Davis LLP - Municipal & Planning Law Blog

Bill 76 passes in Quebec - Municipal contract allocation rules tightened

Tue, 23 Feb 2010 10:08:00 EST

Following public outcry in late 2008 regarding contract allocation in the municipal sector and the government's undertaking to remedy the issue, the government of Quebec yesterday passed Bill 76 (French Only). The bill effectively amends all of ten major statutes applicable to the municipal sector and aims to ensure greater transparency and predictability to the province's municipal contract allocation process.

This new legislation notably includes:

* an obligation to provide citizens with more information about municipal contracts awarded by a municipality;

* greater leeway for Ministry auditors;

* an obligation for municipalities to provide all information required for the performance of effective audits;

* an obligation not to disclose the names of tendering parties prior to the opening of quotes;

* an obligation for municipalities to adopt contract management policies which include various anti-corruption measures.

More specifically, the bill creates an obligation for municipalities to prepare an estimate for all contracts expected to be in excess of $100,000 and to maintain an easy to understand, comprehensive and accessible list via Internet for all contracts awarded in excess of $25,000. Also, payments representing 10% or more on any such contracts in excess of $25,000 cannot be made prior to publication of basic information regarding the contract, the tendering parties and prices quoted by all parties. Lastly, information regarding the actual cost to execute a contract must be published as soon as possible following completion and all published information must remain available and posted for a period of at least 3 years.

In addition to Bill 76 and as part of its ongoing efforts regarding ethics in the public sector, the government expects to pass another bill during the Quebec legislature's 2010 spring session which would also create an obligation for all municipalities to adopt a code of ethics.

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Stricter Air Emissions Standards in Ontario

Thu, 04 Feb 2010 10:10:00 EST

On February 1, 2010, changes to Ontario Regulation 419/05, Air Polution - Local Air Quality (O.Reg. 419/05), came into effect. These changes require industrial facilities to meet stricter air standards for 33 contaminants.

The changes include a reduction in lead and acetone by approximately 75 per cent, the creation of standards for acetonitrile and methyl isocyanate, and a reduction of xylenes by almost two-thirds. The Government of Ontario has indicated that the purpose of these changes is to "better protect air quality and health in local communities".

The news release of the Government of Ontario which provides an overview of these changes, and a list of the 33 contaminants, can be accessed here.

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Changes to the Regulations Under the Planning Act (Ontario) Regarding Propane Operations

Mon, 01 Feb 2010 10:14:00 EST

Changes have been made to the following regulations under the Planning Act (Ontario): Ontario Regulation 543/06: Official Plans and Plan Amendments; Ontario Regulation 545/06: Zoning By-Laws, Holding By-Laws and Interim Control By-Laws; Ontario Regulation 544/06: Plans of Subdivision; and, Ontario Regulation 200/96: Minor Variance Applications.

The changes are intended to support recommendation 14 of the Propane Safety Review, to require that propane operators be notified of applications for official plan amendments, plans of subdivision, rezoning and minor variances where the propane operation's defined hazard distance extends into the area under consideration for the land use application. Definitions for "hazard distance", propane operator" and "propane operation" have been added to each of the above regulations, and changes to the notification requirements in each of the regulations have been made to reflect this recommendation. A propane operation's "hazard distance" is established as part of the propane operation's risk and safety management plan, required by Ontario Regulation 211/01: Propane Storage and Handling under the Technical Standards and Safety Act, 2000 (Ontario).

It is anticipated that Ontario Municipal Board directions for public notice will now include such propane operators. To assist in this process, a drawing in the form of a map or plan signed off by a professional engineer from each propane operation's risk and safety management plan must be forwarded to the relevant municipality, which shows:

* the propane operation including the location and size of the largest vessel and its setback from the front, rear, and side property lines;

* its associated hazard distance;

* visual indication of hazard distance as a circle (radius = hazard distance) around the largest vessel along with a clear marking of the municipalities falling within the hazard distance;

* the address and contact information (municipal clerk or secretary-treasurers of planning board) for each municipality (including if applicable, both lower- and upper-tier municipalities) identified in the drawing;

* GIS co-ordinates, property line information, and the location and name of any roads within or abutting the site to properly identify the propane operation's location, its hazard distance and the municipalities; and

* a key note to the drawing to indicate the facility's municipal address, municipal lot number(s) and concession lines as applicable, and the date the drawing was prepared.

For more information, consult the following Technical Standards & Safety Authority Advisory Sheet FS - 162-09: Advisory Sheet FS - 162-09

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Ontario MOE New Approvals Initiative

Fri, 29 Jan 2010 10:59:00 EST

The Ontario Ministry of the Environment ("MOE") has undertaken a new initiative to modernize the environmental approvals process. Lower-risk activities will have a simplified approval process and approvals for higher-risk activities will be done more quickly. Throughout these new processes, the MOE suggests that environmental standards and protection will be maintained and improved. The objective is to introduce the new approval process over the next three years. Simplified approvals for lower-risk environmental activities will be a rules-based environmental registry process. The higher-risk environmental activities will involve applying for a new Certificate of Approval.

In February, 2010 the MOE will begin formal consultations which will result in discussion documents posted on the Environmental Registry of the Environmental Bill of Rights. Consultations will include a roundtable of experts from the business community and environmental organizations.

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Supreme Court of Canada Strengthens Federal Environmental Assessment Provisions

Fri, 22 Jan 2010 09:48:00 EST

The Supreme Court of Canada found in a decision released on January 21, 2010 that the responsible authority cannot just conduct an environmental assessment screening study for a project listed on the Comprehensive Study List. In a unanimous decision of a 7-member panel in the case of MiningWatch Canada v. Minister of Fisheries and Oceans et al. the court held that the Canadian Environmental Assessment Act and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a responsible authority to change that level. The responsible authority was free to use any and all federal-provincial coordination tools available, but it was still required to comply with the provisions of the Canadian Environmental Assessment Act pertaining to comprehensive studies. By conducting only a screening study, the responsible authority acted without statutory authority.

A link to the full decision is provided here.

David Crocker

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More Environmental Regulation by Municipalities

Thu, 21 Jan 2010 16:48:00 EST

The Town of Oakville is venturing into the realm of regulating environmental issues. It recently announced that Council will consider a by-law for the reporting and regulation of the amount of fine particulate companies can emit in Oakville. A copy of the proposed by-law can be found by clicking here. This would seem to be part of an increasing trend by municipalities to regulate environmental issues within their boundaries. Toronto has recently implemented restrictions on pesticide use, a requirement for businesses to charge for plastic bags and a Toxics Right to Know by-law that requires businesses to annually file public reports on their environmental releases of 25 toxic substances of "priority health concern".

Oakville's proposed by-law goes much further than the Toronto by-law. If passed in its current form, the by-law would impact proposed and existing facilities with or without Ministry of the Environment Certificates of Approval for air emissions. Existing facilities that may cause or increase a major emission to air and that have an MOE Certificate of Approval are required to apply to the Town within 12 months for a facility-specific approval. The application will require modelling of fine particulate emissions from the facility and in relation to existing levels of fine particulate emissions present in the airshed, mapping, assessment and appraisal. A $25,000 fee is required to accompany the application (ostensibly to pay for a Town peer review of the application). Following peer review, the Town is required to engage in public and agency consultation on the application including a public meeting. Thereafter, Council shall make one of the following decisions:

(a) Where, following consideration of the application, Council concludes that the major emission does not have a significant public health effect on the Town, Council may approve the application, with such conditions as Council considers necessary to meet this standard; or

(b) Where, following consideration of the application, Council concludes that the major emissions has a significant public health effect on the Town, Council shall

(i) refuse to approve the application and, in such case, also decide that in its opinion the applicant's major emission constitutes a public nuisance; or

(ii)approve the application on the basis that the public interest favours allowing the applicant's major emission to occur, with such conditions as Council considers necessary to address the public interest.

One has to wonder how "public interest" will be interpreted.

The regulatory thresholds in the proposed by-law vary considerably from the Toxics Reduction Act (Ontario) and the National Pollutant Release Inventory (Canada) for the precursor pollutants.

It is also worth noting that there is no appeals process and significant fines may be levied if a company fails to comply with the by-law including operating without an approved application. The proposed by-law provides for a fine of up to $100,000 for a first offence. The subsequent offence provisions are vague but would appear to be $10,000 per day or part of a day upon which the offence occurs.

Some have speculated that the by-law may be the latest missive in a dispute between Oakville and the Ontario Power Authority regarding the construction of a new 900-megawatt gas fired power plant in the Town. A review of the Town website confirms that the by-law is in direct response to the new power plant.

According to materials produced by the Town, the rationale behind the by-law is to protect the health of Oakville residents from the effects of fine particulate matters by collecting information on industrial emissions of fine particulate and implementing regulatory controls for "major emitters." However, the by-law does not address other sources of fine particulate emissions, such as vehicular and residential emissions, which account for two-thirds of the fine particulate in the air according to statements made by Oakville representatives.

While the objective may be laudable, the by-law leaves much to the discretion of the Town, and Town Council in particular. For example, the definitions of "assessment", "precursor pollutant" and "volatile organic compounds" can be defined by the Town and it is up to Town Council to determine whether a major emission has a significant public health effect on the Town, the necessary conditions that should be imposed on a major emitter (whether it has a significant public health effect or not) and whether the public interest overrides a significant public health effect on the Town.

Consultation with some affected businesses was held on January 19th. A public session is scheduled for tonight and comments are required by January 25. The matter is expected to proceed to Council only a week later on February 1, 2010.

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New legislation: Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (Ontario)

Thu, 14 Jan 2010 14:24:00 EST

On a date to be proclaimed, the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (Ontario) will come into force. This Act received Royal assent as part of the Good Government Act, 2009 passed on December 15, 2009.

The Act applies to prescribed adjudicative tribunals. Such tribunals will be prescribed as part of the regulations, which have yet to be promulgated. The Act sets out several public accountability documents that are to be drafted by each adjudicative tribunal, including a mandate and mission statement, a public consultation policy, a service standard policy, an ethics plan, and a member accountability framework.

* The consultation plan must describe whether and how the tribunal will consult with the public when it is considering changes to its rules or policies.

* The service standard policy must set out the standards of service that the tribunal intends to provide and a process for making, reviewing and responding to complaints about the tribunal's service.

* The member accountability framework must contain a description of the functions of the members of the tribunal and a description of the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed as a member of the tribunal as well as a code of conduct for the members of the tribunal.

The Act also requires adjudicative tribunals to prepare governance accountability documents, including a memorandum of understanding, a business plan and an annual report.

The memorandum of understanding is to be entered into with its responsible minister and must contain the financial, staffing and administrative arrangements for the tribunal, the accountability relationships of the tribunal, the recruitment, orientation and training of the tribunal's members and the tribunal's planning and reporting requirements.

Where the adjudicative tribunal is part of a "cluster", the mandated public accountability documents and governance accountability documents must be jointly developed, prepared and entered into.

Recently, the Assessment Review Board, Board of Negotiation, Conservation Review Board, Environmental Review Tribunal, and Ontario Municipal Board were arranged into a cluster, called the Environment and Land Tribunals, under the oversight of Michael Gottheil. Mr. Gottheil acts as the new cross-appointed Chair, accountable for all the Environment and Land Tribunals. His office is intended to be responsible for the detailed Memorandum of Understanding with the Minister to govern the management of the cluster.

Such restructuring is intended to help reduce hearing time, writing time and disposition time, promote efficient use of administrative and professional support, enhance consistency in tribunal practices, procedures and decision making, and increase transparency and community engagement.

Until the Regulations or Directives provide more detail as to the content of the public accountability and governance accountability documents, it is not entirely clear how such laudable goals will be achieved. For example, will the tribunals set hard turnaround dates for dispositions? Will decisions from all the tribunals be available electronically? Currently access standards vary across the Environment and Land Tribunals from comprehensive to non-existent. Without more concrete requirements, it is difficult to project the effectiveness of these reforms in promoting accountability, transparency and consistency.

The Act also provides for a selection process for the appointment of members to adjudicative tribunals. The process is to be competitive, merit-based and public, and candidates are to assessed based on prescribed criteria, including:

* Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal;

* Aptitude for impartial adjudication;

* Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal's rules.

The public recruitment process must also set out the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed a board member. This process appears to only apply to the appointment process, not to reappointments of members. Reappointments do not appear to require a further competitive process. However, every reappointment requires the recommendation of the Chair who is to be consulted on these prescribed criteria. There has also not been any cap placed on the number of times a member can be reappointed, which follows the recommendations set out in comments received on the draft legislation.

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Significant Amendments to Ontario's Brownfields Regime

Wed, 13 Jan 2010 15:48:00 EST

As announced here last week, the Ontario government has quietly adopted significant and long-awaited changes to the brownfields regulation, O. Reg. 153/04 (Records of Site Condition). The amending regulation was made December 9 and filed December 29 with no fanfare. Not even a press release can be found on Ontario government websites. Some of the changes were the subject of extensive consultation with stakeholders over the past several years. However, other changes are brand new and will take some time to digest.

The most significant change is the introduction of new "Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act." These are standards for determining whether a property is "clean enough" for an intended land use. The new standards, which were only posted on the Environmental Registry last week, are dated July 29, 2009. However, the new standards do not take effect until July 1, 2011. They provide for more stringent standards for many chemical parameters. In addition, standards have been added for parameters that were not included in the previous version of the standards dated March 9, 2004. As a result of the more stringent standards for many parameters, it is widely expected that the redevelopment of brownfield sites will be more time-consuming and costly than in the past. This would seem to run counter to the stated intention behind the Regulation to facilitate the reuse of brownfields properties.

The amendments, many of which do not take effect until July 1, 2011, can be grouped into the following 5 areas:

1. Record of Site Condition Integrity

A Record of Site Condition (an "RSC") must be filed whenever property use changes to a more sensitive use as determined under Part XV.1 of the Environmental Protection Act and O. Reg. 153/04. The Ministry says that the amendments pertaining to the filing of RSCs will result in consistency in environmental site assessments leading to greater confidence in RSCs. The changes include:

* Specified minimum requirements for conducting and supervising Phase One and Phase Two environmental site assessments

* Changes to the RSC submission and filing process, including provision for the Ministry to conduct a technical review before the RSC can be filed.

* New conflict of interest restrictions for qualified persons who conduct environmental site assessments.

2. Streamlined Risk Assessment

Risk assessment is an option for property owners who want to file an RSC when their property does not meet the generic site condition standards. It can be very time-consuming to obtain Ministry approval of a full risk assessment. As such, the Ministry has introduced a streamlined risk assessment process intended to expedite brownfields development. Once the amendments are in effect July 1, 2011, a modified generic risk assessment can be prepared using a web-based approved model.

3. New Standards

The March 9, 2004 standards were based on science available prior to 1996 and required updating. In March 2007 proposed new standards were posted on the Environmental Registry. Many concerns with the proposed standards were raised by stakeholders and the scientific community. Further changes were made and another set of proposed standards were posted in October 2008. The final form of the standards can be found in a document dated July 27, 2009 and posted on the Environmental Registry last week. The Ministry says the new standards "reflect changes made as a result of comments received from both postings and consultations with stakeholders and the brownfields redevelopment community. The amendments update standards to reflect advances in science, strengthen protection of human health and the environment and increase confidence in RSCs."

The changes that will take effect July 1, 2011 include:

* Improved models for soil and ground water

* Protection for additional ecological species

* Updated toxicity information

* New standards for several contaminants:

o Dichlorodifluoromethane

o Dioxane - 1, 4

o Hexane (b)

o Petroleum Hydrocarbons in non-potable groundwater

o Trichlorofluoromethane

o Uranium

* As well, standards for shallow soil properties and properties within 30m of a water body have been clarified with two new tables applying to shallow soil properties and two new tables will apply to properties within 30m of a water body

4. Complementary Amendments

A series of additional amendments have been made for the stated purpose of supporting the overall goal of brownfields reform by clarifying various technical matters for property owners and people supervising or conducting environmental site assessments or site remediation activities. These amendments pertaining to soil brought to an RSC property include the following provisions:

* Soil may be brought to an RSC property provided it will meet the applicable generic standards or standards specified in an approved Risk Assessment for the property that includes a soil management plan.

* Soil can be brought to any RSC property if it meets the standards in Table 1 of the Soil, Ground Water and Sediment Standards.

* Soil samples must be collected and analyzed before the soil is brought to the property.

The amendments set conditions on the properties to which soil may be brought (other than where the soil meets Table 1 standards) to reduce the likelihood that soil with contaminants present will be brought to a property where none previously existed. These conditions include:

1. The property is being used or was used in whole or part as an industrial property or a specified commercial property (e.g. gas station, dry cleaners);

2. A potentially contaminating activity on, in or under the property has been identified as occurring or having occurred;

3. No previous RSC has been filed, and

4. A contaminant of concern has been identified.

5. Implementation and Transition

In general, the regulatory amendments are intended to come into effect on July 1, 2011. For RSCs that have already been filed, a change in standards or other regulatory rules will not impact them. Furthermore, all existing RSCs will continue to provide owners the same limited immunity from Ministry orders as in the past. However, moving forward, the Ministry will require that the new rules must be met.

The amended Regulation includes transition rules, which purport to provide a balanced and fair approach to implementing the amendments. They recognize that some complex redevelopment projects that may be underway will not have reached the stage of submitting RSCs prior to July 1, 2011, when the amended regulation comes into effect. As a result, the transition rules allow a property owner to continue to submit a RSC based on the March 9, 2004 standards allowing additional time to complete projects beyond July 1, 2011, if necessary, provided the owner follows the rules and submits an RSC before January 1, 2013. In order to take advantage of transition provisions, notice has to be provided to the Ministry between July 1, 2010 and December 31, 2010 and the owner must certify that certain requirements have been met.

Click here for a link to the posting of the amended Regulation on the Environmental Registry.

Please contact any member of our Municipal, Planning and Environmental Law group if you have questions about how the amended Regulation will impact you or your business.

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Amendments to the Clean Water Act, 2006 Technical Rules: Assessment Report

Thu, 07 Jan 2010 14:30:00 EST

On November 16, 2009 amendments to the "Clean Water Act, 2006 Technical Rules: Assessment Report" were finalized by the MOE and posted on the EBR at EBR Posting.

The Clean Water Act requires the development of science-based Assessment Reports to support the preparation of Source Protection Plans and policies by Source Protection Committees in each of the source protection areas in Ontario. The contents of Assessment Reports are set out in the Clean Water Act, its Regulation 287/07 and the Technical Rules: Assessment Report, which also stipulates the various methodologies that can be applied in drafting such Reports. Assessment Reports must identify and evaluate the vulnerability of groundwater and surface water, consider the activities or conditions that threaten such drinking water sources, and apply a rank to each of the identified threats. The amendments are intended to provide more clarity with respect to the content of Assessment Reports and to provide more flexibility to Source Protection Committees to address local conditions.

For the development of Assessment Reports and Source Protection Plans, the Clean Water Act first requires the preparation of Terms of Reference, to establish the relationships and division of responsibilities between the municipalities, conservation authorities and Source Protection Committees, as well as to identify drinking water sources in a source protection area. Terms of Reference documents are being prepared for each of the 40 source protection areas in the province. The Minister approved a number of Terms of Reference documents in July and August of 2009, including for the Toronto and Region Source Protection Area, the Central Lake Ontario Source Protection Area, the Credit Valley Source Protection Area, the Grand River Source Protection Area, the Nottawasaga Valley Source Protection Area and several others.

For Source Protection Committees with approved Terms of Reference documents, the newly amended Technical Rules: Assessment Report will be followed in the Assessment Report preparation and consultation process. As Assessment Reports must be completed within 12 months of a Terms of Reference approval, it is anticipated that Assessment Reports will be submitted for approval throughout 2010, with Source Protection Plans to be submitted to the MOE in 2012.

For more information on the Technical Rules and its amendments, the Clean Water Act or the preparation and implementation of Source Protection Plans, please consult the following links:

Technical Rules as of Nov 16, 2009

Ontario clean water webpage

Technical Rules Glossary

Source Protection Fact Sheet

MOE News Release

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Ontario Record of Site Condition regulations substantially amended

Mon, 04 Jan 2010 17:59:00 EST

On December 9, 2009 significant amendments to O. Reg. 153/04 (Records of Site Condition) were made. They were filed on December 29, 2009. The road to a successful risk assessment has become much more prescriptive.

Descriptions of the changes may be found in the Ontario Ministry of the Environment's Overview of Amendments to Ontario Regulation 153/04 and the Ministry of Municipal Affairs and Housing's Stepping up Ontario's Action on Brownfields: New Regulations and Standards pamphlet.

The reforms are intended to achieve the following:

* create a more predictable and transparent (and prescriptive) process for submitting records of site condition ("RSCs") by clarifying what environmental site assessment work must be done to submit a RSC and allowing the Province to check and in some cases review the integrity of submissions before a RSC is filed to the Registry;

* improve the protection of human health and the environment by providing updated soil, sediment and groundwater standards based on new science;

* offer a more timely and cost effective approval in some circumstances by implementing a new "modified generic" or streamlined risk assessment as an alternative to meeting generic standards and completing the traditional risk assessment process;

* clarify liability for property owners by allowing those who have not caused pollution to enjoy the protection RSCs give from provincial orders so long as contaminants do not migrate beyond the property boundaries above specified levels, and provided that the owners meet other conditions for protection.

The Ministry of the Environment and other ministries are in the process of developing new guidelines to accompany the regulatory reforms. Several fact sheets and other background information are available on the EBR posting for the amendments.

Stay tuned for further details.

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Minister Prentice Tables Environmental Enforcement Bill

Tue, 10 Mar 2009 13:38:00 EDT

Posted by Jonathan Cummings and Jennifer Cleall

On March 4, 2009, the Minister of Environment, Jim Prentice, introduced the Environmental Enforcement Bill (the "Bill") in an effort to constrain poachers, wildlife smugglers and polluters through the use of more comprehensive enforcement tools and increased fines.

The Bill seeks to enhance effectiveness and enforcement of environmental legislation by making amendments to 9 existing acts: the Canada Wildlife Act; the Canadian Environmental Protection Act, 1999; the Migratory Birds Convention Act, 1994; the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act; the Antarctic Environmental Protection Act; the Canada Parks Act, the International River Improvements Act; the Saguenay-St. Lawrence Marine Park Act; and the Canada National Marine Conservation Areas Act (the "Acts").

One of the of the primary changes to be instituted in the Acts is the introduction of minimum fines for serious offences and the increase of maximum fines, the proceeds of which will be paid into an Environmental Damages Fund supporting local environmental initiatives or research.

The Bill includes the identification of clear objectives for sentencing related to environmental offences, these being deterrence, denunciation and restoration. Another change made by the Bill is the enumeration of what will be considered aggravating factors or mitigating factors when sentencing. As well, the Bill institutes higher ranges of fines for corporate offenders. In conjunction with this, it establishes a public registry on which all corporate offenders are to be listed and requires all convicted corporate offenders to notify their shareholders of their conviction(s).

The changes to the Acts will also input harsher penalties for repeat offenders, such as double fines, and will allow for the suspension and abrogation of permits, authorizations and licenses of offenders upon conviction. The changes provide for the creation of regulatory fines for less serious offenses, streamlining the process and enabling the quick punishment of offences which would otherwise unnecessarily consume resources or be ignored.

In the view of accomplishing such new and effective methods of enforcement the Bill also proposes that there be an increase in funding and an increase in the hiring of another 106 enforcement officers.

Read the full press release here. See Environment Canada's website for a more detailed overview of the Bill or of the new penalties and sentencing which go along with it.

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OSC releases Staff Notice calling for improved environmental disclosure

Wed, 02 Apr 2008 17:46:00 EDT

Reporting issuers must improve their disclosure of known and contingent environmental liabilities in continuous disclosure documents. That is the message of the Ontario Securities Commission's Staff Notice 51-716 on Environmental Reporting (the 'Staff Notice'), released February 27, 2008.

The Staff Notice is based in part on a survey of 35 reporting issuers. The OSC found that the majority of these issuers had made insufficient disclosure of material environmental matters in their annual financial statements, management discussion and analysis (MD&A), and annual information forms (AIF), as applicable. The Staff Notice is critical of the use of boilerplate language to address environmental matters. Instead, it calls for disclosure of known and contingent environmental liabilities that is sufficiently detailed to allow investors to make informed decisions about buying, selling, or holding the securities of the issuer. To be sufficient, the disclosure must include not only a detailed discussion of the environmental liabilities, but also quantitative estimates of those liabilities, where quantitative information is 'reasonably available.'

Environmental disclosure has been required for some time pursuant to National Instrument 51-102 Continuous Disclosure Obligations. However, this is the first time that the OSC has provided specific guidance on exactly what type of disclosure is required. Such Staff Notices are typically the OSC's first volley when attempting to improve compliance with a particular aspect of securities regulations. Non-compliant reporting issuers can expect OSC enforcement actions, and the shareholder litigation they trigger, to follow.

A more detailed discussion of the Staff Notice is available in our Davis LLP online bulletin.

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Key Kearl oil sands permit dries up in wake of Federal Court decision

Tue, 01 Apr 2008 12:51:00 EDT

Posted by Andrew Lord

The federal government reportedly revoked Imperial Oil's permit to take water for the planned Kearl oil sands project. Imperial Oil's legal challenge of that decision is expected to be heard in May. Imperial predicts that the battle to recover the permit to take water could delay the start of production by a year or more. The $8 billion project was scheduled to start producing 100,000 barrels of bitumen a day in 2011.

The decision to revoke the permit, which was made by the Department of Fisheries and Oceans, cited a recent ruling by the Federal Court concerning the environmental assessment ("EA") of the project. The Federal Court did not take issue with any conclusions in the EA about water. However, the court did find that the EA failed to justify the conclusion that the project would produce an insignificant quantity of greenhouse gases. It ordered the joint Alberta-Federal panel to provide cogent reasons for that conclusion. For more information about the Federal Court decision, particularly its implications for the federal government's climate change policy, see this posting on the Davis LLP Renewable Energy and Sustainable Development blog.

These recent developments are significant set-backs for Imperial Oil's Kearl project. They may also signal that the federal government is beginning to scrutinize the overall environmental impact of the development of the oil sands more closely.

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Consultations Begin-- 2008 Amendments to the Building Code

Tue, 19 Feb 2008 09:54:00 EST

Submitted by Alexis Alyea

Starting February 15, 2008, the Ontario Ministry of Municipal Affairs and Housing will begin the public consultation process with respect to proposed amendments to the Building Code. These amendments contemplate requiring fire sprinklers in multiple-unit residential buildings over three storeys in height, as well as introducing authorization for the establishment of programs to enforce the maintenance and operation of existing smaller (less than 10,000 litres per day) septic systems.

Information sessions will be held in late March and early April 2008, and comments can be submitted until May 1, 2008. The consultation paper can be viewed here: http://www.obc.mah.gov.on.ca/Page3005.aspx

The Building Code was last amended in 2007 by O. Reg. 137/07, which updated the definition of 'applicable law' in s. 1.4.1.3 (Division A) to reflect the City of Toronto Act, 2006 and changes to the Planning Act. Specifically, the provisions relating to parkland dedication (s. 42 of the Planning Act) and by-laws under O. Reg. 608/06 (Development Permits) became 'applicable law' for the purposes of the Building Code, along with the sections of the new City of Toronto Act, 2006 that relate to site plan control (s. 114) and the fortification of land (s. 102(3)).

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Proposed Ban on the Cosmetic Use of Pesticides

Mon, 18 Feb 2008 17:14:00 EST

Submitted by Alexis Alyea

On January 18, 2008 the Ontario Ministry of the Environment posted a 'Notice of intent to introduce legislation that would ban the cosmetic use of pesticides in Ontario' on the Environmental Registry. The MOE is inviting comment on the Notice until February 18th, 2008. The proposed ban would cover herbicides, insecticides, fungicides, and combinations thereof, and focus on cosmetic applications, such as their use on lawns, private gardens, parks and school yards.

The legislation would target cities and towns, and would incorporate a number of important exemptions. For example, pesticides used in agricultural applications, on golf courses, and for public health purposes (such as for combating West Nile) would all be excluded. Golf courses, however, would be required to develop pesticide use plans.

The MOE is seeking comments on five particular areas. Comments should consider the proposed focus of the ban on cosmetic applications; the limiting of the ban to cities and towns; the golf course exemption and accompanying proposal regarding pesticide use plans; a proposed 3-year phased-in implementation; and, potentially widening its scope to also include a ban on the sale of cosmetic pesticides.

The MOE intends to introduce the legislation in the spring of this year. The full text of the Notice can be found at:

Ontario Environmental Registry

(EBR Registry No. 010-2248)

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Province releases proposed final built boundary for Places to Grow

Tue, 20 Nov 2007 18:08:00 EST

On November 20, MPIR released the mapping for the "proposed" final built boundary as referred to in Places to Grow. Once the boundary is final, municipalities will be required to include it in their official plan conformity exercises to implement Places to Grow. It is the line within which the 40% intensification target is to be achieved beginning in 2015. The province will continue to accept submissions with respect to any necessary refinements to be made to the boundary, based upon the detailed methodology which is set out in the accompanying technical paper.

The maps and technical paper can be found at:

http://www.pir.gov.on.ca/english/growth/tech.htm

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Top Blog Award from LexisNexis

Mon, 19 Nov 2007 22:52:00 EST

We are pleased to announce that our blog has been selected to be featured in the 'Top Blogs' section of the recently released LexisNexis Environmental law and Climate Change Center.

The selection of the was made by the Environmental Team responsible for the Matthew Bender Environmental publications as one of that is most often visited, referred to and relied upon.

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Class Action certification for property damage due to TCE contamination upheld by the Alberta Court of Appeal

Wed, 17 Oct 2007 01:00:00 EDT

Last month the Alberta Court of Appeal upheld the certification of a class action against the Canadian Pacific Railway Limited relating to TCE contamination. The action alleged that the putative class members had suffered a diminution in property values and the loss of rental income as a result of TCE contamination of the groundwater under their properties originating from a degreasing solvent used in a CPR shop in Ogden, in southeast Calgary. The case management judge had found that the test for certification was met as (1) the pleadings disclosed a cause of action; (2) there is an identifiable class of two or more persons; (3) the claims of the prospective class members raise a common issue; (4) limiting the class to the defined boundaries (by way of certain Calgary streets) is logical and reasonable; (5) the temporal limit has a rationale connection to the claims arising from the ongoing remediation efforts; and (6) there is a logical connection among the TCE vapour claim, the alleged corresponding damages and the proposed class definition.

On appeal, CPR argued that case management judge erred in concluding that the class was sufficiently narrow to be an identifiable class within the meaning of the legislation when in fact the proposed class definition was both arbitrary and illogical, that he failed to properly address the minimum evidentiary standards such that the decision to certify was based on insufficient evidence, and that the judge erred in concluding that a class proceeding was the preferable procedure.

After reviewing the existing case law on class actions, the Court concluded that the case management judge did not commit a reviewable error and that CPR's contentions that the geographic limitation is arbitrary and both under-inclusive and over-inclusive, and that the class definition creates a conflict of interest between potential members, are without foundation. Furthermore, the Court dismissed the arguments that the class definition was merit based and that the decision to certify was based on insufficient evidence. Relying on the decision in the Supreme Court of Canada in Rumley v. British Columbia, [2001] 3 S.C.R. 184, the Court concluded that the fact that individual litigation of the relatively narrow issue of quantifying the effect of the contamination on particular properties would be required, does not prohibit certification. The decision can be found at the Canadian Legal Information Institute's website.

It should be noted that this case is strictly limited to damages for lost property value and rental income. We understand that a separate action has been commenced for health related issues. In Ontario, the only "environmental" class action that has been certified to date has been limited to damages for devaluation of property, Pearson v. Inco, [2005] O.J. No. 4918 (C.A.).

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Interesting Court of Appeal decision regarding damages arising from the purchase of contaminated property

Tue, 16 Oct 2007 18:21:00 EDT

The Ontario Court of Appeal has recently rendered an interesting decision dealing with damages in the event of the purchase of contaminated property, Lionhead Investments Inc. and Petro-Canada. See the Ontario Court of Appeal decision from late August of this and the trial decision from 2006 for details.

The decision deals with an industrial property contaminated by the Petro-Canada distribution terminal in North York. The plaintiff's predecessor in title (a related company) acquired a gasoline-contaminated industrial property at a reduced price because of the contamination. The party responsible for the contamination, Petro-Canada, had agreed to clean up the contamination, although not to a pristine standard, and indemnify the purchaser for any loss arising from the contamination. After the plaintiff sold the property (at a profit but less than it would have made if the property had not been contaminated), it sued Petro-Canada for the reduced profit attributable to the stigma. Interestingly, the amount that it said it lost due to the stigma was more or less equivalent to the discount it got on the property due to the contamination in the first place.

The Court of Appeal endorsed the trial judge's finding that the plaintiff had suffered no loss and dismissed the appeal holding that "[t]o allow the appellant's claim would be to compensate the appellant for a loss it did not suffer and, it would appear, to require Petro-Canada to pay the appellant an amount it had already paid to North America [the third party that sold to the plaintiff's predecessor in title]."

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Final Report of the Agency Cluster Facilitator Released

Tue, 25 Sep 2007 14:51:00 EDT

The Final Report of the Agency Cluster Facilitator has been released and Kevin Whitaker named as the Agency Cluster Facilitator. Mr. Whitaker will work with five tribunals in the municipal, environmental and land use planning sectors to improve services through cross-agency coordination and cooperation of operations, administration and dispute resolution. The five tribunals are the Assessment Review Board, the Board of Negotiation, the Conservation Review Board, the Environmental Review Tribunal and the Ontario Municipal Board.

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