doing business in canada - Davies Ward Phillips & Vineberg LLP

commercial activities, or carrying on a different activity on the land, requires conducting and delivering acharacterization study to the Minister. If the characterization study reveals any contaminants in excess ofpermitted amounts, a rehabilitation plan must be filed with the Minister. When contaminants resulting fromthese industrial and commercial activities are found at the limits of the land in a concentration exceeding theregulatory limit values, or when informed of a serious risk of off-site contamination which could compromise ause of water, the person having "custody" of the land must also give notice to the owners of adjacent lands andto the Minister. In certain circumstances, notices of contamination, as well as characterization studies, must beregistered in the land registry. In addition, municipalities are required to maintain a public list of contaminatedsites and this information may be accessed by the public.OPERATING LIABILITYGenerally, Canadian provinces and territories have two principal mechanisms for protection of the environmentwith respect to commercial and industrial operations (including resource extraction): a general prohibitionagainst the discharge of contaminants; and a system of permits or certificates required for activities that mayimpair the environment. In addition, decommissioning and rehabilitation costs related to waste and wastewatermanagement facilities may have to be secured through financial assurances.Ontario's EPA, for example, prohibits unlawful discharges of contaminants into the environment and requiresany parties that cause or permit such discharges to notify the regulators immediately of an unlawful discharge.Those who cause or permit unlawful discharges may face offence liability, environmental penalties andadministrative orders. To avoid such liability, all operational discharges (to air, water or land) must be approvedby the provincial Ministry of the Environment. Conditions and requirements (including financial assurances) mayapply to such approvals and any alterations to discharging equipment (including sewage and water works) mustalso be approved. Ontario recently proposed a legislative framework to modernize environmental approvals,which would introduce a simplified registry process for low-risk activities and permit single-site, multi-mediaapprovals and single, multi-site approvals for more complex facilities. This proposed risk-based approach, similarto what is already found in British Columbia and Alberta, to be implemented in 2012, would provide greaterflexibility for business.Québec's EQA imposes a duty not to pollute, to report accidental discharges to the Minister of SustainableDevelopment, Environment and Parks, and to conduct clean-up following such discharges of contaminantswithout delay. A certificate of authorization must be obtained before undertaking any construction, industrialactivity, use or change of an industrial process if it seems likely that this could result in the release ofcontaminants in the environment. As in Ontario, the range of regulated contaminants is very broad. The CivilCode of Québec also prohibits companies from causing abnormal inconvenience. In a recent decision, theSupreme Court of Canada concluded that such provision creates a no fault liability scheme in respect ofneighbourhood disturbances. The Court ordered the cement plant in question to pay damages to its neighboursfor the annoyance suffered (even though the cement plant had used due diligence to comply with all applicableenvironmental legislation). While this recent case may have limited relevance in Ontario or other common lawprovinces, the Court did note a parallel between the Civil Code of Québec and the common law of nuisance. TheCourt emphasized their analogous relationship and highlighted that in both these legal systems a scheme of nofault liability in respect of neighbourhood disturbances is accepted in one form or another. It is generallyaccepted across Canada that compliance with regulatory permits is not, alone, a sufficient defence to claims ofnuisance. The Court also noted that the acceptance of no fault liability reinforces the application of the polluterpay principle in Canada.Finally, while Canadian municipalities have traditionally regulated noise and discharges to municipal sewers,municipalities have recently become more active in regulating toxics at the local level. For example, manyCanadian municipalities have recently banned the cosmetic use of pesticides. Similarly, the City of Torontorecently passed a bylaw requiring public disclosure of certain toxics being used or released at facilities inEnvironmental Law 13