In this short clip, Dianne Saxe of Envirolaw.com and Yves Faguy of Nimonik discuss recent issues around liability after a commercial contract has been performed – or not. Watch the video to find out more and what risks you run when selling or buying industrial property in Canada.

Title: Liability during property transfer – Cascades Lagoons
Length: 2:59
URL: http://www.nimonik.ca/2011/09/liability-during-property-transfer-cascades-lagoons/

Note: Unclear word/s is/are time-stamped and highlighted.

Yves:
Do you have a sense of what’s coming up in your head?

Diane:
Well, one of the case is, again it depends a little bit who the audience is but the Cascades paper decision that I was just reading, I think is really interesting because it’s a decision of Cascades created certain environmental issues in the course of running a paper mill. They sold the mill and paid the buyer, I forgot the exact statistics, but something in the general area of 2.5 million dollars to take over the environmental issues and fix them. And then they paid them another half million dollars to dredge a particular lagoon. And the recipient of the money took the money, spent the money, didn’t do the lagoon, (and) didn’t deal with any of these environmental issues. So they took all the money reportedly spent it all (and) didn’t deal with the issues. So now the ministry is coming back to Cascades and saying ‘You have to clean this up’ and Cascades is saying ‘We already paid for it the current owner won’t… we have a plan with the current owner that won’t let us carry out, this is just not workable, it’s not fair, it’s not workable.’

Yves:
What’s the outcome of this case?

Diane:
The outcome was that they the Environmental Review Tribunal said ‘We don’t care that you already paid for this at least once or twice. You dug your own grave here because you gave them the money without making sure that they would spend it with what you gave the money for, so have to do it again.’

Yves:
So they might have cause an action against the new owner.

Diane:
They absolutely do but the point of this is that the new owner may have spent the money. There’s no particular reason. They absolutely can sue the new owner but you have to wonder whether there’s going to be any assets there. So the moral there, this is something that we see fairly regularly is people think that they can make a commercial deal and someone else agrees to take the liability and they’re protected.

What we’ve seen several times coming out of the courts is it doesn’t have to be fair in what we would normally consider fairness if the government wants to order you to clean stuff up and they have the statutory right to do it because you had something to do with the property they can do it. So the kinds of deals that are still being negotiated are often not enforceable deals. I think that would surprise a lot of people that you can pay for a cleanup and have to pay for it again.

Yves Faguy of Nimonik recently chatted with Dianne Saxe about the certification of a class action lawsuit for noise issues on the Laurentian highway in Quebec. Dianne at EnviroLaw.com blogged about this interesting case with potentially far reaching impacts (blog post here), but we thought that a video was in order, so here it is. Quebec just passed an act that affirms the collective nature of water resources, could noise issues be next?

Title: Quebec Laurentian Autoroute Highway Noise Class Action Lawsuit video
Length: 5:41
URL: http://www.nimonik.ca/2011/08/quebec-laurentian-autoroute-highway-noise-class-action-video/

Note: Unclear word/s is/are time-stamped and highlighted.

Yves:
So the Quebec court of appeals has certified the carrier class action by neighbors of the major Quebec freeway. You wrote about this on your blog on envirolaw.com and I was just wondering if you could tell us why this decision is important:

Diane:
It’s very important because if the class action is successful, it would be one of the first cases in Canada where neighbors will suffer from a major infrastructure project had a remedy. There is one previous case also in Quebec where a snowmobile trail was incredibly noisy and was restrained on the class action but that was a very unusual case. And it was probably affected by the fact that the snowmobile trail, while nice, doesn’t have a compelling contribution to the public interest. Highway on the other hand is quite fundamental to modern society. The free movement of people and goods and we depend on highway to do it. The Laurentian highway in particular has been a great for the people who live nearby for more than 25 years. The noise levels around the highway exceed the ministry’s own standards as to what is an acceptable level quite significantly. We talked a few minutes ago, we talked before. If you think about other cases for example the Erickson case where the acceptable level of noise was 40 decibels and even so even though the maximum permitted level is 40 decibels, there was fierce public opposition. In the Carrier case, a material group of people has been exposed to more than 55 decibels which is more than 15x louder than 40 decibels.

So these people have been exposed to these amounts of noise everyday for 25 years. They say it’s like living under a constant artillery bombardment, and they have no remedy. They tried the political remedy, they appealed to the government and the federal government wouldn’t do anything. The provincial government said they would pay for half of the barrier, a noise barrier, but only if the municipality would pay the other half and that fight between the province and the municipality has gone on no resolution all these years. And as a result, the home owners were left exposed to this huge level of noise with no remedy. If the court allows them a remedy and either gives them compensation or orders the provincial and/or municipal governments to build the noise barrier or both, it will set a very important present for people again. Anywhere in the country will have a significant nuisance impact from an infrastructure project.

Yves:
And it could be a private infrastructure project too.

Diane:
Well it’s already easier to get a remedy against private infrastructure because they aren’t the government. They don’t have quite the same authorization but if in this particular case, it’s possible, the Quebec court appeal has said, to decide that while it’s… the government has the power to build the highway, that doesn’t mean they have the right to build the highway without noise control. It doesn’t mean that they have an untethered right to do what they want without considering the interest of those who live right next door. And if that rule applies to this particular piece of highway, it could apply to all the highways, it could apply to railways, airports, ports, gravel pits. There’s a lot of very noisy activities that take place that people are expected to put up with and maybe they won’t have to anymore.

Yves:
But that has to still be decided, that’s all we can certify.

Diane:
That’s right. There’s a long wait. I’m sure that we will have, I guess I don’t know for sure, but probably a year or two before we have the trial decision and after that given the stakes that I’ve expected will be appealed possibly to the Supreme Court of Canada. So it may take sometime before we know the ultimate result is. But this is an important question, what kinds of impacts the people have to put up with for infrastructure? It’s the same issue that was litigated in Vancouver over the impacts of the Canada land. It’s the same issue that’s been litigated in Toronto over the impacts of the St. Claire street car. Public infrastructure has significant public benefits but it also often imposes disproportionate cause on a certain group. And how much do they have to suck it up for the rest of us and how much are they entitled to compensational protection. The courts will have to decide.

Yves:
Ok with Diane Saxe, thank you very much. This has been a Nimonik interview and until the next time

Recently, Yves Faguy, LLB of Nimonik sat down (virtually) with Dianne Saxe of EnviroLaw.com to discuss the recent Erickson ruling in Ontario (Envirolaw blog post here).  Let us know if you have any questions.

Environmental approvals are changing rapidly in Ontario as described by our recent updates on Three new regulations to tackle approvals and Even more regulations on the approvals process in Ontario.

Title: Erickson Ruling Video with Dianne Saxe and Yves Faguy
Length: 8:05
URL: http://www.nimonik.ca/2011/08/erickson-ruling-video-with-dianne-saxe-and-yves-faguy/

Note: Unclear word/s is/are time-stamped and highlighted.

Diane:
The Erickson decision is the first contested decision in Ontario on a renewable energy approval. The green energy act came in 2 years ago establishing a new regime to make it easier to build renewable energy projects in Ontario. There are 4 classes of renewable energy projects that are currently governed by renewable energy approvals. The biomass and solar facilities so far have not been particularly contentious. The thunder and lightning is all focused on major wind projects. Major wind projects are cost effective compared to new nuclear and therefore have the potential to grow rapidly in Ontario and other jurisdictions. In fact, most jurisdictions that are planning a rapid movement to reduce their carbon footprints are looking heavily to wind. There has been a significant amount of organized opposition to new wind facilities in Ontario and Erickson decision is the first decision of the Environmental Review Tribunal on noise and the health concerns have been raised about wind turbines.

There also was an attempt to prevent the tribunal from deciding the issue. There was an application to the divisional court to strike down the entire regulation but that application failed a few months ago and the court of appeals refused. So the responsibility for deciding whether we can have a significant increase in wind energy in Ontario fell to the Environmental Review Tribunal which came out with its decision last week.

Yves:
Do you think this is a win for people who want to see wind energy development or do you see possibly the seeds to future problems in terms of how we determine what is harmful to human health?

Diane:
Yes and Yes.

Yves:
Ok, and perhaps explain why.

Diane:
This case is a very important win for those who want to see a renewable energy future in Ontario for the reasons I’ve just explained. Wind energy is the most economic of the major alternative low-carbon sources. The argument that was being made in the Erickson case was that wind turbines could not be built in the locations that the ministry of environment has approved. The regulation under the environmental protection act establishes a minimum setback of 550 meters from sensitive receptors such as homes. The opponents in the Erickson case argued that that was not enough, that wind turbines had to be much farther away from people because they said they were dangerous to human health. And the tribunal decided that the turbines approved by the ministry of environment could go ahead and that based on the evidence there was no proof that the turbines would be harmful to human health at the distances provided for the regulation.

So that’s extremely important because it means that turbines can be built. It’s also very important because it means that the regulation which sets out the setbacks does govern in Ontario. In terms of the questions, what does it mean for the future? That’s a very interesting question. It’s a long decision; it’s more than 200 pages.

Yves:
Plenty to hang our hat off

Diane:
Well, there’s a lots of different things people can argue about. The case came down to a very large extent was the issue of annoyance. There is good strong evidence that wind turbines do not have any direct adverse effect to human health. There’s a small chance that a turbine can fall on you just like a plane can fall on you or a car can jump out of its lane. But other than that, there’s a good evidence as the medical officer of health decided last year that turbines do not have direct effects on human health. However there are people who find them annoying. There are people who find them very annoying. There is evidence that people who are very annoyed by things can have that annoyance interfere with their sleep, their concentration and if you can’t sleep there can be effects from that stress and annoyance.

Yves:
Could those be indirect effects?

Diane:
That’s what’s called indirect effect. If you find something annoying and that annoyance causes you stress and that stress interferes with your sleep, you will not be as healthy as if you are less stressed and get normal sleep.

Yves:
So what does the law say about indirect health effect?

Diane:
What the tribunal decided in the Erickson case was that they would at least consider indirect effect as being a kind of health effect but there wasn’t enough evidence that there would be such effects if you follow the regulation. The regulation and the permit given to the Kent Breeze wind farm required that they create no more noise more than 40 decibels. At the neighboring properties, 40 decibels is the same noise level as in a quiet office. It’s quieter than the noise level of most roads. It’s not perfectly quiet but it’s a very relatively low level of noise and the tribunal said there just isn’t any evidence that at 40 decibels and 550 meters is gonna be a health effect even an adverse effect. Now they did say that we need to have more research. Maybe when there’s research, we’ll know more things which is always true. That’s never been considered a health effect before. In the Erickson’s case, the tribunal said they would at least consider that you could call it a health effect. It’ll be very interesting to see where that goes from here.

Yves:
So it’s that they are opening the door to recognize the possibility of indirect health effects becoming a problem and an argument that would help people contest certain projects. That is a possibility and it’s something that we haven’t seen much until now.

Diane:
That’s right. The tribunal has opened the door to annoyance and stress from any kind of facility that people don’t like being considered a health effect and we don’t know where that’s going to go. I think it’s a very important decision in terms of the approvals that can be given to any unpopular facility.

Yves:
Ok

Diane:
Wastewater treatment plant, a landfill, a transfer site, any kind of public service that is unpopular – a jail, anything that people can have stress or annoyance from and now many of them of this same argument will apply.

Yves:
Ok with Diane Saxe, thank you very much. This has been a Nimonik interview and until the next time

We are very happy to release a new video overview of the NimonikApp.ca for tracking EHS legislation in Canada & the United States. The video covers the basics of the site:

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Yves Faguy and Dianne Saxe recently had the chance to sit down and talk environmental enforcement and liability in Ontario, here is the result:

Be sure to download our report on environmental fines in Canada here.