Contributed by Bennett Jones LLP
The issues and potential liabilities for environmental matters continue to be important for businesses in Canada, whether for daily operations or new projects. Environmental legislation (statutes and regulations) in Canada is enforced by three levels of government: federal, provincial/territorial and municipal.
As in most jurisdictions around the world, it is an offence to discharge contaminants into the natural environment, and there are reporting obligations that must be complied with when certain discharges or spills occur. Approvals are typically required for activities capable of impacting the environment. It is an offence to cause or permit an unlawful discharge, fail to report in a timely manner, fail to obtain a required approval, or not comply with its terms. Offences can result in significant fines and penalties against companies as well as individuals. Projects can require the assessment of potential environmental impacts, particularly if there is government involvement.
Federal & provincial legislation
Under the Canadian Environmental Protection Act, 1999, the federal government can regulate substances in Canada. This includes imposing requirements for substances that are new to Canada and substances that are considered to be toxic, reporting information relating to the emission of pollutants into the environment, and the interprovincial and international movement of hazardous waste and recyclable materials. There is also federal legislation related to impacts on fish, the protection of species at risk and migratory birds.
Notably, the Canadian Environmental Assessment Act was overhauled in 2012. It now focuses on significant projects that are designated as requiring a legislative assessment, attempts to eliminate duplication between federal and provincial assessments, and imposes timelines for the completion of assessments.
Each province (and territory) has environmental protection legislation. For the most part, provincial legislation has the greatest day-to-day impact on businesses.
Typically, provincial legislation imposes requirements to obtain approvals for air or water discharges, and regulates contaminated sites (see below) and matters related to waste (creation, management and disposal). There are many new and emerging initiatives across Canada related to the recovery/reuse of waste materials by producers and importers (e.g. stewardship of recyclables, including electronics, etc).
Environmental legislation can impose significant penalties for infractions. Enforcement varies across the country, and within each province. In Ontario, maximum penalties can be as high as CAD10 million per day, and prison sentences are available. Minimum penalties can be imposed in certain cases. Some jurisdictions have introduced administrative penalties. There are also provisions that impose positive duties on officers and directors to take reasonable care to ensure their company complies with environmental law. In Québec, new provisions can impose personal liability on officers and directors who are presumed to have committed an offence when the company has committed an offence, unless the officer or director can prove that he or she exercised due diligence and took all necessary precautions to prevent the offence.
Municipalities derive their jurisdiction from provincial governments. On the environmental front, in addition to planning, municipalities have traditionally regulated matters such as noise and sewers. Municipalities looking to expand their powers in this area have introduced by-laws, for example, that require businesses to report their use of toxic substances (community "right-to-know").
Contaminated property and brownfield opportunities
Provincial legislation, for the most part, regulates contaminated property, including the investigation and remediation of suspected or known contamination. This can involve orders that require work to be done. The provinces have adopted criteria that are used to assess contamination. Some of the criteria are in legislation, while others are guidelines without the force of law on their own. Risk assessment continues to gain acceptance for addressing contamination.
There are live issues related to who is responsible for historic contamination, and these cases increasingly go beyond "polluter pays" to include prior and current owners and persons with control of the property. This is an evolving area, as are the cases related to civil liability and class actions for contamination. In 2012, the Ontario Ministry of the Environment ordered the former directors of a company to take over the investigation and remediation of a contaminated property that had been managed by the company before it went bankrupt. The orders have been appealed, and this will be an important case to watch.
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 or traditional uses of land that may be impacted by contemplated governmental action. The Crown's duty to consult exists independently from any statutory obligation or any regulatory process. The scope of consultation depends upon the right and nature of the potential impact.
Existing climate change legislation includes federal and provincial greenhouse gas (GHG) reporting. Legislation requiring reductions in GHG emissions is less common, and compliance-based emissions trading exists only in Alberta. Alberta has implemented a GHG management system that incorporates obligations for large emitters to reduce emissions intensity, and provides trading in excess reductions and the use of and ability to trade offsets.
Although Canadian legislation does not expressly require the implementation of sustainability strategies, directors and officers of Canadian companies are required to act in the best interests of the corporations they serve. This encourages (and arguably requires) business leaders to think broadly about the opportunities and risks their companies face. Many Canadian investors and lenders have come to expect that companies demonstrate a strong and clear commitment to environmental sustainability.
Environment - Canada
THE FIRM This pre-eminent firm is singled out for its top-tier environmental practice in Alberta, while its capacity nationwide is also impressive. The team commands respect for its energy sector work in Western Canada, where it maintains a heavy focus on compliance and environmental risk management. It also has strong experience of prosecution defence, climate change and Aboriginal law, acting for high-profile clients across a range of industries, including oil and gas, transportation, utilities, chemicals and real estate.
Sources say: "A young and energetic team - their experience goes beyond their years." "They are widely respected for their extremely high-quality work."
KEY INDIVIDUALS Clients praise the "always exceptional" Leonard Griffiths, citing him as "by far the best environmental lawyer in Canada." Market sources praise his broad experience, which covers both transactions and contentious matters.
Gray Taylor has a substantial emissions trading practice, and is universally acknowledged as the "godfather of Canadian climate change law." He co-heads the firm's climate change and emissions trading group.
Brad Gilmour is described as a "terrific team leader" who garners "an awful lot of respect from the regulators." One client commented: "When you hire Brad, you don't just hire Brad - you hire some of the best and brightest of Bennett Jones."
Radha Curpen is "very clearly an expert in the field," say sources. "She stands out as a practical, results-oriented professional," clients agree.
THE FIRM This national heavyweight is esteemed for its extensive environmental platform. The team stands out for the depth of its expertise, which covers contaminated property, waste management and regulation, toxic substances and species at risk, among other areas of specialism. It is also very active in project development, and handles environmental assessment and permitting in a range of sectors. It has a strong footprint in Western Canada, and in mining in particular, and is regarded as an increasingly visible force in Québec. Key clients include Lafarge, Sinopec and Shell.
Sources say: "A very well-rounded practice with a great reputation." "They have some very strong participation out of their Western offices."
KEY INDIVIDUALS Sources agree Paul Cassidy "has a fabulous practice in Vancouver." Clients praise his studied approach: "I've never worked with someone so organised, well structured and methodical - he is one of the most intelligent people I have ever met."
He co-leads the department alongside the highly respected Jonathan Kahn in Toronto.
Market sources highlight the addition of Charles Kazaz to the Montréal team in early 2012. His wide-ranging practice covers permitting and compliance, mineral rights and First Nations law.
In Calgary, Duff Harper is "plugged into the environmental community" and is commended for his methodical and team-oriented approach to service. Alongside Paul Cassidy, he acts for Suncor Energy in respect of its overall environmental strategy.
Since publication, Caroline Findlay has moved in-house.
THE FIRM Davies is lauded for its focus on environmental law in Ontario, where it is a popular choice as environmental counsel on a wide range of transactions. It has enjoyed significant activity in the renewable energy sector, acting for a host of clients on hydro, wind and solar projects. One contentious highlight was the representation of the Québec Business Council on the Environment before the Supreme Court of Canada, with respect to its intervention in the St. Lawrence Cement Action. This was the first environmental class action to be heard at the Supreme Court since the implementation of the class actions regime in the province.
Sources say: "Outstanding lawyers."
KEY INDIVIDUALS Sarah Powell is widely acknowledged as one of Canada's leading environmental lawyers. Peers describe her as "a dynamo" and "a top-notch lawyer and a very smart lady."
She works closely with Alexandria Pike, who is increasingly well known for her practice with respect to environmental liability in bankruptcy.
THE FIRM This high-profile national department is commended for the depth of its resources and the quality of its work product. The firm is traditionally sought out for its experience in the mining sector, but is also heavily involved in project development in other fields, including renewable energy facilities, ports and transmission lines. Notably, it acted for BC Hydro on the environmental assessment and permitting process for the Interior to Lower Mainland transmission project. Additionally, the firm has substantial expertise on carbon trading, and advises the Pacific Carbon Trust on emissions offset acquisition transactions.
Sources say: "We have worked with them for years and we are delighted with their service."
KEY INDIVIDUALS Rosalind Cooper stands out for the depth of her experience and knowledge. "She is one of the top ten environmental lawyers in Canada - she is superb," said one source.
New to the tables, department head Paul Wilson has made an impression on clients, who say: "We are extremely impressed with his negotiation style, abilities and deliverables."
THE FIRM Market sources are quick to draw attention to this firm's bench strength in the environmental domain. With 15 lawyers across Canada, the team advises on commercial transactions, environmental litigation, brownfield redevelopment and climate change. It is also well known for its work in the areas of waste management, water and waste water infrastructure, and nuclear regulation. The firm has developed a strong chemical management practice, and recently advised the Silicones Environmental, Health & Safety Council of North America in respect of a review of siloxane D5 under the Canadian Environmental Protection Act. Other notable clients include the BC Salmon Farmers Association, the City of Hamilton and Imperial Oil.
Sources say: "They have a number of very strong practitioners with lots of experience - they do all sorts of really interesting, ground-breaking environmental law."
KEY INDIVIDUALS Clients describe department head Harry Dahme as "one of the best environmental lawyers around." He earns praise for his ability to "combine good technical legal advice with creative, thoughtful advocacy."
Mark Madras is regarded as a "fixture in Ontario - one of the names that absolutely would come up there." His practice covers new substance regulation, toxic and hazardous chemical regulation and dangerous goods transportation.
David Estrin earns widespread acclaim for his deep understanding of Canadian environmental law. According to one source, "he has been doing this longer than anyone else."
Since publication, Paul Granda has joined Sheahan and Partners G.P.
Since publication, Alan Blair has joined Blair Law Group
THE FIRM McCarthy Tétrault continues to be a very active participant in the Canadian environmental law arena. Handling both project advocacy and environmental litigation, the firm has been involved in a number of significant mandates. Highlights include representing Stillwater Mining in a joint Ontario-federal environmental assessment process, and advising Miller Waste and Taggart Group on the development of a greenfield waste management project in Ontario.
KEY INDIVIDUALS Douglas Thomson is "one of the best if not the best in the country," according to market sources. He is rated for his involvement in large projects, such as the expansion of Ontario's only hazardous waste landfill.
National group leader Douglas Hamilton advises on a range of environmental concerns, including permitting and compliance, health and safety, corporate transactions, projects and litigation. His clients include the likes of Xstrata and Vale.
Nicholas Hughes "has a broad appreciation of environmental issues from both a business and a legal standpoint," clients comment. "He's a smart guy doing good work," peers say.
THE FIRM Torys has a very strong environmental law group in Toronto, which is able to work on national matters, and those with a cross-border element. Thanks to its firm-wide focus on renewable energy, the group stands out for its experience in both project development and disputes concerning renewable energy. Additionally, the group advises on the environmental law aspects related to REIT offerings, and on the environmental challenges facing mining sector transactions. Work highlights include representing Northgate Minerals in its USD1.38 billion acquisition of AuRico Gold.
Sources say: "Torys stands out for its expertise in green energy and climate change." "They are really doing an excellent job - they treat us as a top priority and likely treat all of their clients in the same way."
KEY INDIVIDUALS Dennis Mahony "has a wealth of experience and practical knowledge of the environmental regulatory process in Canada," say interviewees. One source enthused: "He is an incredible strategist - I really trust his judgement."
Michael Fortier is recognised for his environmental transactions practice, and for his expertise in climate change and water law.
Tyson Dyck "is very thoughtful and thorough - his work is top-notch," say sources. One client enthused: "He's fantastic."
THE FIRM This regional firm continues to occupy a significant position in the Canadian environmental landscape. Headquartered in Vancouver, it benefits from additional offices in Calgary and Yellowknife, and is well known for its representation of natural resource companies in a very resource-rich area. Notably, the team acts for Baffinland Iron Mines in respect of the environmental assessment and regulatory approvals for the Mary River Project, one of the largest mines currently in development in the country.
Sources say: "An incredibly strong firm in Northern and Western Canada."
KEY INDIVIDUALS Brad Armstrong QC is acknowledged for his involvement in major cases and projects with both environmental and First Nations law components. He is advising Western Copper on the development of the Carmacks project in Yukon. In the words of one peer: "There's nobody better than Brad Armstrong."
He is joined in the rankings this year by Clifford Proudfoot, who specialises in both environmental and Aboriginal litigation.
THE FIRM This firm offers environmental expertise out of its Montréal, Toronto, Calgary and Vancouver offices. It is best known for its work as environmental counsel in respect of both domestic and international M&A transactions, and has seen an uptick in mandates involving contaminated sites. Additionally, the firm demonstrates notable strength in environmental class actions. Key clients include Northstar Aerospace, ENMAX and the Toronto Transit Commission.
Sources say: "We are really happy with them - they really conduct themselves as members of our team, and they turn stuff around quickly."
KEY INDIVIDUALS Larry Cobb is highly rated for his environmental transactions practice. Top work includes advising ConAgra Foods on waste water and fuel handling contamination, in connection with its acquisition of Del Monte Canada. Sources say: "He's very good at what he does - a very solid practitioner."
THE FIRM This firm of environmental, Aboriginal and energy law specialists punches above its weight in the Ontario market. The team has been very active advising on environmental transactions, approvals and compliance, as well as litigation, and is commended for its knowledge, clout and experience in the field.
Sources say: "A quality shop."
KEY INDIVIDUALS Marc McAree is one of the most visible figures in the team. He advises on environmental and municipal law, land use planning and civil litigation. Other well-known firm figures include Donna Shier and John Willms.
THE FIRM Historically a strong competitor in the Vancouver market, BLG is now earning recognition for its investment in the environmental law practice in Québec. The firm has long experience of environmental litigation in Western Canada and the North, and interesting highlight work includes defending the Northwest Territories Power Corporation against charges brought under the Fisheries Act.
Sources say: "They have a significant practice."
KEY INDIVIDUALS Deborah Overholt is widely regarded as a main player in British Columbia. She advises on the environmental aspects of commercial transactions, including electrical energy and gas transmission projects. "She is a very prominent environmental lawyer in Vancouver," peers comment. Also in Vancouver, William McNaughton is the national leader of BLG's environmental law practice group.
THE FIRM This firm is widely acknowledged as a strong contender in environmental law, especially on the regulatory side. Although best known for its Alberta group, the team demonstrates significant strength nationwide, advising on the environmental implications of a range of large energy projects. The firm also undertakes a significant market share of defence work, and earns plaudits for its customer service. Key clients include Enbridge, Syncrude and the Ontario Infrastructure Corporation.
Sources say: "Their turnaround time is unbelievable, their dedication to clients outstanding, and their industry-specific knowledge really stands out."
KEY INDIVIDUALS Richard Neufeld QC is singled out for the breadth of his knowledge and expertise in environmental and regulatory law. He is the driving force behind the firm's work for Enbridge with respect to the Northern Gateway Pipeline project.
Department head Alex MacWilliam is rated for his expertise in matters relating to contaminated land in the oil and gas sector, and for his involvement in climate change policy development.
THE FIRM This firm is singled out as a top choice for environmental law in Eastern Canada. Working in tandem with the natural resources and energy group, the team regularly advises on environmental compliance in connection with the development and operation of projects. The firm's expertise extends across a range of industries including mining and extraction, pulp and paper, and renewables.
Sources say: "The leader in the Maritimes."
KEY INDIVIDUALS Firm managing partner Bernard Miller is recognised for his long experience of environmental law in Atlantic Canada. Sources say: "He's fantastic out East."
New to the tables, James Thistle is a highly respected environmental lawyer in Newfoundland. "Jim's got great depth of experience in the Eastern oil and gas and mining space," say sources.
THE FIRM With key strengths in both British Columbia and Ontario, and additional expertise in Alberta, Saskatchewan and Québec, this firm stands out for its cross-country coverage in environmental law. It is recognised for its services in the areas of contaminated sites and brownfields redevelopment, environmental due diligence, waste management, water and sewer servicing. It also handles environmental defence. Its track record includes involvement in the Walkerton water inquiry, where it acted for the municipality.
Sources say: "They have historically been a strong player in environmental law in Toronto."
KEY INDIVIDUALS In Vancouver, national practice group chair Tony Crossman is "involved in everything," according to interviewees, and is highly respected in the industry. He is a past chair of the national environmental section of the Canadian Bar Association.
In Markham, John Tidball advises both private and public sector clients on waste management, contaminated property and regulatory compliance and approvals.
THE FIRM As a result of its 2012 merger with Macleod Dixon, Norton Rose now has significant environmental expertise in its Montréal, Toronto, Vancouver and Calgary outposts. The 18-strong combined team advises on a range of mining, renewable and cleantech transactions, and enjoys increased capacity in the area of climate change and carbon markets. The environmental impact of project developments in northern Québec is another source of work. Key clients include Hydro-Québec, Bombardier and Holcim.
KEY INDIVIDUALS The renowned Jean Piette "continues to be involved in many important things in Québec," sources agree. Recent work includes advising ConocoPhillips on a lawsuit concerning a contaminated property owned by the RCMP. "He's outstanding," say interviewees.
Toronto partner Elisabeth DeMarco specialises in climate change law, and is internationally recognised for her practice in this area. She advises on emissions trading and matters related to the Kyoto Protocol.
In Calgary, Alan Harvie advises oil and gas companies on environmental and regulatory law, with additional expertise in water resources law. He advised the independent committee of the board of directors at Enbridge Income Fund, on Enbridge Commercial Trust's acquisition of CAD1.23 billion in energy assets, including the largest photovoltaic solar project in the world.
THE FIRM This multidisciplinary team is singled out for its focus on regulatory approvals and environmental assessments. With key strengths in Calgary and Toronto, it advises on large natural resources development projects, including LNG, electricity and gas pipeline projects. The firm advised Nalcor Energy on the regulatory and environmental approval process for the proposed CAD6 billion Lower Churchill Hydroelectric Generation project. The firm's client list also includes the likes of Apache, Teck Resources, Boeing and Shell.
KEY INDIVIDUALS Shawn Denstedt QC is regarded as a leading player in Calgary and beyond. He leads the team in its work for Nalcor, and also acted for De Beers in respect of the environmental and regulatory approvals for its Gahcho Kué diamond mine project.
Daniel Kirby continues to be heavily involved in the Bruce to Milton transmission line project as counsel to Hydro One. Peers describe him as a "super brain" and acknowledge his strong understanding of environmental law.
Alan Blair is rated as a "terrific environmental lawyer." Formerly a Crown prosecutor, his practice focuses on corporate due diligence and environmental defence. He left Gowlings in early 2013 to establish Blair Law Group in Vancouver.
Gary Letcher is the head of the environmental department at Edwards, Kenny & Bray LLP in Vancouver. He is highly rated for his contaminated sites practice in British Columbia.
Since publication, Gary Letcher has joined Letcher Akelaitis LLP
Ronald Kruhlak of McLennan Ross LLP "does important work for Alberta," sources agree. "He is extremely knowledgeable in respect of all the statutes and regulations that impact our industry, and has an incredible manner about him," said one client.
Robert Daigneault of Robert Daigneault, Cabinet D'Avocats, Cabinet D'Avocats is recognised as a top environmental player in Québec. His broad-based practice covers environmental litigation, due diligence, and both federal and provincial reviews. He acts for primary and secondary industry clients, real estate developers, financial institutions and environmental services companies, among others.
Dianne Saxe of Saxe Law Office is recognised for her extensive work in Ontario. Her practice covers a broad range, including civil litigation, contaminated sites, climate change and endangered species law.
Paul Granda recently joined Sheahan and Partners from Gowlings.
Anne-Marie Sheahan of Sheahan and Partners G.P. has a strong profile in Montréal. She focuses on environmental counselling, and her clients come from a variety of industries, including mining, pulp and paper, petroleum and chemical processing.
John Stefaniuk of Thompson Dorfman Sweatman LLP operates a diverse practice in Winnipeg, which covers environmental and municipal law, as well as commercial real estate. "He commands respect, and is efficient and cost-effective," say clients.
Foreign Experts (Based Abroad)
Jeffrey Gracer of Sive Paget & Riesel PC in New York is "a fantastic lawyer and a Canadian at heart," say sources. He is the only non-Canadian member of the Canadian Centre for Environmental Arbitration & Mediation.
In Grand Rapids, Michigan, Eugene Smary of Warner Norcross & Judd LLP is also viewed as an active participant in the Canadian environmental law scene. He is an associate member of the Ontario division of the Canadian Bar Association's environmental law section.