CANADA Law and Practice Contributed by: Laura Duke, Will Shaw and Emma Russell, Lawson Lundell LLP
this is provided for in statute, which may class cer- tain categories of individuals as being responsible for remediation and enable cost recovery for remediation among these classes. However, there is significant variation among Canadian jurisdictions on the specif- ics of these statutory schemes. In general, regulatory authorities have the power to issue remediation orders to ensure that remediation is carried out. This may occur if the contamination is severe or if the person responsible will not voluntar- ily carry out the remediation requirements. A person liable for remediating contaminated land can often seek recourse from the original polluter or former land- owner. Such actions may be available in contract law or tort law, or through the above-mentioned statutory cause of action. Often, liability for known and unknown contamination may be addressed in purchase and sale contracts. Parties seeking to rely on contractual terms to recover their costs or limit liability will need to seek a remedy through those mechanisms. 12.2 Clearing Contaminated Land Environmental legislation in most provinces permits regulators to order current owners and operators, as well as those who formerly owned or controlled con- taminated property, to carry out remediation meas- ures. Those who are responsible for cleaning up the contaminated land will generally engage qualified environmental professionals to oversee and carry out the remediation to ensure that it meets all legal stand- ards. 12.3 Determining Liability Liability is generally determined both according to the “polluter pays” principle and on a joint and several basis. The “polluter pays” principle provides that those who pollute will generally be responsible for the costs associated with the pollution they cause. More than one person can be liable for remediation of contami- nated land, with liability typically apportioned accord- ing to the degree of fault or contribution by the parties to the pollution.
In British Columbia, remediating parties may claim both litigation legal costs and legal costs incurred throughout the actual remediation of the contami- nated site. However, based on the “joint and several” nature of liability, any individual defendant may be liable for the entirety of the remediation costs if they are the only extant or non-impecunious party. Particu- larly given the historical nature of many contaminated sites, in practice this can mean that “polluter pays” gives way to a “last person standing” basis for liability. 12.4 Proceedings Against Polluters Generally, proceedings can be brought against pol- luters, landowners or occupiers of land who are responsible for contamination. This can occur through statutory causes of action set out in the applicable environmental protection legislation or through com- mon-law causes of action such as nuisance, negli- gence, trespass or loss of property value. 12.5 Investigating Environmental Accidents Investigations into environmental accidents are led by the responsible federal or provincial regulatory author- ity and will likely include site investigations, the collec- tion of documentary evidence from those responsible, and interviews with relevant witnesses and stakehold - ers. Authorisation- and permit-holders generally have a duty to comply with such investigations and, where compliance is not forthcoming, many regulators also have powers to compel a person or company to pro- vide documents or attend interviews. 13. Climate Change and Emissions Trading 13.1 Key Policies, Principles and Laws Although a large part of the Canadian economy is resource-based, the country’s economy varies greatly from coast to coast (as does politics). As such, the strategies implemented to combat climate change have been highly varied. As it currently stands, a patchwork of different environmental policies is in effect across the country, with varying adherence to policies concerning carbon credits, renewable energy credits and emission standards.
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