Environmental Law - ONCA

The Independent Electricity System Operator (IESO) appealed a lower court's interpretation of its standard-form "feed-in-tariff" (FIT 1) contracts with solar energy suppliers.

The dispute centered on whether suppliers breached contracts by "optimizing" their facilities (installing more efficient solar panels) without IESO's consent, specifically regarding changes to DC energy capacity and DC/AC ratio.

The application judge found that consent was only required for features outlined in the application or contract cover page, which did not include DC capacity or DC/AC ratio.

The Court of Appeal upheld this interpretation, dismissing IESO's appeal, finding no reversible error in the application judge's reasoning regarding contract interpretation or the impact of optimizations on metering plans.

This appeal arose from the dismissal of a class proceeding claiming damages against the Crown for negligence related to the presence of Bovine Spongiform Encephalopathy (BSE) in Canada between 2003 and 2008.

The trial judge dismissed the claim, finding it barred by section 9 of the Crown Liability and Proceedings Act, and also that no duty of care was owed and no negligence occurred.

The Court of Appeal upheld the dismissal, focusing solely on the application of section 9.

It found that various government programs providing financial assistance to cattle farmers in response to the BSE outbreak constituted "compensation" under section 9, thereby barring the negligence claim as it sought double recovery for the same factual basis of loss.

Horn Ventures International Inc. appealed the dismissal of its application to compel Xylem to sell it property, arguing that a binding agreement for sale was triggered by waiving a condition in an Offer to Lease.

The key issue was whether the "Obligation to Purchase" provision could be triggered before environmental remediation of the property was completed.

The Court of Appeal upheld the application judge's interpretation that the obligation to purchase arose only after Xylem advised that remediation was complete, and Horn Ventures could only waive the environmental consultant's certificate, not the completion of remediation itself.

The appeal was dismissed, as no reversible error was found in the application judge's contractual interpretation.

The appellants, Jason Geil and Geil Style Enterprises Inc., appealed a finding of contempt for violating a consent order by dumping fill on wetlands.

They argued the motion judge erred by relying on hearsay, making a finding without evidence of the precise timing of the fill, and accepting a late-filed affidavit.

The Court of Appeal dismissed the appeal, finding no merit in the submissions.

The court held that the motion judge relied on firsthand evidence, the precise date of the fill deposit was not material as it occurred after the order, and accepting the late affidavit was within the judge's discretion.

The finding of contempt was entitled to deference.

The appellant, a heavy electricity user, challenged the constitutionality of the Global Adjustment component of Ontario's electricity pricing formula, which funds the Feed-in Tariff (FIT) program.

The appellant argued that the FIT program component was a colourable attempt to disguise a tax as a regulatory charge, designed to provide economic stimulus and subsidies to preferred communities (aboriginal peoples, co-operatives, and municipalities) rather than to regulate electricity generation.

The motion judge struck the applications, finding the Global Adjustment was a valid regulatory charge within a closed system.

The Court of Appeal allowed the appeal, finding the appellant's colourability challenge was sufficiently plausible that the applications should not have been dismissed on a pleadings motion and should proceed to a full hearing on the merits.

This appeal concerns the applicable scale of costs when a municipality unsuccessfully appeals an expropriation matter to the courts.

The Ontario Municipal Board ordered compensation to the property owner.

The municipality appealed to the Divisional Court, which dismissed the appeal but awarded only partial indemnity costs of $7,500 rather than full indemnity costs of $23,586.84.

The Divisional Court declined to apply section 32(1) of the Expropriations Act, ruling that ordinary court costs rules applied.

The Court of Appeal allowed the appeal and held that the principle reflected in section 32(1) should apply to court proceedings, entitling the successful respondent to full indemnity costs.

The appellants appealed a decision of the Superior Court regarding the interpretation of a "Net Developable Area" clause in two agreements for the purchase and sale of development lands.

The central issue was whether tableland used for storm water management ponds was included in the definition of Net Developable Area when such lands fell within the Protected Countryside designation of the Greenbelt Plan.

The Court of Appeal upheld the application judge's interpretation, finding that the parenthetical exception did not apply to Greenbelt lands and that the terms "open space lands" and "Greenbelt lands" have distinct meanings subject to different planning controls.

The appellant sought a declaration that a zoning by-law provision limiting gross leasable commercial floor area for a "community shopping centre" to 4,645 m² (50,000 ft²) did not apply to developments with five or fewer separate spaces for lease or occupancy.

The appellant argued that "community shopping centre" must be a type of "shopping centre" as defined in the by-law, which requires six or more separated spaces.

The application judge dismissed the application, finding that "community shopping centre" was a distinct term from "shopping centre" and that the provision applied regardless of the number of units.

The Court of Appeal upheld the dismissal, finding no error in the application judge's contextual interpretation of the by-law in light of the Official Plan.

The appellant, owner of a commercial property in Windsor, Ontario, sought leave to amend its statement of claim in a second action to add a claim for breach of statutory duty under the Environmental Protection Act.

The motion judge refused the amendment on the grounds that it was statute-barred under the Limitations Act, 2002 and constituted an abuse of process.

The Court of Appeal upheld the decision, finding that the claim was clearly statute-barred and that the proposed amendment would constitute an entirely new cause of action against different parties.

The court noted that the appellant had the option to amend its statement of claim in the first action instead.

The appeal was dismissed, and costs were fixed at $30,000 inclusive.

The appellants purchased railway land in Niagara Falls from Canadian National Railway Company (CN) in 2008, with CN taking back a mortgage.

The appellants defaulted and CN sued.

The appellants brought a third-party action against their solicitors (McMillan LLP, Philip Thompson, and Marssa Giahi) for negligence, claiming they failed to properly advise about a Director's order under the Environmental Protection Act registered on title.

The respondents obtained summary judgment dismissing the third-party claim.

The appellants appealed, arguing the motion judge erred in applying Rule 20 principles and that genuine issues for trial existed regarding the duty of care, knowledge of the Director's order, and causation.

The Court of Appeal upheld the summary judgment, finding no negligence claim against McMillan due to lack of involvement in the final transaction, and no duty to warn Thompson and Giahi given the "as is" agreement and client's explicit instructions not to investigate environmental concerns.

The appellant, a commercial property owner, appealed the dismissal of its action under Rule 21 of the Rules of Civil Procedure.

The appellant sought declaratory relief that the respondents were "persons having control of a pollutant" under section 99 of the Environmental Protection Act and were liable for contribution or indemnity regarding lead contamination on the property.

The motion judge dismissed the action on the grounds that it disclosed no reasonable cause of action and was frivolous and vexatious.

The Court of Appeal upheld the dismissal, finding that the statement of claim contained a "radical defect" by failing to allege facts necessary to support the claim, specifically failing to plead when the first discharge of lead occurred or that the respondents had control of the pollutant immediately before such discharge.

This decision addresses motions for leave to intervene and to file records in a constitutional reference concerning the Greenhouse Gas Pollution Pricing Act.

The motion judge granted leave to intervene to twelve parties, including three Attorneys General as of right and nine additional parties seeking discretionary leave.

The judge declined to grant leave to one individual applicant.

The decision also addresses the scope of factums, oral argument time allocation, and the relaxed approach to supplementing the record in constitutional references as a court of first instance.

The Crown appealed a sentence imposed on a winery corporation that pleaded guilty to discharging material into a watercourse in violation of the Ontario Water Resources Act.

The trial judge imposed a fine of $600, invoking section 59(2) of the Provincial Offences Act to relieve the defendant from the statutory minimum fine of $25,000.

The appeal judge increased the fine to $5,000, still below the minimum.

The Court of Appeal allowed the Crown's appeal and imposed the minimum fine of $25,000, holding that section 59(2) must be applied with appropriate restraint to avoid undermining the deterrent purpose of minimum fines in public welfare legislation.

The appellants appealed a contempt of court order finding them in breach of a restoration order issued by Lahaie J. The appellants had been convicted under the Conservation Authorities Act for interfering with and removing material from wetlands.

The restoration order required them to rehabilitate and restore the wetlands to conform with guidelines set by the Mississippi Valley Conservation Authority within six months.

The appellants argued the order was ambiguous and did not clearly specify what they were required to do.

The Court of Appeal upheld the contempt finding, holding that the order was sufficiently clear when read in context with the judge's reasons, and that the appellants deliberately and wilfully disobeyed the order rather than being unable to comply with it.

The applicants sought leave to appeal their convictions under the Environmental Protection Act following a 14-day trial and a subsequent appeal to the Superior Court of Justice.

The applicants were convicted of nine provincial offences related to discharging contaminants into the environment and failing to comply with lawful orders issued following catastrophic propane explosions at their facility that killed one employee and displaced approximately 12,000 residents.

The Court of Appeal considered whether leave to appeal should be granted under section 131 of the Provincial Offences Act, which requires identification of a pure question of law that is essential in the public interest or for the due administration of justice.

The court found that the two grounds of appeal raised by the applicants were fact-laden and did not identify pure questions of law transcending the unique factual circumstances of the case.

Leave to appeal was refused.

The Court of Appeal for Ontario considered whether a 1985 indemnity provided by the Province of Ontario to Great Lakes and Reed covered the costs of complying with a 2011 Director's Order requiring remedial work at an abandoned mercury waste disposal site near Dryden, Ontario.

The motion judge had granted summary judgment in favour of Weyerhaeuser and Resolute, finding both were entitled to indemnification.

The appellate court was divided.

The majority (Brown and Lauwers JJ.A.) held that the 1985 indemnity did cover the costs of complying with the Director's Order, but found that Resolute had no legal interest in the indemnity because Bowater had assigned the full benefit to Weyerhaeuser in 1998.

The majority remitted the issue of Weyerhaeuser's rights as assignee to the trial court.

Justice Laskin dissented, arguing the 1985 indemnity covered only third-party pollution claims, not first-party regulatory compliance costs.

The appellant appealed a summary judgment order dismissing its claims in nuisance and negligence relating to contamination of its lands.

The Court of Appeal upheld the motion judge's decision, finding that the appellant failed to produce evidence of negligence or that the respondents knew or ought to have known the facts necessary to ground an action in nuisance.

The court rejected the appellant's argument that the respondents had a duty to inspect or supervise the activities of dry-cleaning tenants on their property, and found that environmental reports obtained by the respondents did not put them on notice of contamination migrating to the appellant's lands.

Indigenous Ecuadorian villagers obtained a US$9.5 billion judgment against Chevron Corporation in Ecuador for environmental pollution.

They sought to enforce the judgment in Ontario against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada.

The motion judge granted an order requiring the plaintiffs to post security for costs of approximately $942,951 before the appeal could proceed.

The appellants moved to vary this order.

The Court of Appeal set aside the security for costs order, finding that the motion judge erred in principle by failing to conduct a holistic analysis of the justness of the order in all circumstances.

The court emphasized that security for costs orders must be just and should not be used as a litigation tactic to prevent cases from being heard on their merits.

A tenant operating a dry cleaning business appealed a summary judgment dismissing his claim for wrongful termination of his commercial lease.

The landlord had terminated the tenancy based on the tenant's failure to complete a government-approved training course in the management of contaminants and wastes, as required by regulation and the lease.

The Court of Appeal found that the landlord failed to comply with the strict notice requirements under the Commercial Tenancies Act by not identifying the specific breach in the termination notice.

The court also found that the tenant had presented uncontradicted evidence that the required course was unavailable and that the Ministry of the Environment had inspected the premises, suggesting the tenant may have satisfied the regulatory requirements through alternative means.

The appeal was allowed, the summary judgment was set aside, and the matter was remitted for assessment of damages.

The appellant purchased a commercial property that was contaminated by hydrocarbons that had migrated from an adjacent former gas station property.

The respondents moved for summary judgment to dismiss the action as statute-barred under the Limitations Act, 2002, arguing that the appellant knew or ought to have known of the contamination more than two years before commencing the action.

The motion judge granted the motion, finding that the appellant had knowledge of the claim by March 9, 2012, or alternatively by March 30, 2012.

The Court of Appeal allowed the appeal, finding that the motion judge made palpable and overriding errors by equating the appellant's suspicion of contamination with actual knowledge of contamination, and by failing to consider the relevant circumstances of the multi-property transaction and the waiver of conditions.