Law Times

Law Times • November 18, 2013 Lawyers divided on waste reduction act Page 11 FOCUS Canada in August this year. That puts it slightly behind the national average of 24.5 per cent. British Columbia, he risk of iPods and TVs rocket- the highest performing province, diverts ing in price has formed the basis 35.4 per cent of its waste from landfill. of much of the legislative debate A problem in the act, highlighted by the around the waste reduction act. Ontario Waste Management Association, But lawyers say the proposed legisla- is the fact that waste service providers aren't tion also has the potential to trigger law- subject to the enforcement powers. suits and allow unaccountable bodies to Coop, whose firm acts for the Ontario wield huge power over manufacturers. Waste Management Association, calls this Environment Minister Jim Bradley in- an "indefensible" omission. "It doesn't make troduced the act that was going through its any sense to create such a lopsided regulasecond reading as Law tory regime," he says. Times went to press to It means producthe legislature on June ers will effectively 6, 2013. have to police proBradley said it viders, but their only would help "break the weapon will be a civil recycling logjam", boost lawsuit for a breach or diversion rates, and entermination of concourage the private sectract, Coop suggests. tor to invest more in re"It could very well cycling plants and jobs. lead to more lawsuits He told MPPs: or arbitration," he says. "Under the old law, "From a purely every year, millions of enforcement pertonnes of potential raw spective, it's a very materials for our factoineffective way to ries are being buried in enforce regulatory landfill instead of bestandards," he adds. ing recycled back into Crocker, however, the economy." sees less of a problem The new act aims with directing the enThe authorization of intermediaries is 'encouragto make producers of ing producers to act collectively and not innova- forcement at producwaste more responsible tively,' says Jack Coop. ers. "There are other for hitting recycling provisions in the Envitargets. It would lift, for ronmental Protection example, the 50-per-cent producer funding Act and other regulations that could catch cap on the cost of the blue-box scheme. the service providers," he says. At the same time, the government would An area where he thinks the act falls create a new body called the Waste Reduc- short is its failure to declare that municition Authority with a broader set of powers palities are to have nothing to do with to ensure producers hit recycling targets. blue-box schemes in the future. "The new powers of the [Waste Reduc"When they compete against the prition Authority] should have a huge im- vate sector, it's not an even playing field," pact," says Jack Coop, a partner with Osler he says. Hoskin & Harcourt LLP's environmental The kudos and revenue generated by a litigation practice. successful recycling scheme make it unlikely The body it would replace, Waste Di- municipalities will step aside, he believes. version Ontario, has "very limited powWhile the act draws varying opinions ers," whereas the new authority would be from lawyers depending on their own legal able to issue financial penalties and pros- perspectives and those of their clients, there ecute those who flout the rules. appears to be consensus over its apparent Some people have expressed concern authorization of intermediaries. at the scale of the new powers. "I think it Intermediaries are third parties that negoes too far in terms of the power they put gotiate service provider contracts on behalf in the hands of the authority," says David of producers and potentially carry out a simCrocker, a partner with Davis LLP's envi- ilar role to industry funding organizations. ronmental law practice. "It's encouraging producers to act collec"It would be better if the enforcement tively and not innovatively," says Coop. part of this stayed in the hands of the minIt also allows producers to argue the istry, which has the experience and the in- legislation requires them to act in a nonfrastructure to do this." competitive fashion, something that could The Canadian Environmental Law As- be a defence for violating the Competition sociation has, together with other public Act, he says. interest groups, submitted a paper to the The Canadian Environmental Law Asgovernment warning about the new au- sociation and Crocker also object to the thority's lack of accountability. entrenchment of intermediaries. The asFor example, it wouldn't be subject to the sociation's joint submission says the proviFreedom of Information and Protection sion "simply serves to further complicate of Privacy Act, the Environmental Bill of concepts of responsibility, accountability, Rights or the Ombudsman Act. liability, and add another party to be reguThis will result in "the loss of important lated by a waste reduction authority." accountability structures which apply to orMany people agree the legislation ganizations operating in the public sphere," needs extensive work before it can become the joint submission states. law. The next hurdle it faces is the standing But could the act be just what Ontario committee stage during which public and needs to improve its sluggish recycling private parties can express opinions. record? "Those with clients affected by these The province diverts about 23 per cent changes should be involved in this process of its waste for recycling or composting, ac- or should determine whether clients want cording to 2010 figures published by Statistics them to be involved," says Coop. LT BY CHARLOTTE SANTRY Law Times T SucceSSfully employ thiS increaSingly powerful commercial inStrument New PublicatioN BiLLs of Lading: The Law and PracTice LAzAr SArnA, BCL, MA, DCL, of thE BAr of QUEBEC Boost your practice by sharpening your understanding of bills of lading and letters of credit. As this age-old instrument becomes important to virtually any shipping contract, your clients will find themselves in unfamiliar territory – where they'll turn to you for trustworthy guidance and seasoned insight. Bills of Lading: The Law and Practice contains the expert insight that will help you respond to your clients' queries with confidence. 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