Law Times

Law Times • November 20, 2017 Page 13 www.lawtimesnews.com is not discharged, the conse- quence could be delays and frus- tration of the entire project. "When I look at how we're going to work through the en- vironmental assessment pro- cess, it's very much on the front of our minds to make sure that [in] the process there is adequate engagement and, quite frankly, private-side actors are quite good at identifying that as an is- sue and addressing it in a mean- ingful way," says Uukkivi. He says proponents can sometimes be better than gov- ernment in engagement because they have a financial incentive to ensuring that the process goes smoothly. Fortier says he tells his clients to build a relationship with the affected indigenous communi- ties rather than treating the duty to consult as a checklist. "That can be a mechanical exercise, as opposed to taking a step back and really focusing on the relationship aspect," says Fortier. "If it's all seen in a relation- ship aspect, then your approach becomes significantly different." He says that for a project to be successful in the long run, the relationship is really required. "Oftentimes, the transac- tional mindset gets you to get- ting your permit," says Fortier. "A relationship aspect natu- rally f lows that a permit is just one part of it. There's the ongoing use, plus the decommissioning, so the relationship aspect puts you onside to deal with all of these parts." Fortier says that, with a rela- tionship, the outcomes are far better because there is trust and an ability to deal with a change- over of players on both sides. "It works to the duty consult and also goes into free, prior and informed consent," says Fortier. LT make them worse or they just don't deal with them . . . In On- tario, if there's a serious enough issue or neighbourhood con- cern and the ministry gets in- volved, even if you allocated the liabilities to the purchasers . . . and they're not taking care of it, the ministry doesn't care," says Finney. "You can be held liable." She adds that such future ex- posure could be worse for the vendor. Many contaminated lands in cities were left undeveloped because the costs of remedia- tion exceeded their values, notes Charles Kazaz, partner with Blake Cassels & Graydon LLP, who practises in both the firm's Montréal and Toronto offices. Kazaz says this is why main- taining or containing the level of contamination was seen as the way to manage them for years, but he adds that the situ- ation has changed recently be- cause density and development potential can now support the remediation costs. "When I deal with these is- sues, we deal very closely with engineering consulting firms because there's a lot of techni- cal information that we need to generate, and that mostly relates to trying to estimate the cleanup costs," says Kazaz. He says it can be difficult to get that estimate because doing the investigation can be costly and who pays for the assessment can be a factor. He also notes that if a prop- erty's use is being changed from commercial or industrial to resi- dential, standards for residential properties are much more strin- gent, so the cleanup costs will be higher for a residential develop- ment than a commercial one. If the remediation is being done by way of risk assessment — where there is a special dis- pensation from the ministry to go below the generic standard because of certain conditions being met — there tend to be re- strictions on future land use. "There are restrictions on how an owner of a property can use that property in the future, which will impact on land val- ue," says Kazaz. "There is that discussion to take place as to whether risk as- sessment is worth it given the fu- ture land use restrictions and the time and cost associated with it." Kazaz notes that this can be of concern to lenders as well, given that the cost of remediation usu- ally comes out of the future value of the property rather than being paid with by cash on hand. Finney says an added liability factor to consider that lawyers are seeing more of is vapour in- trusion, when contaminants or the soil or groundwater end up off-gassing and going into the air in the building. "It's something that regula- tors are becoming more inter- ested in," says Finney. "People are aware that it's not just in the soil and groundwater, but it might actually be getting into your building and impact- ing the occupants." LT Continued from page 11 Vapour instrusion an added liability factor for properties Duty to consult crucial Continued from page 12 Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. Unparalleled expertise from our award-winning national team of experts CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 ✔ More than 2,000 medical malpractice, personal injury and class action cases. ✔ More than 300 lawyer clients assisted. ✔ Direct access to hundreds of specialists from all areas of healthcare expertise. ✔ A top provider of cost of care reports for your most catastrophically injured clients. Since 2001, we've become a leader in Expert Witness Services in Canada. ntitled-4 1 2017-10-24 2:41 PM FOCUS Charles Kazaz says if a property's use is being changed from commercial or indus- trial to residential, the environmental stan- dards for residential properties are much more stringent. © 2017 Thomson Reuters Canada Limited 00243FB-90554-NP Be aware of the changes in environmental law and policy Available risk-free for 30 days Order online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # L7798-7970-65203 $144 Softcover December 2017 approx. 150 pages 978-0-7798-7970-0 Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Edition Key Developments in Environmental Law 2017 Editor-in-Chief: Stanley D. Berger Key Developments in Environmental Law 2017 features an insightful collection of articles written by renowned environmental lawyers and environmental professionals. Included in this release are the following: • Reflections on Canada's 2017 Initiatives to Amend the Canadian Environmental Assessment Act, by Stanley D. Berger • The Bilcon NAFTA Tribunal: A Clash of Investor Protection and Sustainability-based Environmental Assessments, by Meinhard Doelle • Canada Targets Implementing a Comprehensive Ban on Asbestos and Asbestos-Containing Materials by 2018, by Jennifer Fairfax, Patrick G. Welsh, Rebecca Hall-McGuire and Isabelle Crew • Prophet River First Nation v. Canada (Attorney General): Did the Federal Court of Appeal Get it Wrong, Again? by Kirk N. Lambrecht Q.C. • Great Haste Makes Great Waste – Case Comment on Keswick Presbyterian Church v. Ontario (Ministry of the Environment and Climate Change), by Marc McAree, Richard Butler and Robert Woon • Making Out the Due Diligence Defence in an Environmental Prosecution: Case Comment on R v. ControlChem Canada Ltd., by Marc McAree, Matt Gardner and Giselle Davidian • Has the Court Paved the Way for Plaintiffs to Profit off of Purchasing Contaminated Sites? Damage Awards Intended to Benefit the Environment May only Result in Windfalls for Plaintiffs, by Natalie Mullins • Urgenda Foundation v. The State of the Netherlands - Precedents and pitfalls of an innovative approach to state liability for climate change, by James Rendell • To pierce, or not to pierce – or is that even the question? A comment on the still undecided Chevron Corporation v. Yaiguaje appeal, by Alex Smith and Mark Strychar-Bodnar • The Impact of Brexit on UK Environmental and Nuclear Law, by Simon Tilling and Ian Truman

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