Environmental litigation

Civil, criminal and administrative litigation on environmental issues, in Canada and abroad. Includes lawsuits, prosecutions, and tribunal proceedings

Appeal Court Rejects Pollution Exclusion in Oil Overflow

In O’Byrne et al. v. Farmers’ Mutual Insurance Company (Lindsay), 2014 ONCA 543, the Ontario Court of Appeal has forced an insurer to pay for a fuel oil cleanup after a spill, despite a pollution exclusion clause.

Can municipal bylaw stop Hydro One Transformer Station?

Can the Municipality of Clarington, Ontario, by bylaw, force Hydro One to submit a groundwater study in order to build a $296 million transformer station, that has been directed to be built by the Ontario Power Authority, and approved by the Ministry of the Environment?

Ontario Anti-SLAPP law soon after all?

Yesterday,  we noted that Environment Minister Glen Murray’s mandate letter includes no reference to a new anti-SLAPP (Strategic Lawsuit against Public Participation) law: http://envirolaw.com/environment-minister-murrays-mandate-letter/, even though SLAPPs are often directed against environmental protection groups.  A faithful reader has helpfully pointed out that, thankfully, that is because bringing the anti-SLAPP law back to the Legislature is mandated to…

Herbicide Spray Drift a “Normal” Farm Practice?

Organic farmers in Nova Scotia filed a lawsuit against a neighbouring farm for damages allegedly caused by a herbicide which drifted onto their property. In particular, the plaintiffs claimed that the herbicide caused damage to their crops, the miscarriage of four horses, and personal injury. The defendant farmer claimed immunity under section 10(1) of Nova…

Can the threat of personal liability stop fluoridation?

Opponents of fluoridation have started to threaten councillors with personal liability for fluoridated water, in the hope of changing municipal policy on water treatment. The province created this problem, and they should fix it.

Should Children Have a Right to a Healthy Environment?

On June 17, 2014, several environmental groups in New Brunswick circulated for comment a draft environmental bill of rights for children. Called “A Bill of Rights to Protect Children’s Health from Environmental Hazards,” it is the first of its kind in Canada. If passed, the law would confer on every child “the right to protection…

Millions for offsite gasoline contamination

The Ontario Superior Court has awarded millions to a neighbouring property owner for historic offsite gasoline contamination. The decision in Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Ltd. illustrates, and will perpetuate, the continuing confusion over liability for off site groundwater plumes. Justice Leitch never explains how her decision can be reconciled with the landmark Smith v.…

As minimum fines get higher, is there a work-around?

As minimum fines on multiple charges lead to increasingly unfair results, defence counsel, and occasionally judges, are looking for ways to reconcile the law with what they consider to be just results. Earlier this year, the Ontario Court of Appeal slammed the door shut on two such ideas: credit for compliance with regulatory orders, and concurrent…

Ottawa wins Green Bin arbitration – appeal pending

Following years of conflict, and a long arbitration process, a commercial arbitrator has ruled  that Orgaworld Canada must accept leaf and yard waste in the City of Ottawa’s green bin program and dismissed Orgaworld’s claim against the City. The decision is a win for Ottawa taxpayers, but a critical internal audit of the City’s contracting process shows…

More anti-wind power appeals dismissed

Ontario’s Environmental Review Tribunal (ERT) recently dismissed two more anti-wind power appeals, this time relating to the same project. One of the appeals had a new feature: whether wind turbines interfere with weather forecasting radar. July 9, 2014, Fata v. MOE, ERT Registry Nos.: 13-145/13-146.

Environmental consultant’s negligence claim to proceed

Environmental consultant’s negligence claims for failing to clean up contaminated sites continue to multiply. The Ontario Superior Court recently allowed a professional negligence lawsuit to go ahead against an Ontario environmental consultant, XCG, despite a long delay, which,  according to XCG, was causing it unfair prejudice.

Blue Box funding arbitration final argument

The massive Blue Box funding arbitration enters the final stretch this week, with closing arguments starting today. Our firm will file our written argument why Ontario Blue Box stewards owe municipalities more than $115 million this year, under the Waste Diversion Act. Separate closing arguments will be delivered on the “in kind” newspaper advertising deduction, which Stewardship Ontario claims…

When it comes to anti-wind power appeals, all turtles are not created equal

The Environmental Review Tribunal has dismissed another anti-wind power appeal, holding that evidence to substantiate claims of “serious and irreversible harm to animal life” must be site-specific, species-specific, and quantifiable. The Tribunal released its decision in Bain v. Director, Ministry of the Environment, 2014 WL 888126 on February 27, 2014, allowing the five-wind turbine Emestown…

Experts permitted to testify via telephone… sometimes

The Environmental Review Tribunal has granted a request to have expert witnesses testify via telephone conference call when the appellants argued that it would be too costly to have them attend in person, and that videoconferencing was also costly, as well as prone to technological failure.