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Environment


CANADA: An Introduction to Environment

Contributed by Bennett Jones LLP

Although one might get the sense that each year feels like the last, environmental issues continue to evolve, with new and interesting challenges cropping up.

Personal liability remains on the radar screen in Canada, but there is no clear policy direction in terms of enforcing against individuals. The courts have provided some recent direction regarding orders against insolvent or bankrupt companies, which remains an important issue.

Environmental legislation (statutes and regulations) in Canada is enforced by three levels of government: federal, provincial/territorial and municipal. For the most part, day-to-day operational matters are regulated by the provincial governments, but the federal and municipal authorities cannot be ignored.

Environmental Legislation 

The federal government has several principal environmental statutes that apply throughout Canada. The Canadian Environmental Protection Act, 1999 regulates substances, and includes, among other things, requirements to assess substances that are new to Canada and restrictions on substances that are found to be toxic. There are ongoing regulatory initiatives to assess chemicals that are already in use in Canada, which has resulted in the imposition of new restrictions for existing substances.

The federal government regulates the transportation of dangerous goods through the Transportation of Dangerous Goods Act, 1992, which imposes detailed requirements with respect to how dangerous goods are classified and transported, and imposes training requirements. There have been, and continue to be, significant developments to safety requirements, including with respect to the testing and use of railcars.

The "new" Canadian Environmental Assessment Act, 2012 only requires environmental assessments of significant designated projects. The Fisheries Act, which was significantly amended, includes protections for fish and fish habitat where there are serious and permanent threats that are part of a recreational, commercial and Aboriginal fishery.

Each province (and territory) has environmental protection legislation. As indicated, provincial legislation, rather than federal legislation, tends to have the greatest day-to-day impact on businesses. Typically, provincial legislation prohibits certain discharges into the environment, imposes requirements to obtain approvals for activities that have emissions to air or water, regulates contaminated sites and the management of waste, and imposes potentially significant penalties, including terms of imprisonment for individuals, for contraventions. One area where there continues to be new initiatives across Canada relates to increased stewardship obligations on producers with respect to managing waste materials.

Personal Liability - The Black Swan in the Room?

Many environmental statutes in Canada impose positive duties on officers and directors to take reasonable care to ensure their company complies with environmental law. Officers and directors can be held liable for an offence if they fail to exercise due diligence. The question is, what is the real, practical risk faced by individuals, such as officers and directors?

After a very public prosecution against officers and directors of the Bata shoe company almost 25 years ago which caused shockwaves in boardrooms, cases involving individuals have tended to involve individuals in "mom and pop" companies. These are not surprising, because the individual and the company are practically one and the same. In 2012, Ontario's Ministry of the Environment (now the Ministry of Environment and Climate Change) ordered the former directors of a company to take over the remediation of contaminated property that had been part of the company before it went bankrupt. The directors settled by paying almost CAD5 million. This attracted considerable interest among officers and directors regarding potential personal liability for remediation obligations, whether in a bankruptcy or not. Was this a black swan, or a harbinger of things to come? Our prediction is that it will continue to be rare for regulators to enforce against individuals, unless the individual had real involvement in the matter.

Contaminated Property Remains Hot! 

Contaminated property is regulated, for the most part, by provincial legislation. Provinces have adopted criteria to assess contamination, and orders can be issued to require remediation. Risk assessment continues to gain acceptance as a means to address contamination, but is still a very live issue. For example, we still see discussions about whether risk assessment can be a complete answer to contamination, or whether there are residual damages (stigma) remaining even after a risk assessment confirms there are no unacceptable risks arising from the contamination.

There continue to be challenges with respect to responsibility for historic contamination. Despite stated policies focused on the "polluter pays" principle, we continue to see situations where owners and persons with control of property are required to remediate even though they did not cause contamination.

Aboriginal Matters 

The Constitution Act, 1982 protects the aboriginal and treaty rights of aboriginal peoples. The duty to consult and, if appropriate, accommodate, arises when the federal or provincial government has knowledge of aboriginal or treaty rights that may be affected by contemplated governmental action.

The scope and context of the consultation depends upon the right or strength of the claim to the right and the potential impact. The Supreme Court of Canada's decision in Tsilhqot'in (June 2014) established aboriginal title for the first time in Canada. The case elaborated on how aboriginal title may be proven and the territorial scope of aboriginal title. It also answered questions about governance on aboriginal titled land and how the aboriginal and Crown roles are to be reconciled. Government, industry and First Nations are still adjusting to the increasing expectations related to First Nations involvement in governance and economic participation in resource development.

Climate change 

Federally, Canada committed to a 17% reduction in greenhouse gas (GHG) emissions from 2005 to 2020, which appears unlikely to be achieved. Federal legislation is currently limited to performance standards for vehicles (aligned with the USA) and coal-fired electricity generation.

All provinces have mitigation targets and plans. Alberta's reduction requirement in emissions-intensity for large emitters coupled with compliance mechanisms (offsets or contributions to a GHG mitigation technology fund) are reflected in British Columbia's proposed emissions intensity cap for LNG facilities. Québec has a cap and trade system linked with California's system. Saskatchewan's government-owned electricity generation has implemented a large carbon capture, use and storage project at its Boundary Dam facility.

Environment - Canada

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第一等 |

Basic facts about the department
- 17 partners
- 10 other qualified lawyers

What the team is known for Pre-eminent environmental and regulatory practice with a leading reputation for oil and gas-related matters. A big name in the LNG space, the firm has also been heavily involved in matters surrounding the transportation of dangerous goods, and continues to be well regarded for its experience of contaminated sites and climate change law.

Strengths (Quotes mainly from clients)
"They have great strength and depth across the country."

"They are exceptional in their knowledge of the regulatory regimes in Canada."

What's new? The firm opened an office in Vancouver in June 2014.

Notable practitioners  

Leonard Griffiths is universally regarded as one of the best environmental lawyers in the country. One client enthused: "He does exceptional work and is unusually client service-minded in every matter he handles." Griffiths' practice covers a broad spectrum of regulatory issues, including air, water and hazardous waste-related matters.

Brad Gilmour "is one of the top-notch environmental lawyers in Calgary. He has well-rounded expertise in the environmental field, and has worked in and has experience of a number of areas, including LNG. He has a really good appreciation of the regulatory frameworks in Alberta and BC," say sources.

Radha Curpen in Toronto is a solid player in environment matters. Her practice has an increasing focus on crisis prevention and management, including the transportation of crude oil by rail.

第二等 |

Basic facts about the department
- 10 partners
- 4 other qualified lawyers

What the team is known for Maintains an excellent reputation for environmental prosecution defence, contaminated sites and M&A-related work. Also stands out for its involvement in high-profile oil and gas and infrastructure projects. Other areas of expertise include environmental permitting and enforcement.

What's new? Tony Crossman joined the firm in September 2014 from Miller Thomson LLP.

Notable practitioners  

The experienced Jonathan Kahn operates a broad practice out of Toronto, with a strong focus on municipal planning, air and water regulation and prosecution defence work.

Charles Kazaz divides his time between Toronto and Montréal. His multidisciplinary environmental practice includes a wide range of matters involving the mining industry. One client described him as "a wonderful lawyer with a great bedside manner."

Tony Crossman's practice encompasses permitting, environmental regulatory matters and litigation. In addition to Nova Scotia, British Columbia and Yukon, Crossman was admitted to the Bar of Nunavut in 2013.

Duff Harper wins high praise for his full-time focus on environmental issues in Alberta. In addition to M&A and project-related advice, he also advises on environmental litigation and enforcement, as well as arbitration.

Janice Walton is highlighted for her expertise and experience of endangered species, including both federal and provincial regulation of wildlife. She also advises on environmental permitting, litigation and enforcement.

Significant clients Cliffs Natural Resources, Holcim, Imperial Oil, Rio Tinto Alcan, TDL Group (Tim Hortons).

Band 2 | Gowlings

第二等 |

Basic facts about the department
- 8 partners
- 6 other qualified lawyers

What the team is known for A hugely diverse practice with an especially strong reputation for environmental litigation, environmental assessment and municipal environmental work. Other notable areas of focus include chemical and nuclear regulation, water and waste water treatment, and emergency response.

Strengths (Quotes mainly from clients)
"Their work is exceptional - they are among the best teams of lawyers I've worked with. They are committed, detailed, strategic, proactive and solution-oriented."

Work highlights Acted for the City of Kawartha Lakes before the Ontario Court of Appeal on a case concerning the fairness of 'no fault' orders issued by the Ministry of the Environment.

Represents the Montréal Port Authority in ongoing environmental litigation in Québec involving regulatory and contamination issues.

Notable practitioners  

National practice group leader Harry Dahme is "impressive - he is very confident, current and responsive," say sources. He acted for the City of Kawartha Lakes on the aforementioned litigation brought against the Ministry of the Environment.

Mark Madras' wide-ranging practice covers issues including nuclear law and waste management, dangerous goods transportation and climate change. "He is extremely helpful in terms of looking at precedents and compliance issues," one client commented.

David Estrin "is well respected and a leader in the field," sources agree. He has extensive experience acting before Ontario's Environmental Assessment Board, the Ontario Municipal Board and the Environmental Review Tribunal. His clients include Crown and private companies, Aboriginal groups and municipalities.

Significant clients City of Hamilton, NSP Maritime Link, Walker Environmental Group, Town of Oakville, Buffalo & Fort Erie Public Bridge Authority.

第二等 |

Basic facts about the department
- 13 partners
- 12 other qualified lawyers

What the team is known for A well-established and growing national reputation for energy project development and environmental litigation. Heavily involved in renewable energy and pipeline projects. Also active in the mining, forestry, waste management and cleantech sectors, and frequently advises on multi-jurisdictional work.

Strengths (Quotes mainly from clients)
"They have excellent environmental law practitioners."

What's new? Paul Cassidy joined the firm in April 2014 from Blake, Cassels & Graydon.

Work highlights Acted for Stillwater Mining in connection with a joint Ontario-Canada environmental assessment hearing for the proposed development of a new platinum mine.

Assisted Miller Waste and Taggart Group with the development and approval of a greenfield waste recycling and disposal facility in Ontario.

Notable practitioners  

Paul Cassidy "has a huge profile nationally" and is widely regarded to be a strong pick-up for the firm. He is based in Vancouver and advises on a range of matters, including projects, litigation and environmental regulatory law. One source enthused: "He's an amazing guy." 

Douglas Hamilton is the national leader of the firm's environmental practice. He continues to represent Vale in environmental litigation and project permitting matters.

Nicholas Hughes specialises in resource disputes and frequently advises on cases with significant environmental issues. Sources say he "understands the business side of environmental law, and can see how to get through complex matters."

Significant clients Clean Harbors, Dow Chemical, Lafarge, Pétromont, Canadian Tire.

第三等 |

Basic facts about the department
- 5 partners

What the team is known for High-quality project permitting practice with significant expertise in solar, wind and mining work. The firm also operates a sophisticated environmental litigation practice and acts for an enviable list of clients in Ontario, Québec and beyond. Other areas of focus include contaminated lands and brownfields redevelopment.

Strengths (Quotes mainly from clients)
"A strong organisation on the environmental side."

Work highlights Acted for Capital Power on an appeal before the Environmental Review Tribunal in connection with the renewable energy approval for a 270 MW wind project.

Advised Waste Management Corporation of Canada on its CAD509 million acquisition of the assets of RCI Environnement, including a large landfill in Saint-Eustache.

Notable practitioners  

Sarah Powell is widely acknowledged as "part of the vanguard of the Environmental Law Bar." She is highly recommended for her capabilities across all areas of the practice, with one source commenting: "She marries good advice with the right touch - she disarms all challenges and takes something factional and gets everyone's support. It is masterful in content and in style."

Alexandria Pike's practice encompasses real estate transactions and leasing, as well as energy sector work and carbon trading. "She is one of the best development lawyers from an environmental perspective that we've come across," said one client.

Significant clients Agnico Eagle Mines, Cadillac Fairview, RioCan Estate Investment Trust, Stonebridge Financial, BHP Billiton.

第三等 |

Basic facts about the department
- 26 partners
- 16 other qualified lawyers

What the team is known for A significant profile with respect to project development, environmental assessment and permitting work, and a strong focus on linear infrastructure. The firm also has substantial experience of environmental litigation, site contamination and wildlife management.

Strengths (Quotes mainly from clients)
"The service is very prompt and high-quality."

Work highlights Acted for BC Hydro & Power Authority on the environmental assessment of its major Site C Clean Energy Project.

Notable practitioners  

Rosalind Cooper "is very highly skilled, very bright and very hard-working," clients comment. Sources are quick to highlight the breadth of her practice, which includes the mediation and arbitration of environmental disputes. One peer enthused: "She is one of my favourite lawyers to work with - she is amazing."

Paul Wilson is regularly involved in projects in British Columbia, Yukon, the Northwest Territories and Nunavut. Sources say: "He has been a wonderfully organised and accommodating relationship manager."

第三等 |

Basic facts about the department
- 8 partners
- 8 other qualified lawyers

What the team is known for A regular feature on natural resources project development in British Columbia and Alberta, as well as major mining projects in the North. The firm also handles issues relating to pipelines, as well as advising on transactions, financings and prosecution defence.

Strengths (Quotes mainly from clients)
"They brought the right expertise and the right amount of care and due diligence to the work."

"They are very strong in Vancouver." 

Work highlights Acted for Capstone Mining on a review by the Yukon Environmental & Socioeconomic Assessment Board of its proposed expansion of the Minto Mine, as well as on related water licensing hearings.

Notable practitioners  

Brad Armstrong QC wins high praise for his expertise in environmental assessment in Western and Northern Canada. He has been the firm's lead for Baffinland Iron Mines in relation to the Mary River Project, which received the approval for its second phase in 2014. 

Clifford Proudfoot represented BC Hydro in the environmental certification hearings with respect to the impact of the Site C Clean Energy Project on the Peace-Athabasca Delta, a UNESCO World Heritage Site.

Significant clients Teck Coal, Agnico Eagle Mines, Yellowhead Mining, New Gold, Walter Energy. 

Band 3 | Torys LLP

第三等 |

 Basic facts about the department
- 7 partners
- 7 other qualified lawyers 

What the team is known for Highly regarded business law firm with a strong focus on renewable energy and infrastructure, M&A and financing transactions, as well as emissions trading. The team also advises on litigation and environmental regulatory matters.

Strengths (Quotes mainly from clients)
"They are very high-performing, very competent, responsive and very knowledgeable."

Notable practitioners  

Dennis Mahony is the head of the firm's environment, health and safety group, as well as the co-head of the climate change and emissions trading practice. Sources say he is an "excellent lawyer" who "stands out for his understanding of the Environmental Review Tribunal and how it thinks."

Michael Fortier focuses on environmental transactions and is "extremely attentive and ready to deal with anything that comes our way," say clients.

Associate Tyson Dyck continues to be a frequent feature on the firm's key transactions. He also advises on climate change policy and administrative hearings.

第三等 |

What the team is known for Punches above its weight for environmental law in Ontario. Highly regarded for its exclusive focus on the area, advising on all manner of environmental litigation and environmental assessment issues, as well as air and odour issues and wildlife and water law. Sources are quick to highlight the firm's work outside of Ontario in Canada's Northern territories.

Strengths (Quotes mainly from clients)
"They live, eat and breathe this work."

"They are very thoughtful and articulate advocates for their clients."

Notable practitioners 

Donna Shier is held in high esteem by her peers at the Environmental Bar. Her long-standing experience in Ontario includes a strong focus on contaminated lands and real estate-related work.

Marc McAree regularly advises on environmental civil lawsuits. His practice also encompasses mediation.

第四等 |

Basic facts about the department
- 29 partners
- 23 other qualified lawyers

What the team is known for Highly regarded for project approval work and large transactions in British Columbia. The firm also advises on contaminated sites and related litigation, and is active on environmental work in Alberta and Ontario, including both renewable energy and air emissions issues.

Strengths (Quotes mainly from clients)
"Their experience and scope with large projects is well understood."

Work highlights Advised EDF EN Canada on the environmental and regulatory implications of the Blackspring Ridge wind project in Alberta. 

Notable practitioners  

Deborah Overholt is "terrific," commentators agree, dubbing her a "leader who takes up a lot of room in terms of expertise and reputation." Overholt is based in Vancouver and enjoys a national profile for her work in this field.

Significant clients North 60 Petro, NWT Power, Spectra Energy, Apache, Murphy Oil.

第四等 |

Basic facts about the department
- 24 partners
- 19 other qualified lawyers 

What the team is known for A strong focus on the interface between environmental and regulatory law. Best known for its strength in Western Canada, the firm is well regarded for its expertise in pipeline projects and has an increasing focus on matters related to the transportation of crude oil by rail. Also active in Ontario and in Québec, where areas of expertise include site remediation and water issues.

Strengths (Quotes mainly from clients)
"They take the time to understand the business so they can give real fulsome legal advice."

"I like the breadth of specialities that they offer." 

Work highlights Successfully represented Enbridge throughout the environmental assessment phase of the Northern Gateway Pipeline project.

Notable practitioners  

Richard Neufeld QC is highly regarded for his broad regulatory practice, which includes a strong focus on environmental assessment processes. In addition to his ongoing work on Northern Gateway, he advises on a range of other pipeline, LNG and oil sands projects.

Alex MacWilliam's practice includes M&A transactions, regulatory approvals and crisis management. Sources say: "He has a wealth of experience and can answer questions quickly."

Significant clients BP, Syncrude, Domtar, GWL Realty Advisors, Morguard Investments.

Band 4 | McInnes Cooper

第四等 |

What the team is known for A go-to firm for advice on environmental law and energy matters in Atlantic Canada. Represents clients with respect to permitting and environmental assessment, contaminated sites and business transactions.

Notable practitioners  

The impressive James Thistle has a strong focus on resource development. He also advises on public law and environmental litigation.

第四等 |

Basic facts about the department
- 11 partners
- 4 other qualified lawyers 

What the team is known for Strong capabilities across jurisdictions and areas of environmental law, including the transportation of dangerous goods, D&O liability, project development and carbon trading. Benefits from the support of the firm's worldwide network to advise on a range of cross-border matters.

Strengths (Quotes mainly from clients)
"They are a really good example of how lawyers can work together and leverage their expertise to bring that to their client."

Work highlights Represented Canadian National Railway in its challenge of a control order issued by the Ministry of the Environment of Québec.

Notable practitioners  

Sources agree that Jean Piette "is a great Canadian environmental lawyer." He is based in Montréal and stands out for his long-standing experience in the field, and can regularly be found advising on matters of provincial and federal significance.

In Calgary, Alan Harvie has a strong focus on matters involving hydraulic fracturing as well as the transportation of crude oil by rail, among other areas of expertise. "He's excellent," say interviewees.

Significant clients ArcelorMittal, Bombardier, Regional Municipality of Waterloo, Domtar, Akzo Nobel. 

第四等 |

Basic facts about the department
- 12 partners
- 10 other qualified lawyers 

What the team is known for Handles notable work in project development, as well as the environmental aspects of real estate and M&A transactions. Also advises on contaminated sites and stands out for its focus on environmental matters in Toronto, Calgary and Montréal.

Strengths (Quotes mainly from clients)
"They are very proficient and knowledgeable about the different environmental statutes and current case law."

Work highlights Advised Shell Canada on the environmental aspects of the expansion of the Jackpine Mine. 

Notable practitioners  

Shawn Denstedt QC "has a fantastic environmental assessment practice," say peers, while clients add: "He provides thoughtful legal advice and is very willing to work with us to ensure we meet internal project and budget mandates."

Daniel Kirby wins praise for his advice on the environmental implications of commercial transactions. Sources say he "is very experienced and very responsive, and gives solid business-focused advice."

Significant clients TransCanada Pipelines, Kinder Morgan, De Beers, BluEarth Renewables, Brion Energy. 

第四等 |

Basic facts about the department
- 3 partners
- 1 other qualified lawyer 

What the team is known for Highly regarded Québec boutique with a rapidly growing profile both locally and nationally. With equally strong capabilities in both litigation and advisory work, the firm acts for an enviable list of clients from the mining, oil and gas, transportation and forestry sectors, among others.

Strengths (Quotes mainly from clients)
"A go-to firm whenever we have an issue in Québec."  

Work highlights Acted for World Fuel Services in connection with a cleanup order issued following the Lac-Mégantic train derailment. 

Notable practitioners  

Anne-Marie Sheahan is acclaimed for her environmental practice in Montréal. Sources say: "I don't think there is anyone in Québec who is as skilled and talented as Anne-Marie with a client base like hers." She is heavily engaged in the Lac-Mégantic disaster work, and is also representing Montreal International Fuel Facilities in relation to the permitting for the construction of a new marine terminal. 

Paul Granda operates a broad practice with an emphasis on contaminated sites and brownfields redevelopment. He is also well placed to advise on project approvals and permit transfers.

Significant clients GE, Resolute Forest Products, Imperial Oil, Inmet Mining, First Capital Asset Management. 

第五等 |

What the team is known for Maintains a strong reputation for environmental work in Alberta and the North. With offices in Calgary, Edmonton and Yellowknife, the firm has extensive expertise in environmental assessment and other project-related work, as well as contaminated sites and litigation.

Notable practitioners  

Ronald Kruhlak QC is the head of the firm's energy, environment and regulatory practice, and stands out for his involvement in matters in both Alberta and the Northwest Territories. His clients include government entities and industry proponents with respect to mining and oil and gas projects and contaminated site disputes.

第五等 |

What the team is known for Provides environmental law advice from 11 offices across Canada. In Ontario, the firm has a strong focus on contaminated sites and brownfields redevelopment, as well as waste management. In Western Canada, the team regularly advises on the environmental aspects of energy projects.

Notable practitioners  

Bryan Buttigieg and Sarah Hansen co-head the practice and are based in Toronto and Vancouver, respectively.

Other Ranked Lawyers 其他上榜律师

Alan Blair of Blair Law Group is recognised for his focus on environmental regulatory matters, prosecution and compliance work.

Formerly of Bennett Jones LLP, Gray Taylor of Gray Taylor Law maintains an international reputation for his expertise in climate change transactional law.

Robin Junger of McMillan LLP "has tremendous expertise in environmental assessment and First Nations law." As the former head of the British Columbia Environmental Assessment Office, he maintains a high profile in the province.

Gary Letcher of Letcher Akelaitis LLP is regarded as "one of the leading contaminated sites lawyers in Western Canada." His practice also encompasses air management and industrial odour issues, as well as environmental assessment and permitting.

Robert Daigneault of Robert Daigneault, Cabinet D'Avocats is praised for his "well-rounded view" and is widely acknowledged as a top choice for environmental issues in Québec.

Dianne Saxe of Saxe Law Office "has a dominant position in the environmental law scene in Ontario," said one interviewee. Saxe has more than three decades of experience in the field, and sources say: "Her work is widely known."

Larry Cobb regularly advises on environmental law aspects of M&A transactions, as the head of the environmental law group at Stikeman Elliott LLP. One source said: "He has always impressed me as a very practical, business-oriented environmental lawyer."

John Stefaniuk of Thompson Dorfman Sweatman LLP in Winnipeg is recognised for his wide-ranging expertise, which includes environmental law and real estate, as well as mining and municipal work.

Foreign Experts (Based Abroad)

Jeffrey Gracer of Sive Paget & Riesel PC is based in New York, where he maintains a strong focus on international environmental transactions and regularly represents Canadian clients.

Foreign Experts

Foreign Experts are individuals with expertise in a different jurisdiction to the one they are based in. These individuals are particularly highly regarded for international and cross-border work. Usually, they will be identified in the jurisdiction in which they are based and in their country of expertise.

Senior Statesman

A 'Senior Statesman' is a lawyer who no longer works hands-on with the same intensity but who, by virtue of close links with major clients, remains pivotal to the firm’s success.

Eminent Practitioners

'Eminent Practitioners' are highly influential lawyers in a particular practice area who, due to managerial or client relationship commitments, are less active in day-to-day work but remain key players in the team.

Other Noted Practitioners

Other Noted Practitioners are individuals who have not yet been ranked but are seen to be active and accomplished in this area of law.

Other Noted Firms

Other Noted Firms are firms that have not yet been ranked but are seen to be active and accomplished in this area of law.