The Anatomy of an Environmental Civil Action: Navigating to and Through Trial (Archived Video Stream) 

Sep. 20, 2012
Toronto Online


This is the archived version of a program presented on September 20, 2012.  This will not become available until 2 weeks after the orginal program date.  To order this format please click on the "REGISTER NOW" button.   

Recent decisions (Berendsen and Smith v. Inco) and other developments have profoundly altered the environmental civil action landscape. Coupled with the unique characteristics of environmental torts and civil actions, these developments highlight opportunities and pitfalls that require careful navigation to effectively and efficiently prosecute and defend environmental civil claims. Whether you are a full-time environmental solicitor or barrister, a civil litigator, in-house counsel or an insurance lawyer with environmental experience, you will receive valuable insights at Part Two of this three-part series as leading experts dissect “The Anatomy of an Environmental Civil Action.”

Program Chairs:      
Michael J. Fortier, Torys LLP
Marc McAree, Willms & Shier Environmental Lawyers LLP



Timing in Environmental Civil Actions

  • Limitation periods for environmental claims
  • Tolling Agreements – their utility, form and content
  • Moving cases along (Discovery Plans, Status Hearings and To Be Spoken To Court)
  • When can a party justify the need for more time to obtain additional technical information?  How much time is reasonable and to do what?  When is this request more about delay than obtaining inputs, and what can you do about it?

Julia Schatz, Bennett Jones LLP


The Regulators: Friend or Foe

  • Distinguishing between environmental regulatory liability and civil liability, and the importance of these differences
  • When, why and how to encourage or discourage the regulator into action, and when to or not to in the context of an environmental civil claim
  • Can MOE or TSSA action or the threat of action shift the balance in civil litigation?
  • Can a civil lawsuit shift the prospect of MOE or TSSA action (or non-action)?
  • Are there implications for environmental civil actions given the scope of the ERT’s ‘fairness’ principles, and if yes, what are they?
  • What are the ethical and professional issues to consider before involving the regulator?  Might the deemed undertaking rule apply?  Can this lead to a breach of privilege?  Or, might involving the regulator result in disclosure without consent?

Norm Rankin, Ontario Ministry of the Environment
Frederika Rotter, Ontario Ministry of the Environment
Dianne Saxe, Saxe Law Office



Compelling Environmental Disclosure and Investigations

  • Has the new test of ‘relevance’ reduced the extent of documentary disclosure in environmental proceedings?
  • When, how and why to motion for a further and better affidavit of documents: Rule 30
  • When and how to motion for access to the opponent's property to inspect and take samples for laboratory testing: Rule 32
  • Can the use of Discovery Plans facilitate disclosure?
  • How does the principle of proportionality apply in the context of the disclosure of voluminous documentary productions?
  • What are some unique aspects of discovery in environmental cases: tips, traps and ethical obligations?

Janet Bobechko, Blaney McMurtry LLP
Bryan Buttigieg, Miller Thomson LLP


  • Environmental Experts
  • Duty of the expert and conveyance of the duty to the expert: Rule 4.1
  • What are the ethical and professional considerations for counsel when instructing experts?
  • Rule requirements for expert reports for use as evidence at trial: Rule 53
    • Where and how to retain the expert
    • Junk science. How to avoid, how to deal with when testifying before the court
  • Expert Reports
    • retaining and instructing consultants
    • purposes for the use of the report and by whom
    • limitations of liability and insurance coverage minimums (read the fine print)
    • reviewing reports
    • production of drafts
    • getting to a final report
    • pre-trial report disclosure requirements
  • Expert’s role at mediation
  • Expert’s role at pre-trial
  • Expert’s role at trial

Julia Croome, Eric K. Gillespie Professional Corporation
Marc McAree
, Willms & Shier Environmental Lawyers LLP


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