Environmental Law

Evergreen Community (Burlington) Ltd. brought a motion seeking an interim or interlocutory injunction against FirstCanada ULC to prevent alleged ongoing environmental contamination (LNAPL) from FirstCanada's property onto Evergreen's, and an order for inspection under Rule 32 to conduct groundwater and soil testing.

Evergreen argued the contamination stalled its billion-dollar development project.

The court dismissed both requests, finding that the injunction sought was mandatory and Evergreen failed to meet the strict 'strong prima facie case' test, particularly regarding irreparable harm and the ongoing nature of contamination.

The court preferred FirstCanada's expert evidence that a Record of Site Condition (RSC) or Risk Assessment could be obtained despite existing contamination.

The order for inspection was denied due to procedural unfairness and lack of demonstrated necessity for the upcoming summary judgment motion.

The applicants sought an extension of time to bring a motion for leave to appeal an order of the motion judge.

The Court of Appeal dismissed the motion, finding that while the applicants had a timely intention to appeal, their explanation for the delay was inadequate, there was continuing prejudice to the public interest due to delayed enforcement of an environmental order, and the proposed appeal lacked merit.

The court emphasized that lack of merit alone can be determinative in such motions.

The applicant municipality sought declarations and advisory opinions from the Superior Court of Justice regarding a perceived conflict between its statutory duty to maintain highways under the Municipal Act, 2001, and its obligations to protect endangered species and their habitats under the Endangered Species Act, 2007.

The municipality faced charges under the ESA for road maintenance activities that allegedly harmed the mottled Duskywing butterfly and its habitat, arguing it was impossible to comply with both statutes simultaneously.

The court dismissed the application, finding the issues were not ripe for declaratory relief because the municipality had not availed itself of the permit process provided under the ESA, nor had it fully tested its defenses in the ongoing provincial prosecution.

This appeal concerned a constitutional challenge by National Steel Car Limited to the costs of Ontario's Feed-in-Tariff (FIT) Program, arguing they constituted an unconstitutional tax disguised as a regulatory charge, primarily intended for economic stimulus.

The appellant contended that the program's true purpose was not related to electricity regulation.

The Court of Appeal upheld the application judge's decision, dismissing the appeal.

The court found that the FIT Program's primary purpose was regulatory, aimed at increasing renewable energy generation, improving air quality, planning for future supply needs, and encouraging Indigenous and community participation, with economic stimulus being an incidental, not dominant, characteristic.

The court also affirmed the sufficiency of the application judge's reasons and his assessment of expert witness bias.

The Receiver, msi Spergel Inc., sought court approval for its First Report, an increase in its Borrowings Charge, approval of a sales and marketing process (SISP) for the property, and approval of its fees and counsel's fees.

The Receiver also sought an anticipatory release from liability for proposed environmental remediation work, save for gross negligence or wilful misconduct.

The court approved all requests except for the anticipatory release and discharge of the Receiver from environmental liability, citing a reluctance to grant declaratory relief for actions not yet undertaken and in the absence of a full evidentiary record.

Intact, an insurer, appealed a summary judgment dismissing its action to recover $2.9 million in excess remediation payments for an environmental spill from other parties (pollutant owners/controllers and their insurer).

Intact sought recovery under s. 99(2)(a) of the Environmental Protection Act and the doctrine of unjust enrichment.

The Court of Appeal dismissed the appeal, holding that Intact, as a voluntary payor beyond its policy obligations and without direct harm to its own property, did not qualify for compensation under s. 99(2)(a) of the EPA.

Furthermore, the unjust enrichment claim failed because the primary benefit of the payments accrued to Intact's own insured, and the payments were made voluntarily with knowledge of the respondents' position.

Vidhya Ramdas appealed two permanent injunction orders issued against her for undertaking unauthorized work on her property within a regulated wetland.

She argued the application judge erred by denying an adjournment and by not requiring the matter to proceed to trial due to contested facts.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the adjournment refusal given the overwhelming evidence that Ramdas proceeded with excavations without the requisite permits.

The court also provided observations on the duties of judges and counsel when dealing with self-represented litigants, noting that opposing counsel were remiss in not fully informing the application judge about the interim injunction and served materials.

Volkswagen Aktiengesellschaft pleaded guilty to 60 charges under the Canadian Environmental Protection Act, 1999, including 58 counts of unlawfully importing vehicles that did not conform to prescribed vehicle emissions standards and two counts of providing misleading information.

The company admitted to installing defeat devices in approximately 128,000 diesel vehicles imported into Canada between 2008 and 2015, which allowed the vehicles to pass emissions testing while emitting substantially higher nitrogen oxide levels during normal driving conditions.

The court imposed a fine of $196,500,000, the largest environmental fine in Canadian history at that time, reflecting the severity of the deliberate deception, the environmental and health risks created, and the need for deterrence and denunciation.

Applicants challenged environmental charges under the Ontario Environmental Protection Act, arguing that provincial environmental legislation should not apply to stevedoring activities on federal Crown property at the St. Lawrence Seaway.

The applicants invoked doctrines of interjurisdictional immunity and federal paramountcy, contending that the provincial provisions impaired federal jurisdiction over navigation and shipping and frustrated the purposes of the Canada Marine Act and Seaway Property Regulations.

The court dismissed the application, finding that neither doctrine applied.

The court held that stevedoring is integral to shipping but that environmental protection requirements do not impair the core federal power.

The court also found that provincial and federal environmental regimes can operate harmoniously without conflict.

A corn grower who neither purchased nor planted genetically modified corn seed brought a proposed class action against the seed manufacturer for negligence, negligent misrepresentation, and breach of the Competition Act.

The manufacturer had commercialized the seed in North America before obtaining approval in China.

The seed's traits commingled with all North American corn, causing China to ban all North American corn imports, resulting in a market glut and price collapse.

The motion judge struck all claims.

The Court of Appeal allowed the appeal in part, reinstating the negligence claim for premature commercialization while upholding dismissal of the misrepresentation and Competition Act claims.

The applicant, a construction company, sought leave to appeal from a judgment of the Ontario Court of Justice dismissing its appeal from sentences imposed for environmental offences.

The company was convicted of two counts of discharging material into a watercourse contrary to the Ontario Water Resources Act and two counts of failing to notify the Ministry of the Environment of those discharges.

The total sentence imposed was $220,000 in fines.

The applicant argued the fines were excessive and that aggravating and mitigating circumstances should have been weighed differently.

The Court of Appeal dismissed the motion for leave to appeal, finding no error of principle and noting that the sentencing judge's weighing of relevant factors was owed deference.

The Canadian National Railway Company (CNR) moved to stay an application brought by the Regional Municipality of Halton and its constituent municipalities (Halton) concerning the applicability of provincial and municipal laws to CNR's proposed intermodal rail hub in Milton.

Halton's application sought declarations on constitutional division of powers issues, arguing that provincial and local laws of general application should apply to the federal undertaking.

CNR contended the application was premature and interfered with an ongoing federal environmental assessment process.

The court granted CNR's motion to stay Halton's application, finding that while the constitutional issues were not hypothetical, the federal environmental review panel was mandated to consider local concerns and impacts, and allowing the application to proceed would be an unwarranted intrusion into the federal process and an inefficient use of judicial resources.

The stay is temporary, pending the completion of the federal environmental assessment and the Minister's decision.

The applicant, Icona Hospitality Inc., sought an order under s. 61(1) of the Conveyancing and Law of Property Act to delete restrictive covenants from the title to its land.

The covenants restricted the site's use solely to a hotel.

Icona proposed a mixed-use high-rise redevelopment, arguing the covenants were spent or unsuitable due to changed planning policies and the area's designation as an Urban Growth Centre.

The respondents, beneficiaries of the covenants, opposed the application, citing potential negative impacts on their own development plans and market competition.

The court dismissed the application, finding that Icona failed to demonstrate that the covenants were spent or so unsuitable as to be of no value, or that their assertion by the respondents would be vexatious.

The court emphasized that the jurisdiction under s. 61(1) must be exercised with caution and an order will seldom be granted if prejudicial to the adjacent landowner, rejecting a simple balancing of monetary interests.

A motion by Ecojustice for leave to intervene as a friend of the court in an appeal concerning environmental contamination liability.

The underlying judgment held the defendant corporation liable in nuisance and under the Environmental Protection Act for approximately $1.8 million in damages.

Ecojustice sought to provide submissions on environmental law implications and the retrospective application of statutory provisions.

The motion judge dismissed the intervention motion, finding that Ecojustice's proposed submissions would not materially assist the court and would cause injustice to the respondents by requiring them to address new arguments without adequate notice.

The defendant, a helper trapper, was charged with using a non-certified trap (Woodstream Oneida Victor Conibear 120) for trapping pine marten, contrary to section 18(1)(a) of Regulation 667/98 under the Fish and Wildlife Conservation Act.

The defendant argued that responsibility for compliance with the regulation rested solely with the head trapper under section 10(2) of the regulation.

The court rejected this argument, finding that helper trappers are independently required to comply with all trapping regulations, including trap certification requirements.

The court convicted the defendant of the offence as a strict liability matter in a public welfare statute, noting the defendant presented no evidence of due diligence.

The plaintiffs brought an action against their former solicitors (Hicks Defendants) for professional negligence, alleging that the solicitors missed a limitation period for an action against previous solicitors (Arnone Defendants) concerning the purchase of contaminated land.

The Hicks Defendants admitted liability for the missed limitation period, and the trial proceeded solely to assess the plaintiffs' damages.

The court awarded damages for environmental remediation costs and a nominal amount for the inconvenience of managing the remediation, totaling $57,712.31.

However, claims for loss of property value, real estate commission on a failed sale, roof replacement costs, excess mortgage interest, and mental distress were dismissed due to lack of expert evidence, legal prohibitions (for commission), or being deemed not reasonably foreseeable consequences of the negligence.

The defendants brought a motion to dismiss the plaintiff's action for breach of a settlement agreement, invoking Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act).

The court found that the defendants' expression (testimony at an Ontario Municipal Board hearing regarding a land development's environmental impact) related to a matter of public interest, thereby satisfying the first part of the anti-SLAPP test.

However, the plaintiff successfully demonstrated that their action had substantial merit, the defendants had no valid defence, and the public interest in upholding the sanctity and finality of settlement agreements in litigation outweighed the public interest in protecting the defendants' expression.

Consequently, the motion to dismiss was denied, and each party was ordered to bear its own costs, given the novelty and merit of the anti-SLAPP motion.

The defendant pleaded guilty to two counts: failing to remit revenues from fishing licence sales over a two-year period (approximately $50,931.92) contrary to the Fish and Wildlife Conservation Act, 1997, and unlawfully possessing fish in excess of the daily possession limit contrary to the Ontario Fishery Regulations, 2007.

The defendant was a 50-year-old Canadian citizen operating a fishing licence sales business who had recently undergone personal bankruptcy and made partial restitution of approximately $30,000 out of $98,000 owed.

The court imposed a 30-day intermittent sentence (served on weekends), a $300 fine for the possession offence, and two years of probation, balancing denunciation and general deterrence against mitigating factors including the defendant's economic circumstances, guilty plea, and restitution efforts.