Annual Report 2014/2015

  • July 14, 2015

Submitted by Section Chair, Jennifer Agnolin

Summary of Meetings

Number of Meetings Held: 3

September 17, 2014
Guest Speakers: Jana McLean, Bull Housser Tupper, and Nicholas Hughes, McCarthy T├ętrault
Meeting Title/Topic: Key Update on Cost Recovery Actions: J.I Properties Inc. v. PPG Architectural Coatings Canada Inc.
Synopsis: The speakers reviewed and led discussion on the recent precedent-setting decision in J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc.. Mr. Hughes reviewed contaminated sites regulatory development, enforcement, and case law history in British Columbia, setting the stage and context for the case review.

Ms. McLean, counsel for the successful plaintiff in this case, discussed the arguments made at trial and the ultimate decision, noting four key points discussed in the decision:

• The limitation period (when it commences in a cost recovery claim)
• Who a "responsible person" is under the Environmental Management Act and the application of statutory exemptions
• Reasonable remediation costs, and
• Allocation of costs

May 7, 2015
Guest Speakers: Robert Wickett, Q.C., Lawyer and Vice Chair of the Environmental Appeal Board, Monica Danon-Schaffer, Professional Engineer and Environmental Appeal Board Member, and Nicholas Hughes, McCarthy Tetrault
Meeting Title/Topic: Practice Tips For Appearing Before the Environmental Appeal Board From the Environmental Appeal Board
Synopsis: Robert Wickett noted that the EAB will soon be subject to the Administrative Tribunal Act which will result in some key procedural changes. He then discussed Supreme Court of Canada Saguenay case re applicable standard of review. Mr. Wickett ended with key practice tips including points on document organization, retaining appropriate experts.

Dr. Monica Danon-Schaffer provided an expert's view at qualifying an expert, noting the importance of ensuring that your expert is indeed an expert in the exact issue being appealed and not just a broad subject matter expert. Key practice tip: be concise and chronological with your evidence.

Nicholas Hughes focused on oral appeal, noting that preparation is identical to appearing before the Supreme Court of BC with some key differences: to adjust the presentation for a 3 person panel that includes technical experts, that there is some flexibility with the rules of evidence (ex. uses Power Point to present evidence where appropriate). He suggested to ask for leave to make additional submissions if needed.

During the Q&A, EAB members provided examples of where the EAB may allow flexibility with evidence, within reason.

May 27, 2015
Guest Speakers: Melinda J. Skeels, Racliff & Company Ryan Dalziel, Bull Housser & Tupper
Meeting Title/Topic: Saik’uz First Nation and Stellat’en First Nation Decision: First Nations Claims for Nuisance and Breach of Riparian Rights
Synopsis: This joint meeting was held with the Aboriginal Law - Vancouver Section. Saik'uz First Nation and Stellat’en First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154 ("Saik'uz") established that First Nations can bring claims for breaches of Aboriginal rights, title, and other property interests before having established those rights. Ms. Skeels, counsel for the plaintiff First Nations, and Mr. Dalziel, counsel for Rio Tinto Alcan Inc. ("Alcan"), explained the case and discussed its implications.

Comments and Observations of the Chair

Last year, the Environmental Law Section sent out a questionnaire to its members asking for input on preferred meeting times, places and topics. This year the Section focused on creating meetings that followed the results of the survey, and found the response positive as reflected by good attendance numbers.

In particular, the Section notes that sending meeting invites to members of other Sections that may have an interest in a meeting topic boosts attendance. We also have had success this year, as well as past years, jointly organizing a meeting with the Aboriginal Law Section. Given the overlap in the two areas of law, we hope to jointly host a meeting with the Aboriginal Law Section annually. The Environmental Law Section may also explore joint meetings with other Sections in the future.