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April 28, 2010 - Volume 7, Number 5

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What's Happening

Tailpipe GHG Emission Standards Released

On April 1, 2010 Environment Minister Jim Prentice unveiled the proposed Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations, which are meant to harmonize with the United States national standards.  According to Environment Canada, “Passenger cars and light trucks account for around 12% of total GHG emissions.”

The Regulations would apply to manufacturers and importers of vehicles for sale in Canada, beginning with the 2011 model year.  These companies would be required to comply with fleet average standards for GHG emissions, which would get progressively more stringent.  The Regulations would establish an emission credit trading regime, whereby companies that reduce emissions below their fleet average standards in any given year would earn credits which could be sold to companies that cannot achieve the standards.  Credits could also be earned for “early action”, that is, for measures taken to reduce emissions for the 2008-2010 model years.  The Regulations would also provide incentives for carmakers to reduce GHG emissions other than from the tailpipe, for example by reducing refrigerant leakage from air conditioners, as well as incentives for electric vehicles, fuel cell vehicles, and plug-in hybrids. 

Further information is available on the Environment Canada website and in the Canada Gazette.

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Climate Change Accountability Act Introduced

Bill C-311, the Climate Change Accountability Act, was introduced as a private member’s bill by Bruce Hyer (NDP – Thunder Bay-Superior North) on March 3, 2010.  The bill would require national greenhouse gas emissions to be reduced to 25% below 1990 levels by 2020, and 80% below 1990 levels by 2050. 

Unlike most private member’s bills, this one appears to have some momentum, and has already cleared the committee stage in the House of Commons.  It must still receive third reading in the House and then Senate approval.

The bill is identical to one that was introduced by NDP leader Jack Layton in the last Parliament.  That initial bill was passed by the House but died when Parliament was dissolved for the 2008 election, before the Senate had approved it.

Further information is available on the Parliament of Canada website.

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Minor Amendments Made to Federal PCB Regulations

The Federal PCB Regulations have been amended to allow for the on-site destruction of PCBs in accordance with provincial and territorial legislation, and to clarify certain provisions including those regarding reporting requirements.  Further information is available in the Canada Gazette.

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Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem Extended

Canada and Ontario have extended their Agreement Respecting the Great Lakes Basin Ecosystem for one year, to March 31, 2011.  The Agreement, which was signed in 2007, establishes an action plan for restoring and protecting the Great Lakes, and defines federal and provincial responsibilities.  Four specific priorities have been identified for the coming year:

  • Keeping invasive species out of Lake Superior
  • Addressing algal blooms along the southeast shoreline of Lake Huron
  • Addressing phosphorous releases into Lake Erie
  • Implementing a biodiversity conservation strategy for Lake Ontario

Further information is available on the Environmental Registry.

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MOE Releases Technical Guidance for Risk Assessments

The MOE has released a guidance document called “Technical Update: Use of MOE Component Values in Risk Assessments Submitted under the Record of Site Condition Regulation (O. Reg. 153/04)” (March 2010).  The Technical Update is intended to assist Qualified Persons for Risk Assessment (“QPRAs”) in the preparation of risk assessments during the transition to the recently released (and generally more stringent) standards for soil and groundwater which come into force on July 1, 2011.  These new standards are based on the lowest applicable “component value”, which are set out in a “Rationale Document” (i.e. for any given contaminant, different component values are determined in order to guard against different types of risks, and the lowest of these values is selected as the generic standard for that contaminant).

The Technical Update states that QPRAs may continue to use the “component values” that are set out in the former (1996) Rationale Document for Records of Site Condition filed before July 1, 2011.  However, since those former component values may no longer reflect the best science, “the QPRA should always describe the justification process being relied upon when selecting component values”.  Moreover, “[i]n order to ensure the continued protection of human health and the environment, the MOE may, on a case by case basis, request additional justification regarding the use of component values.”  QPRAs may use the component values set out in the new Rationale Document, which “are considered to be current science by the MOE”.

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OHS Update: Compliance Countdown for Employers with New Workplace Violence Prevention Law
By: Norm Keith, B.A., L.L.B, CRSP, and Cathy Chandler

Employers now only have a short period of time to get ready for the new Workplace Violence Prevention law.  Bill 168, an Act to amend the Occupational Health and Safety Act to prevent and manage workplace violence and harassment comes into effect on June 15, 2010 and is enforceable as of that date.  The amendments explicitly set out a duty for every Ontario employer to take specific steps to proactively prevent and manage workplace violence.  Legal compliance starts with a risk assessment. 

The tragedies of the Lori Dupont workplace murder in Windsor and the Pierre Lebrun shootings in Ottawa highlight the seriousness of workplace violence.

Bill 168 contains definitions for workplace violence and workplace harassment.  Workplace violence means the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker. It also includes an attempt to exercise physical force or a statement or behaviour that a worker could reasonably interpret as a threat to exercise physical force against the worker in a workplace. Workplace harassment means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

Risk Assessment

Employers must conduct a risk assessment of workplace violence that may arise from the nature of the workplace, type of work or conditions of work.  For example, the activities workers perform, whether workers are required to travel, work alone or work late at night as well as access control and security and surveillance systems.  The risk assessment must also consider circumstances common to similar workplaces – the activities or work conditions that certain sectors have in common and circumstances specific to the workplace such as layout and design and geographic location.  If an employer has multiple work locations, each location should be assessed for its own unique risks of workplace violence in addition to the common risks.

Employers must prepare and review at least annually, a policy with respect to workplace violence and harassment.  The policy is required regardless of the size of the workplace or the number of workers.  If more than five workers are regularly employed at a workplace, the policy must be in writing and posted in the workplace.  Employers may prepare separate policies on workplace violence and workplace harassment or they may combine their workplace violence policy with an existing workplace harassment policy.

The employer must also develop a program to implement the workplace violence and workplace harassment policy.  The program must include measures and procedures to control the risks identified in the workplace violence risk assessment as well as measures and procedures for workers to report incidents of workplace violence and harassment to the employer, for summoning immediate assistance when workplace violence or harassment occurs or is likely to occur and how the employer will investigate and deal with incidents or complaints of workplace violence and harassment.  The Bill also places a duty on an employer to take every reasonable precaution for the protection of a worker, if the employer knows or ought to reasonably know that domestic violence may occur in the workplace and likely expose a worker to physical injury.

The employer must also provide information and instruction to its workers on its workplace violence and harassment policy and program.  In particular, the employer will be required to disclose to its workers the risk of violence from a person with a history of violent behaviour who they may encounter in the course of work and if the risk of workplace violence is likely to expose the worker to physical injury.

There are also minor amendments to the work refusal provisions contained in section 43 of the Act and the incident reporting provisions contained in section 52(1) of the Act.  The Ministry of Labour recently released a guidance document titled “Workplace Violence and Harassment: Understanding the Law”.


The Ministry of Labour is committed to enforcing Bill 168.  Employers who have not completed their Risk Assessment, policy, program and training by June 15, 2010 are at risk of enforcement actions including Orders and Prosecutions. Directors and Officers must ensure their organizations are in full compliance or risk personal liability.  Corporations may be fined up to $500,000 and individuals may be fined up to $25,000 or jailed for 12 months or both.  Compliance with Bill 168 is not only the law, it is also the right thing to prevent workplace violence.

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What's Happening

David Estrin spoke in April on “Nuclear Power Challenges – Dealing With Renewable Energy and Environmental Critiques” at the International Bar Association Biennial Conference of the Section on Energy, Environment, Natural Resources and Infrastructure Law in Toronto.

Jennifer Mesquita and David Estrin attended the Canadian Bar Association National Environment Energy and Environmental Law Summit in Montreal and David presented the “David Estrin Prize” for the Best Scholarly Essay by a Canadian law school student in Environmental/Energy/Resources Law.

Harry Dahme (Toronto)

Harry Dahme (Toronto)
Paul R. Granda (Montréal)
Mark Josselyn (Toronto)
David Estrin (Toronto)
Mark L. Madras (Toronto)
Patricia Leeson (Calgary)
K. Alan Blair (Vancouver)

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