Renewable energy approval regulation amended
On November 2, 2012, certain amendments to O. Reg. 359/09, the renewable energy approval (REA) regulation, came into force. These amendments make the following changes, among other things:
- They crystallize the noise receptor locations identified in a project proponent’s draft site plan, provided that the proponent submits its REA application within 18 months of the date that the first draft site plan was published. (The period has been extended from six months, but the Ministry of the Environment’s [MOE’s] discretion to grant an extension has been removed.)
- They significantly limit the ability of the Environmental Review Tribunal (ERT) to "stop the clock" on the prescribed six-month timeline for a REA appeal. Previously, the ERT could adjourn the proceedings, pending the resolution of a related application for judicial review. The Divisional Court may still stay REA appeal proceedings, and the ERT may still adjourn the proceedings if both parties consent or if necessary to secure a fair and just determination on the merits.
- They revise certain requirements of the Natural Heritage Assessment process, including by authorizing the construction, installation or expansion of a transmission or distribution line, or the expansion of an existing transformer station, distribution station or transportation system, within provincially significant southern and coastal wetlands if, among other things, an environmental impact study report is prepared in accordance with Ontario’s Ministry of Natural Resources’ Natural Heritage Assessment Guide.
For more information, please see Amendments to O. Reg. 359/09.
Proposed framework to modernize natural resource management
On November 14, 2012, the Ministry of Natural Resources (MNR) released a discussion paper titled "Taking a Broader Landscape Approach." The paper proposes a policy framework in which the MNR would streamline the approvals processes, including through legislative and regulatory amendments; redesign certain MNR programs with the goal of improving their efficiency; take a more strategic approach to partnerships and funding priorities; and shift the MNR’s focus from species to broader ecosystems.
The MNR will accept submissions on the framework until January 4, 2013. For further information or to access the electronic submission form, please see Taking a Broader Landscape Approach.
Court finds plaintiffs caused their own misfortunes regardless of prior owner’s potential negligence
On November 21, 2012, the Ontario Court of Appeal (OCA) reaffirmed that for a plaintiff to receive damages from a negligence claim, the defendant’s negligence must have actually caused the plaintiff’s loss. In the case of Biskey v. Chatham-Kent (Municipality) (CK), the Biskeys had purchased contaminated property that, unknown to them at that time, had previously been used as a landfill. In the course of seeking a building permit, the Biskeys learned of the property’s previous use and sued CK, a prior owner of the property. The Biskeys argued that CK owed them, as subsequent purchasers of the property, a duty of care to properly notify them of its true condition; in not doing so, they argued, CK was negligent and breached its duty. The Superior Court of Justice agreed and awarded the Biskeys damages of $386,142, which included the additional construction costs they incurred as a result of the landfill on the property. (For further information on the Superior Court judgment, please see Torys’ March 2011 EH&S Bulletin.)
In reversing the Superior Court’s ruling, the OCA found it unnecessary to deal with the issues of whether CK owed the Biskeys a duty of care and whether CK breached that duty. Instead, the OCA ruled that the trial judge erred in finding that the losses claimed by the Biskeys were attributable to or caused by the negligence of CK. According to the OCA, the trial record showed that before the Biskeys commenced construction, they knew that the property had formerly been used as a landfill and that, consequently, they were bound to incur significant additional construction costs. Prior information regarding the property had been disclosed to the Biskeys in several site assessment reports, as well as from the preliminary work done by their contractor. Before the Biskeys commenced construction, the owners of the property immediately prior to the Biskeys offered to take it back and refund the entire purchase price. The OCA indicated that this provided the Biskeys with an opportunity to substantially satisfy their claim. In addition, the OCA noted that the Biskeys’ damages would have been about $25,000 had they accepted the prior owners’ offer, and that the Biskeys ultimately recovered $100,000 from other defendants (so the Biskeys could have avoided all their losses). The OCA concluded that when the Biskeys decided to reject the prior property owners’ offer and proceed with the construction, knowing that they were building on a landfill and that they would incur added costs, any causal link with CK’s alleged negligence was broken. The OCA therefore allowed CK’s appeal, set aside the trial judgment and dismissed the action.
To read the full OCA decision, please see Biskey v. Chatham-Kent (Municipality).
Government releases second regional plan under Alberta’s land-use framework.
The Alberta government recently invited the public, stakeholders and municipalities to offer input on recommendations made by an advisory council for the development of Alberta’s second regional plan, the South Saskatchewan Regional Plan (SSRP). The SSRP will focus on the water supply, economic development and conservation needs of the region. The plan covers an area that comprises approximately 12% of Alberta’s land base and includes 45% of Alberta’s population. As reported in Torys’ October 2012 EH&S Bulletin, Alberta’s first regional plan, the Lower Athabasca Regional Plan, was approved and has since come into effect.
Public consultation sessions will be held across the South Saskatchewan region from November 6 to December 6, 2012. For more information or to access the online submission form, please see Public and Stakeholder Consultations.
Court reaffirms importance of specifying the "constructor" and its obligations in construction contracts
In Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd., the Supreme Court of Yukon considered, among other issues, whether the Yukon government was the "constructor" under Yukon’s Occupational Health and Safety Act (OHSA). In this case, the government, a contractor and the contractor’s supervisor were all been charged with offences under the OHSA after a blaster had set off an explosive charge that resulted in numerous rocks falling on occupied homes nearby. In its decision, the Court considered the definition of “constructor” under the OHSA (which is very similar to the definition of that term under Ontario’s Occupational Health and Safety Act) and the contract under which the government retained P.S. Sidhu Trucking (PSS) for the construction of the road. Notwithstanding that the contract indicated that PSS assumed the responsibilities of the constructor and agreed to comply with the OHSA and its regulations, the Director of Occupational Health and Safety alleged that the contract repeatedly stipulated how PSS would perform its obligations (including being required to obtain the government’s approval prior to blasting) and that the government became the constructor for the project. The Court noted that it was preferable that the constructor be identified at the outset of a project to ensure workplace safety. The Court also noted that the intention of the parties regarding who was the constructor, as established by their contract, was a relevant but not a determinative factor. After considering the obligations of the parties under the construction contract, the Court concluded that the control of the blasting remained with PSS – even though it was required to provide certain information to, and obtain approval from, the government prior to blasting. As a result, the Court held that the government was not the constructor of the project and, thus, not subject to the associated obligations.
To read the full Supreme Court of Yukon decision, please see Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd.
By Dennis Mahony, Michael Fortier, Tyson Dyck and Jeff Gracer (Partner at Sive, Paget & Riesel, New York)
To discuss these issues, please contact the authors.
This bulletin is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this bulletin with you, in the context of your particular circumstances.
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