on which that reasonably diligent purchaser insists upon receiving all available laboratory test results.

However, the Court does not consider the above issue.  Instead, it appears to assume that because the purchaser decided (in early March) that it did not need this information for the purposes of completing the real estate closing, it also did not need this information for the purposes of satisfying its reasonable discoverability obligations under the Limitations Act, 2002.  Had the Court broadened its consideration of “context” to one that was relevant to the purpose of the Act, it may have come to a very different result.

Put differently, this author would respectfully submit that when a court is considering the “context” of a real estate transaction for determining when damage was “reasonably discoverable” by a plaintiff/purchaser under the Limitations Act, 2002, it ought not to arbitrarily stop its analysis at the point at which a purchaser chooses to close its eyes to environmental test results in order to waive environmental conditions to complete a transaction. The court should also consider whether the decision of a plaintiff/purchaser to close its eyes to actual, available test results, is itself reasonable and reasonably diligent within the meaning of the Limitations Act, 2002, in light of when the plaintiff/purchaser knows it will be closing (will become owner) and could suffer damages, given all known risks.  Unfortunately, the Court of Appeal did not undertake this broader analysis.

Since the parties have until Monday, March 13, 2017 to serve and file an application for leave to appeal to the Supreme Court of Canada, it is too early to say whether the Court of Appeal’s ruling will be the last word on these issues.

About the Author

 

Jack Coop is a Partner with the Litigation Department of Fogler, Rubinoff LLP, and a Certified Specialist in Environmental Law.

This article is re-published with the permission of Fogler, Rubinoff LLP.

 

This publication is intended for general information purposes only and should not be relied upon as legal advice.

© FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED, 2017.

[1] Court of Appeal Decision, para. 35.

[2] Ibid., para. 41.

[3] Ibid., para. 47.

[4] Ibid., para. 43.

[5] Ibid., para. 50.

[6] Ibid., para. 51.

[7] Ibid., para. 52.

Health & Safety Conference & Trade Show – Toronto, May 2-3, 2017

Workplace Safety and Prevention Services is hosting Partners in Prevention 2017 Conference and Trade on May 2nd and 3rd.  The event will be held at the International Centre in Mississauga, Ontario.  The conference features two days of keynote speakers, cutting-edge sessions, workshops and professional development courses.  Also included is a trade show with over 410 booths highlighting the latest in market trends, workplace products and services, and interactive experiences for the health and safety professionals.

May 2 – 3, 2017
The International Centre
Mississauga, Ontario

 

“The New Workplace” is the theme of the conference.  The Partners in Prevention Conference and Trade Show is  Canada’s largest and longest-running health and safety conference and trade show.  

For the 2017 Conference, keynote speakers will include:

  • Neil Pasricha, award winning blogger and New York Times best-selling author of The Book of Awesome and The Happiness Equation: Want Nothing + Do Anything = Have Everything – Neil Pasricha dazzles audiences with ideas and frameworks that promote happiness.
  • Curt Steinhorst, Distraction Expert – Having spent years studying the impact of tech on human behavior, Curt Steinhorst is on a mission to help today’s workforce win the battle against digital distractions.
  • Steven Page, Canadian singer, songwriter and recording artist – Having spent two decades with The Barenaked Ladies, Steven Page is now an outspoken advocate for mental health awareness.

Participants can choose from two-day, one-day and trade show only (free until April 14) registrations, as well as individual pricing for professional development courses.

For more information or to register, visit www.PartnersinPreventionConference.comor contact the WSPS Customer Care Department: toll-free at 1-877-494-9777 orcustomercare@wsps.ca.

Workplace Safety & Prevention Services (WSPS) is a leader in providing impactful risk management solutions that drive lasting business success for our customers.  WSPS offers health and safety expertise, insight and solutions for creating healthy work environments where employees thrive and businesses prosper.  WSPS is a $43-million organization servicing 154,000 member firms.  WSPS is primarily focused on the agricultural, industrial/manufacturing and service sectors.

 

Law Moot on Legal Liabilities associated with Contaminated Sites

Willms & Shier Environmental Law Moot will be held on March 4, 2017 at the Ontario Court of Appeal, Osgoode Hall, in Toronto.  The Law Moot may be of interested to professionals that deal with contaminated sites as the moot case is based on the 2015 Ontario Court of Appeal decision in Midwest Properties Ltd. v Thordarson.  This case sets an important precedent about legal liabilities associated with soil and groundwater contamination.

About the Moot

The Willms & Shier Environmental Law Moot, Canada’s first national moot court competition devoted to environmental law, is a joint initiative of Willms & Shier Environmental Lawyers LLP and Osgoode Hall Law School.  The Moot competition brings together law school students, leading environmental law practitioners and judges from all levels of court across Canada.

Program—A full day event on March 4, 2017, beginning with moot rounds early in the morning, semi-final and final rounds in the afternoon, and finishing with an evening networking event and the moot awards dinner in the Law Society of Upper Canada’s Convocation Hall

Schools —Law schools from coast to coast will register for the 2017 Moot

Distinguishing Feature — Students must argue both sides of the case. In the preliminary round, the students will start in their first match on one side of the argument, and then switch to the other side for their second match. This switching of sides requires students to exhibit mental agility under pressure.

The 2017 Moot Court Case

This year’s moot case is based on the 2015 Ontario Court of Appeal decision in Midwest Properties Ltd. v Thordarson. This case sets an important precedent about legal liabilities associated with soil and groundwater contamination.

Midwest Properties Ltd. and Thorco Contracting Limited own adjoining properties in an industrial area of Toronto. Thorco historically stored large volumes of petroleum hydrocarbons (“PHCs”) at its property.

Prior to its purchase of the property, Midwest obtained a Phase I Environmental Site Assessment of the property and was advised that further investigation was not required. Subsequently, Midwest discovered that PHC contamination had migrated to the Midwest property from the Thorco property. Midwest sued Thorco and Thorco’s principal, John Thordarson, relying upon three causes of action: (i) breach of Ontario’s Environmental Protection Act (“EPA”) section 99(2), (ii) nuisance, and (iii) negligence.

Between 1988 and 2011, Thorco was in breach of Orders issued by the Ministry of the Environment and Climate Change. In 2000, Thorco and Mr. Thordarson were convicted of offences under the EPA and a Court Order was issued requiring removal of waste. At the time of trial, the respondents were in breach of both Ministry and Court orders.

At trial, Thorco and Mr. Thordarson were unsuccessful under all causes of action.  On appeal, the Court found Thorco and Thordarson jointly and severally liable under all causes of action. Further, the Court of Appeal held that EPA section 99(2) is a separate and distinct ground of liability for polluters. The Court awarded $1.3 million in damages and $100,000 in punitive damages ($50,000 each) from Thorco and Mr. Thordarson. Leave to appeal to the Supreme Court of Canada was denied.

Opportunities within the European Hazardous Waste Management Market

A recent market report from Frost & Sullivan found that incentives to implement sustainable manufacturing practices resulted in impetus to market growth for hazardous waste management.

Communication and semiconductor technologies such as global positioning systems (GPS) and radio frequency identification (RFID) are opening up vast revenue opportunities in the hazardous waste management services market in Europe.  For instance, routing software is improving cost controls, enabling industry players to adopt an aggressive pricing strategy that is creating a more competitive market.

“The deployment of smart data solutions can significantly enhance the efficiency of the collection and the treatment of hazardous waste,” said Frost & Sullivan Energy & Environment Research Analyst Akshaya Gomatam Ramachandran.  “With effective waste minimisation at source, total hazardous waste volumes are anticipated to decrease from 72.8 million tonnes in 2016 to 66.9 million tonnes in 2021.  However, the price per ton will increase with the rising investments in technology.”

European Hazardous Waste Management Services Market is part of Frost & Sullivan’s Environment & Water Growth Partnership Subscription.  The study segments the treatment methods into recycling, thermal treatment, other hazardous waste treatment, and landfill.  It highlights the latest trends, drivers and restraints that are influencing the market, while detailing the current amount of hazardous waste generated, collected and treated in all European countries.  Related topics covered by the subscription include water and wastewater management, environmental services, water value chain, smart water meter and residential water softener solutions.

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