View full guide »

Environmental protection

Canada is an expansive country with a substantial industrial base, plentiful natural resources, extensive bodies of water and significant coastal, Arctic, forested and agricultural regions. As such it faces a wide range of potential environmental issues.

Canada's Constitution Act, 1867 divides legislative power between the federal Parliament and the provincial legislatures.

While the Constitution Act, 1867 sets out many specific areas of jurisdiction, it does not explicitly dictate who has the power to create environmental laws. As a result, Canadian courts have decided that this power is shared between the two levels of government. In the last few years, this overlapping division of powers has led to provincial constitutional challenges of federal legislation.

A government is able to enact environmental law if it falls under one of the powers listed in the Constitution Act, 1867. For example, federal environmental laws are often enacted under the federal Parliament's jurisdiction to legislate criminal law, fisheries, and peace, order and good government. Provincial environmental laws are generally premised on the provincial power to legislate property and civil rights, and on matters of a purely local nature.

Canada's three federal territories, the Northwest Territories (including the Mackenzie Valley Region and the Inuvialuit Settlement Region), Yukon and Nunavut, derive their legislative powers from land claims agreements, federal legislation and, in the cases of Yukon and the Northwest Territories, powers devolved from the federal government. The environmental laws and regulatory systems in Canada's territories are based on the unique legal and cultural frameworks of the North.

Municipal governments also play a role in Canadian environmental law. Although municipal jurisdiction is not addressed in the Constitution Act, 1867, it is defined by each province governing statute for matters concerning local government.

In addition to government-created law, environmental obligations and liabilities may be incurred pursuant to contract, common law and civil law.

  1. Federal environmental laws
  2. Provincial environmental laws
  3. Municipal measures
  4. Common law and civil law

1. Federal environmental laws

a. Canadian Environmental Protection Act, 1999

The Canadian Environmental Protection Act was first enacted in 1988. It consolidated and replaced several environmental laws that preceded it. In 1999, this Act was replaced by the Canadian Environmental Protection Act, 1999 (CEPA), and the title of that Act has been retained despite subsequent amendments. Today, CEPA is Canada's primary environmental regulatory statute. It establishes the federal authority to regulate a broad range of environmental concerns, ranging from toxic substances to environmental emergencies.

Significant amendments to CEPA were made through Bill S-5 (“Strengthening Environmental Protection for a Healthier Canada Act”). Among other things, Bill S-5 amended CEPA to change the Government of Canada’s approach to the control, management, and prohibition of toxic substances under the Act. It also recognized a right to a healthy environment.

  1. Toxic substances

    Part 5 of CEPA addresses the control, management, and prohibition of toxic substances. This Part of the Act sets out that there are several stages to identifying, prioritizing, and assessing a substance that could (but would not necessarily) lead ultimately to the listing of a substance in the “List of Toxic Substances” under the Act.

    Any substance listed in Schedule 1 of CEPA is classified as toxic and is subject to a series of specific controls. In particular, requests for samples or information on the substance can be issued by the Minister of the Environment and Climate Change. CEPA also outlines procedures for substances that are newly introduced to Canada. It is prohibited to import or manufacture quantities of any substance not listed on the Domestic Substances List above a certain volume, until that substance can be properly assessed by Environment and Climate Change Canada and Health Canada. Additionally, CEPA imposes a duty to report and a duty to take remedial action on persons who own or are in control of a spilled toxic substance. Anyone who contributes to the release of a toxic substance may also be subject to the same duties. Under CEPA, the Minister of the Environment and Climate Change is given authority to issue orders in the case of an environmental emergency.

    The amendments that Bill S-5 introduced in mid-June 2023 expanded the Governor in Council’s general regulation-making powers, primarily as they related to the regulation of “products that may release toxic substances,” even when such products do not contain toxic substances themselves.

  2. Enforcement

    Part 10 of CEPA addresses enforcement. A variety of enforcement powers are provided for under CEPA. Any person in breach of CEPA's provisions may face monetary penalties or, in certain cases, imprisonment. Officers and directors may be subject to prosecution if they authorize, assent to or acquiesce in the commission of an offence, or if they fail to take all reasonable measures to ensure compliance. However, alternatives to the standard prosecution process may be available through Environmental Protection Alternative Measures agreements.

    Minimum and maximum fines are doubled for subsequent convictions. A conviction is deemed to be a subsequent conviction if the offender was previously convicted of a substantially similar offence under any federal or provincial environmental or wildlife protection act. Smaller corporations are subject to lower fines than large-revenue corporations.

  3. Pollution prevention and inventory

    The National Pollutant Release Inventory (NPRI), as authorized by Part 4 of CEPA, provides Canadians with facility-specific information regarding the release (to air, water, and land), disposal and recycling of more than 300 substances. It makes the reporting of emissions mandatory where the amount of emissions is equal to, or in excess of, the reporting threshold, and where one or more of the substances emitted is included in the NPRI Substances List. Any facility required to report its emissions must submit a detailed account to Environment and Climate Change Canada. This information is made accessible to the public.

  4. Greenhouse gas emissions

    There are several regulations under CEPA that regulate greenhouse gas emissions in certain sectors. For example, the Clean Fuel Regulations aim to encourage the use of cleaner fuels and technologies to mitigate climate change and help lower our collective environmental impact. The Clean Fuel Regulations are performance-based. These regulations set progressively more stringent annual reduction requirements, or targets, for the carbon intensity of transportation fuels used in the Canadian market. More specifically, the Regulations require liquid fossil fuel (gasoline and diesel) suppliers to gradually reduce the carbon intensity of the fuels they produce and sell for use in Canada.

    In addition to the regulation of greenhouse gas emissions under CEPA, it is worth adding that the Greenhouse Gas Pollution Pricing Act (GGPPA) implements the federal carbon pollution pricing system with minimum standards that apply in any province or territory that does not have its own, sufficiently strict carbon pricing legislation. Part 1, administered by the Canada Revenue Agency (CRA), applies a fuel charge on certain types of fuel and combustible waste. Part 2, administered by Environment and Climate Change Canada, is an output-based pricing system (OBPS) for industrial facilities. The Supreme Court of Canada heard a challenge to the GGPPA and found the Act constitutional.

    Regulatory authorities under both CEPA and the GGPPA work together to reduce GHG emissions across a range of sectors.

  5. Federal Plastics Registry

    6. On April 20, 2024, the federal government announced its launch of the Federal Plastics Registry, which is a federal database of “plastic resins and certain plastic products” placed on the Canadian market. Under this Registry, a wide range of entities involved in the production, circulation, and management of plastics in Canada will be required to report to the Registry. Entities that manufacture, import, generate or manage less than one tonne of plastic products will be exempt from reporting to the Registry.

    According to the federal website, reporting requirements for the Federal Plastics Registry will be introduced in phases, starting in September of 2025 with Phase 1.

    b. Impact Assessment Act

    The federal Impact Assessment Act (IAA) applies to projects that are designated in the Physical Activities Regulations (Project List) or by the federal Minister of the Environment and Climate Change, such as large projects in the energy, mining and infrastructure sectors. The IAA also applies to certain non-designated projects on federal lands and outside Canada.

    The IAA was recently amended following a Supreme Court decision, dated October 13, 2023 (Reference re Impact Assessment Act, 2023 SCC 23), that found some core components of the IAA to be unconstitutional, including the “screening decision” (whether a federal impact assessment is required), and the “public interest decision” (where a decision is made to allow a project to proceed or not) to be outside the jurisdiction of Parliament and therefore unconstitutional. The federal government unveiled these amendments to the IAA in the Budget Implementation Act, 2024, No. 1 (Bill C-69), which received royal assent on June 20, 2024.

    The amendments aim to address the Supreme Court's concerns in the Reference case, including by clarifying that an impact assessment is only required when a project may have adverse effects within federal jurisdiction. GHG emissions are no longer considered to be an adverse effect within federal jurisdiction. The amendments also more explicitly promote substitution of the federal impact assessment process with other equivalent provincial, territorial, or other assessment processes if they adequately address federal effects. Under the current IAA, designated projects are major projects that may impact areas of federal jurisdiction. The Project List focuses federal impact assessments on projects that have the most potential for adverse environmental effects in areas of federal jurisdiction. The government has announced to make changes to the Project List as part of its five year review of its assessment process.

    The IAA triggers impact assessment automatically for designated projects that require a decision by the Canadian Energy Regulator or the Canadian Nuclear Safety Commission. For other projects, the IAA triggers a screening process by the Impact Assessment Agency of Canada (the Agency) to determine whether an impact assessment is required. In certain cases, a review panel may be appointed and public hearings held.

    Some projects may be subject to both the IAA and provincial environmental assessment legislation - as discussed later under “provincial environmental laws.” If the federal Minister of the Environment and Climate Change is satisfied that the substantive requirements of the IAA can be accomplished through a provincial assessment process, he or she may substitute the provincial process for the IAA process. For major projects that engage both the IAA and provincial environmental assessment legislation, a joint federal-provincial review panel may be established. However, as introduced above, the amendments have broadened the Minister's powers to allow for (a) the substitution of another jurisdiction's process for assessing the effects of a designated project, and (b) the substitution of another jurisdiction's process for assessing the effects of a designated project together and the activities undertaken under an agreement or arrangement with that jurisdiction.

    The IAA seeks to compel proponents to design their projects to prevent significant adverse effects. Impact assessments consider sustainability, along with the positive and negative environmental, health, social and economic impacts of designated projects, and take into account a number of factors that include a consideration of Indigenous rights, knowledge and culture. A project will be permitted to proceed only when the Minister, or other applicable decision-maker, is satisfied that the project is not likely to cause significant adverse environmental effects within federal jurisdiction- or, if such effects are likely, the governor in council then determines that they are in the public interest. Once the decision is made, a decision statement is issued, which sets out the conditions with which the proponent must comply. Failure to comply with the conditions is an offence under the IAA and can result in fines or an injunction.

    The Impact Assessment Act includes specific provisions to ensure impact assessments are conducted in a manner that respects the rights of Indigenous peoples. There are a number of consultation requirements embedded in the Act’s processes. The Act also aims to integrate Indigenous knowledge into the decision-making process, where appropriate.

    c. Fisheries Act

    The Fisheries Act contains provisions to ensure the proper management and control of fisheries and the conservation and protection of fish and fish habitat, including by preventing pollution. It prohibits the deposit of deleterious substances into water frequented by fish. It also prohibits carrying out work that results in the death of fish harmful alteration, disruption or destruction of fish habitat, unless the work is authorized by a permit or the regulations.

    Under the Fisheries Act, the federal government exercises certain regulatory authority over water pollution and water quality. There are a number of sector-specific regulations under the Fisheries Act that establish effluent standards and impose monitoring and reporting requirements. For example, there are separate regulations directed at the mining industry, the pulp and paper industry, and large wastewater systems.

    On June 21, 2019, the Government modernized the Fisheries Act to include additional protections for fish and fish habitat in the form of standards, codes of practice, and guidelines for projects near water.

    d. Transportation of Dangerous Goods Act, 1992

    The shipping, handling, and transportation of dangerous goods are regulated by the Transportation of Dangerous Goods Act, 1992 (TDGA), as well as provincial statutes. The TDGA and associated Regulations set out various rules that prescribe safety standards and shipping requirements for thousands of different dangerous goods. The Regulations also provide a means of communicating the nature and level of hazard and risk associated with these dangerous goods. Together, the TDGA and its Regulations create a complete and comprehensive system of regulation, which aim to prevent hazardous incidents when dangerous goods are being handled in Canada.

    Anyone who handles (ships, transports, and receives) dangerous goods, as defined in the TDGA — whether by road, air, marine, or rail — must comply with the TDG Regulations. The TDGA and accompanying regulations set out specific requirements for consignors, carriers, and consignees.

    Nine classes of “dangerous goods,” ranging from organisms to explosives, are defined in a schedule to the TDGA. The TDGA also addresses issues such as labelling requirements and emergencies, and provides a full suite of enforcement measures. Additional specific and detailed requirements can be found in the Transportation of Dangerous Goods Regulations.

    All provinces have adopted legislation that parallels this federal regime.

    e. Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations

    In October 2021, the federal government passed the Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations, which deal with the control of international and interprovincial movements of hazardous waste and hazardous recyclable material under CEPA, the Canada Shipping Act, 2001, the Impact Assessment Act, and the Environmental Violations Administrative Monetary Penalties Act.

    These Regulations aim to ensure that shipments of hazardous waste and hazardous recyclable material, whether international or inter-provincial, reach their intended destination and reduce the risk of release of contaminants to the environment, in Canada and abroad. Through the Regulations, Canada obtains consent from the importing and transit countries for exports from Canada, as well as from the provincial or territorial jurisdiction for imports into Canada.

    “Hazardous waste” and “hazardous recyclable material” cover a broad range of waste and generally include any solid, liquid, gas, sludge or paste substance that also exhibit certain hazardous characteristics, such as being toxic, corrosive or flammable. This includes residues from industrial operations, manufacturing processing plants and hospitals, as well as other waste, such as lubricants and pesticides. There are key exclusions set out under both definitions under the Regulations.

    There are seven types of movement regulated under the Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations. These include the movement of hazardous wastes and hazardous recyclable materials that are i) imported to Canada; ii) exported from Canada; iii) exported from Canada and imported back to Canada after being conveyed in transit through a foreign country; iv) conveyed in transit through Canada; v) returned to Canada; v) returned to a foreign country of origin; and vi) moved within Canada. The requirements for all but the last of these types of movement are set out under Divisions 1-6 in Part 1. Conditions for the movement of hazardous waste and hazardous recyclable materials within Canada are set out in Part 2 of the Regulations.

    Most types of movement require a permit under the Regulations, as per subsection 185(1) of CEPA 1999. Exporting, importing, or conveying in transit hazardous waste or hazardous recyclable material require that a permit application is made prior to shipping and that permit conditions are met from the time the materials leave the place of origin until they are recycled or disposed of. Currently, no permit is required for interprovincial-only movements of hazardous waste or hazardous recyclable material.

    f. Other federal legislation

    In light of the diffuse nature of environmental issues, there are a wide number of other federal laws that may apply to a particular environmental issue.

    Canada also has special-purpose legislation that applies to the approval of fertilizers, pesticides, and food and drugs. The sale, manufacture, distribution, import and export of substances may be prohibited if they are not otherwise approved under the applicable legislation.

    2. Provincial environmental laws

    Environmental laws and their enforcement vary from province to province. Matters under provincial jurisdiction notably include:

    • Air emissions
    • Water and wastewater treatment and discharges
    • Water withdrawals
    • Waste management
    • The release of contaminants, including issues relating to contaminated lands and brownfield redevelopment
    • Pesticide use
    • Underground and above-ground storage tanks
    • Hazardous materials and residual hazardous materials management
    • The transportation of dangerous substances

    Provincial environmental laws prohibit the discharge of pollutants into the environment, but the definitions of a “pollutant,” a “contaminant,” and the “environment” vary across the provinces.

    A new emission source or facility that may impact the environment typically requires an environmental approval, which may be subject to strict conditions. Existing sources of emissions may also be subject to further controls through the issuance of administrative orders.

    Canada's three federal territories, the Northwest Territories (including the Mackenzie Valley Region and the Inuvialuit Settlement Region), Yukon, and Nunavut, derive their legislative powers from land claims agreements, federal legislation and, in the cases of Yukon and the Northwest Territories, powers devolved from the federal government. The environmental laws and regulatory systems in Canada's territories are based on the unique legal and cultural frameworks of the North.

    a. Environmental assessment

    All provinces have environmental assessment laws, the details of which vary from province to province.

    In Ontario, provincial environmental assessments are governed by the Environmental Assessment Act (the “Ontario EAA”).

    Under the Ontario EAA, Ontario has two types of environmental assessment routes: the comprehensive EA route (under Part II.3 of the Ontario EAA, formerly known as the “individual EA”) and the class EA route (under part II.2 of the Ontario EAA). Generally, the former is dedicated to largescale projects, while the latter is dedicated to smaller-scale projects. The essential difference between the comprehensive EA and class EA routes is that class EAs are a preauthorization framework, wherein a proponent gains an automatic approval for meeting predetermined criteria applicable to a given project “class”, while comprehensive EAs involve a project-specific assessment by a public agency, participation by interested parties, and a discretionary decision made by a provincial representative.

    Multiple amendments over the last few years have led to the implementation of a “project list approach” to comprehensive environmental assessments in Ontario (similar to the federal approach). Now, Ontario Regulation 50/24, entitled “Part II.3 Projects – Designations and Exemptions” (the “Designation Regulations”) sets out the kind of projects that are subject to a comprehensive EA, which include significant waste projects, electricity generation facilities, and waterfront projects.

    Comprehensive EA procedure is set out directly in the Ontario EAA. Project proponents may commence Comprehensive EAs by applying to the Minister of Environment, Conservation and Parks. Following the application, the proponent must propose terms of reference which the Ministry must approve, with or without amendments, if satisfied that the terms are consistent with the purposes of the Act and the public interest. Once terms of reference are approved, the proponent submits an “environmental assessment” that the Ministry must review. At this stage, the Minister may refer the application to a hearing before the Ontario Land Tribunal. With or without a hearing, the Minister may refuse or approve the application, with or without conditions, and must provide written reasons. Members of the public have a right to comment on the application, and persons “with an interest” in the application have a right to participate in the hearing.

    Ontario also has a “class environmental assessment” process for certain types of smaller-scale projects. It generally applies to projects that are carried out routinely and have predictable environmental effects that can be readily managed. Class EA largely applied to municipal public works (like roads and sewers) but some classes applied to private sector proponents as well.

    A document called the Municipal Class Environmental Assessment (“MCEA”), which is incorporated into the Ontario EAA by reference, sets out a standardized planning process for certain classes or groups of activities. The classes, listed from least complex and onerous to most, were classes A, A+, B and C.

    Ontario is in the process of phasing out the class EA process and the MCEA, and replacing it with a streamlined EA framework, enacted in 2020 under Part II.4 of the Ontario EAA. This has yet to go into effect. According to Ontario’s regulatory proposal (posted online for consultation earlier in 2024), the streamlined EA process will cover similar types of projects as that of the class EA but, rather than continuing to apply the MCEA criteria, streamlined EA will be governed by a new regulation (currently under development). Ontario proposes to exclude the private sector from the new regulations, so that only municipalities will be subject to streamlined EA.

    In Québec, environmental assessment processes have been applied in the north of the province since 1975 - with the James Bay and Northern Québec Agreement - and in the south since 1980. The Environment Quality Act (EQA) sets out a rigorous process to assess the impacts of major projects on communities and the environment. Different regimes apply depending on whether any part of the project takes place on territory subject to the James Bay and Northern Québec Agreement and the Northeastern Québec Agreement, and where the process involves an active participation of the Indigenous communities living there (e.g. Crees, Inuit and Naskapis). In southern Québec, the process also favours the participation and consultation of the public through an environmental public hearing board called the Bureau d'audiences publiques sur l'environnement (BAPE).

    In March 2017, the Québec Parliament adopted the Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund. The Green Fund was replaced by the "Fond d'électrification et de changements climatiques" on November 1st, 2020. The former provisions of the EQA which govern the environmental impact assessment and review procedure were notably modified by this amendment Act. Schedule 1 of the Regulation respecting the environmental impact assessment and review of certain project, adopted in March 2018, provides a list of projects that are subject to the Quebec environmental impact assessment and review procedure.

    That said, most importantly, the EQA provides that, on an exceptional basis, the Government will be able to make a project subject to the procedure even though it is not subject to it under the Regulation respecting the environmental impact assessment and review of certain project, provided the Government is of the opinion that the project involves major environmental issues, such as climate change issues. The EQA also gives the public an opportunity to submit observations to the Minister as to the issues that should be addressed by an environmental impact assessment. Furthermore, if such an assessment is considered incomplete, the Minister may declare it to be inadmissible. In addition to conferring investigation and public hearing mandates on the BAPE, the Minister may mandate the latter to hold mediation sessions and targeted consultations. The notion of frivolousness with regard to a public consultation application made to the Minister is also clarified in this new EQA.

    It should be noted that while many projects are not subject to the Quebec environmental impact assessment and review procedure, a ministerial authorization issued by the Minister of Environment, the Fight against Climate Change, Wildlife and Parks (MEFCCWP) may still be required for the project to be implemented. Ministerial authorizations are issued by the MEFCCWP pursuant to Section 22 of the EQA and contain all obligations and conditions related to project (from construction and operation to project termination).

    Under Alberta and British Columbia laws, environmental assessments for a wide range of public and private sector proposals are required. These laws tend to target larger infrastructure and natural resource projects exceeding prescribed operational or other criteria.

    Given Canada's division of constitutional powers, many proposals will trigger both provincial environmental assessment and federal impact assessment requirements. This dual jurisdiction is commonly addressed by provincial and federal laws intended to harmonize assessments and, when possible, facilitate the substitution of a federal impact assessment for a provincial environmental assessment and vice versa.

    A fundamental feature of both provincial environmental and federal impact assessments is the consideration of constitutionally entrenched Indigenous and treaty rights. These rights differ in many ways from those exercisable by the public at large. In many assessments, Indigenous groups rely on judicial principles governing consultation with Indigenous communities, Indigenous consent respecting lands subject to Indigenous rights (including land title), and criteria governing justifiable government infringement of such rights. In certain jurisdictions, specific environmental processes have been entrenched in constitutionally protected agreements negotiated between the federal and provincial governments, and Indigenous groups - such as the James Bay and Northern Québec Agreement.

    b. Environmental enforcement

    A breach of provincial environmental laws may be enforced through voluntary abatement measures, administrative orders, administrative fines or prosecutions. For example, in Ontario, a repeat corporate offender may face a fine of up to $10 million for each day the offence occurs or continues. A repeat individual offender may face up to $6 million per day, plus five years less a day in prison. There may also be a forfeiture of profits gained through non-compliance and liability for cleanup costs, as well as a series of other remedies.

    Similarly, other provincial regimes - such as those in Québec - can rely on strong enforcement measures to sanction non-compliance of environmental laws and regulations within their jurisdiction, which include specific provisions with respect to directors' and officers' liability. Under the EQA, the Minister's powers to issue orders and intervene in other ways are also adjusted. In that regard, the Minister or the Government, as applicable, is also granted the power to limit the exercise of an activity carried on in compliance with the law or to stop the activity or make it subject to new conditions in order to remedy a situation that, on the basis of new or additional information that has become available or new or additional scientific knowledge, is considered to present a serious risk for health or the environment.

    c. Contaminated sites

    Generally, contaminated sites refer to properties that have become contaminated through past usage. In Ontario, the Environmental Protection Act (Ontario EPA) defines contaminant broadly as encompassing “any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that cause or may cause an adverse effect” on human health or safety or on the environment.”

    The Ontario EPA sets out the regulatory requirements for assessing the environmental condition of a site, the cleanup of brownfield sites, and the filing of records of site condition in Ontario’s Environmental Site Registry. Generally, an environmental site assessment (ESA) involves the study of a property to determine if contaminants are present and, if so, the location and concentration of these contaminants. These assessments are often carried out in the context of a sale of property between parties or to obtain financing or a mortgage.

    The Ontario EPA describes two types of ESAs: a phase one environmental site assessment (Phase I ESA); and a phase two environmental site assessment (Phase II ESA). Both types of assessments may be required to fill out of a record of site condition in Ontario. If the property meets the applicable site condition standards, a record of site condition can then be filed in the province’s Environmental Site Registry. If a property does not meet the applicable site condition standards, site remediation would be needed before a record of site condition can be filed in the Environmental Site Registry. Remediation plans typically aim to remove either the contamination source or a receptor, or to block the pathway from the source to the receptor in a way that reduces or eliminates the risk that the contaminant will have a damaging effect.

    The appropriate procedures and activities for the remediation of any particular property must be determined based on the specific circumstances related to that property. Several different approaches may be possible to remediate a particular site, and remediation costs can vary significantly depending on the strategy chosen.

    In Québec, the land protection and rehabilitation regime, introduced by Bill 72, entered into force in 2003. It requires mandatory site characterization study and rehabilitation work for certain events or activities, such as a change in use of land in certain circumstances and the cessation of designated activities. The process promotes transparency by requiring the publication of contamination, decontamination and use restriction notices in the land register. Municipalities are also required to maintain a list of contaminated sites within their borders.

    The regime in Québec relies on qualified professionals to sign the reports that are required under the Environment Quality Act. The Land Protection and Rehabilitation Regulation determines the limit values for a range of contaminants, and defines the types of activities contemplated by the regulation (industrial/commercial/intuitional/sensitive uses). It also establishes the conditions under which groundwater quality must be monitored downstream of the lands where some of those activities take place.

    The information about the existence of contaminated sites is made public through various means. In Québec, the province publishes an inventory containing information on sites that have been contaminated by industrial and commercial activities, or accidental spills, and have been brought to the authorities' attention.

    It should be noted that the EQA contains measures governing the cessation of certain industrial activities and the carrying out of certain projects on a former hazardous materials elimination site. The depollution attestation applicable to municipal water treatment or management works is modified, partly in order to replace the current renewal mechanism by a more flexible system of periodic review.

    d. Carbon pricing

    Climate change and related carbon pricing remains a significant issue in most Canadian provinces. In addition to the federal GGPPA framework, some provinces have implemented their own climate change legislation.

    British Columbia began legislating greenhouse gas (GHG) emissions in 2007 and in 2008 introduced a carbon tax, which applies to the purchase or use of fossil fuel in the province. This was followed by low-carbon fuel standards implemented in 2010, and legislation to manage GHG emissions in the liquefied natural gas industry. More recently, performance standards for select industrial facilities and sectors have come into force, including greenhouse gas emissions benchmarks for liquid natural gas facilities and coal-based electricity generation operations. Concurrently, new reporting regulations require industrial operations that emit over 10,000 carbon dioxide equivalent tonnes per year to report their GHG pollution each year. To support projects that help lower GHG emissions from large industrial operations, the CleanBC Industry Fund is available to industrial operations who have to report their GHG emissions. As part of the 2023 Budget, the British Columbia will transition to an output-based carbon pricing system by 2023 to incentivize industrial emitters to reduce their GHG emissions using a performance-based system. British Columbia has also recently established infrastructure and requirements for issuing emission offset units and funded units.

    Regulations adopted in Québec established a cap-and-trade system to regulate GHG emissions and meet the Québec government's GHG reduction targets. On January 1, 2013, the regulatory regime added compliance obligations for certain Québec emitters to offset their reported GHG emissions with allowances. Allowances can be acquired at inter-jurisdictional auctions, government reserve sales and from other participants in cap-and-trade programs that have excess to allowances for sale. In the case of industrial emitters other than fuel distributors, allowances are also allocated by the government at no charge, but on a declining basis. Emissions can also be offset by credits from certain government-recognized GHG reduction projects that have been validated in accordance with the protocols set by the regulations. Cap-and-trade in Québec is harmonized with the California regime, and is intended to be linked with similar cap-and-trade regimes adopted by other Canadian and U.S. jurisdictions that are members of the Western Climate Initiative.

    3. Municipal measures

    Municipalities may regulate a broad spectrum of activities through legislation, including sewer-use bylaws, noise bylaws, building codes, conservation authorities, and various environmental approvals. In Ontario, for instance, a wide range of provincial and municipal laws empower municipalities to a) make local planning decisions that will determine the future of communities, b) prepare planning documents, such as an official plan (which sets out the municipality's general planning goals) and policies that will guide future land use zoning bylaws (which set the rules and regulations that control development as it occurs), and c) ensures planning decisions and planning documents are consistent with the Provincial Policy Statement, and conform or do not conflict with provincial plans.

    In addition, municipalities in Ontario and Québec integrate environmental approvals with planning approvals. In Ontario, for example, under the Planning Act, municipalities can put approval processes in place that help make planning work clearer and faster, where it is possible and appropriate.

    Some municipalities require comprehensive environmental site investigations and public notification prior to issuing certain permits. For example, before issuing a planning approval or building permit, a municipality may require verification of contamination for the subject property, and may impose a remedial plan plus financial assurance as conditions of approval. In Québec, a municipality cannot issue a construction permit or approve a subdivision of land where the land in question is listed in the municipal registry of contaminated lands - unless the project or subdivision is consistent with an approved rehabilitation plan.

    4. Common Law and Civil Law Obligations

    In addition to government-created law, environmental obligations and liabilities may be incurred pursuant to contract and tort common law principles, as well civil obligations set out in Québec civil law.

    Common law causes of action relating to environmental matters include breach of contract, as well the torts of nuisance, negligence, strict liability, and trespass. Although judicial decisions may vary, the common law principles generally apply to every common law jurisdiction in Canada.

    In Québec, which is a civil law jurisdiction, contractual and extra-contractual disputes are governed by the Civil Code of Québec. Civil liability can also be imposed for environmental harm, but note that significant differences exist between how civil liability is imposed in Quebec than common law provinces.

    Class actions grounded in these common law and civil law obligations are available across all jurisdictions in Canada, although note that the test for class action certification is less stringent in Quebec.

    For all of these causes of action, it is useful to keep in mind that all provinces have legislation on limitation periods, which set out when a claim becomes statute-barred. In Ontario, for example, the general limitation period is two years from the date a plaintiff "discovers" that it has a claim. However, while the Ontario Limitations Act sets out the criteria for determining when a claim is discovered, the degree of knowledge required for discoverability has long been a subject of debate. This is especially true in cases involving land contamination, where contamination can result from a variety of prior or ongoing events, whether intentional, accidental, or naturally occurring. Parties may not know of contamination for some time after it has occurred. As a result, courts and parties have grappled with when the limitation period should begin. Does the clock start when a party completes its own environmental testing to gain specific knowledge of a potential claim? Or does it start some time before, when a party becomes aware of the possibility for a claim?  The answer to these questions will depend on the specific facts of a given case. Recent jurisprudence highlights a spectrum of potential outcomes which may vary widely depending on the context at issue.

     

    Learn more about Gowling WLG services in environmental protection »