The Anatomy of an Environmental Civil Action: Damages and Getting to Settlement (Archived Video Stream) 

Nov. 28, 2012
Toronto Online


This is the archived version of a program presented on November 28, 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 Three 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



  • Rights-Based vs. Interest-Based mediation and when is one or the other preferable, and how are the processes and outcomes different
  • Choosing your mediator - environmental background vs. commercial background vs. mixed background, and does it really matter?
  • Who must and who should attend mediation, and why?
  • The roles of the client, expert and lawyer at mediation
  • As counsel, how can you assist to keep mediation from going off the rails?
  • As counsel, how and when can you leverage the ‘authority’ of the mediator?
  • What does ‘authority to settle’ really mean?
  • Is the mediation process really ‘without prejudice’, and what ethical constraints are imposed by this and on whom?
  • Do’s and don’ts to ensure a useful mediation process, and to increase the odds of resolving something

Stephen R. Morrison,Cassels Brock & Blackwell LLP



Overview of environmental damages for

    • Obtaining environmental consulting advice
    • Obtaining non-litigation environmental legal advice
    • Investigating and planning, assessing, implementing remediation
    • Costing, timing and implementing various remediation options
    • Future soil removal costs on redevelopment – incremental costs
    • Loss of a property sale
    • Loss of business income
    • Loss of use and enjoyment of the property
    • Increased cost of selling, financing
    • Diminution in value and/or stigma
    • Loss of management time
    • Loss of environmental services and aesthetics
    • Medical monitoring
    • Pre- and post-judgment interest

Litigation costs

    • What the Courts say about the assessment and quantification of damages where contamination is present above acceptable standards: Tridan vs. Shell Canada?
    • What the Courts say about the ‘reasonableness’ concept in assessing damages - Cousins vs. McColl-Frontenac?
    • What the Courts say about the assessment and quantification of damages where there is a claim for diminution in value and stigma only: Tridan vs. Shell Canada and Smith vs. Inco?
    • What evidence do the Courts require to assess environmental damages?
    • The status of ‘natural resource’ damage claims in Canada?

Michael Hebert, Beament Green
Lynn Mitchell, Heenan Blaikie


Mitigation of Damages

  • What the Courts say about the legal meaning of mitigation
  • Who has the legal obligation to mitigate?
  • Who bears the burden to show a failure to mitigate?
  • The raging debate about clean up to the MOE’s generic standards vs. site specific standards vs. risk assessment, and the plaintiff’s obligation to mitigate

Lana Finney, Davis LLP



Elements of Environmental Settlements

    • Minutes of settlement
    • Payment of money
    • Releases
    • Indemnities
    • Resolution of settlement disputes
    • Remediation obligations
    • Assuring remedial obligations
    • Land transfers
    • Vendor-take-back mortgages
    • Obligations to file a Record of Site Condition
    • Certificates of property use
    • Engineering controls
    • Managing health effects
    • Clean up versus risk assessment
    • Severances – vertical and horizontal
    • Security to back-stop indemnities
    • The use of financial assurance and insurance to facilitate settlement

Ethical issues that arise when negotiating settlements to environmental claims? 

  • When might they arise?
  • What might they look like?
  • As counsel, how might you avoid the ethical minefield?

Rosalind H. Cooper, Fasken Martineau DuMoulin LLP
Mark Madras, Gowling Lafleur Henderson LLP


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    For 1 to 3 Participants
    CBA Member: $145*
    Non-Member: $185*

    For 4 or more Participants
    CBA Member: $195*
    Non-Member: $250*
    E-Materials included in the registration fee
    *plus applicable taxes

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