Is the proposed amendment to the Competition Act to combat greenwashing really a step forward?

May 7, 2024

Greenwashing is a form of marketing that misrepresents a product, service or practice as having positive environmental effects,¹ thereby misleading consumers and preventing them from making an informed purchasing decision.²

Several initiatives have been launched around the world to counter this practice. In California, a law requires business entities to disclose information in support of environmental claims.³ In France, ads featuring environmental claims such as “carbon-neutral” and “net zero” must include a quick response (QR) code that links to the studies and data supporting such claims.⁴ Within the European Union, a proposal for a directive was published with a view to possibly banning generic terms like “environmentally friendly.”⁵ In South Korea, the Korea Fair Trade Commission proposed an amendment to its Guidelines for Review of Environment-Related Labeling and Advertising that would simplify the process of issuing fines to businesses engaged in greenwashing.⁶

The Parliament of Canada seemingly followed suit by tabling Bill C-59,⁷ which, if enacted, will introduce a provision into the Competition Act⁸ aimed at improving the means to fight greenwashing. Because the provision will apply to “any person,” all businesses will be subject to it, regardless of their size or legal form.

Amendment to the Competition Act

The proposed legislative amendment would allow the Commissioner of the Competition Bureau (the “Bureau”) to assess⁹ the conduct of any person promoting a product using an environmental claim or warranty.¹⁰

Insofar as a business or person is unable to demonstrate a product’s benefits for protecting the environment or mitigating the environmental and ecological effects of climate change, the Commissioner of Competition will be entitled to apply to a court for an order requiring such business or person to (i)cease promoting the product on the basis of a non-compliant environmental claim or warranty, (ii)publish a corrective notice and (iii)pay an administrative monetary penalty¹¹ of up to, for a legal person, the greater of $10 million and three times the value of the benefit derived from the deceptive conduct, or, if that amount cannot be reasonably determined, 3% of the legal person’s annual worldwide gross revenue. The penalty for each subsequent offence could be as high as $15 million.

A “product” within the meaning of the Competition Act may be an article (real or personal property of every description) or a service.¹²

Moreover, where a false or misleading claim relates to a material aspect likely to play a role in the process of purchasing a product or service covered by such claim, and where the claim was made knowingly or recklessly, criminal proceedings may be instituted.¹³

This new provision expressly requires any person or business to base their environmental claims on “an adequate and proper test”.¹⁴

A “test” within the meaning of this Act consists in an analysis, verification or assessment intended to demonstrate the result or alleged effect of a product. It does not necessarily have to be a scientific method nor do the results need to meet a test of certainty, as the courts have generally interpreted the term “proper” to mean fit, apt, suitable or as required by the circumstances.¹⁵

Regarding misleading claims, the courts¹⁶ have clarified the nature of the criteria that must be considered to determine whether a particular test is “adequate and proper.” Thus, an adequate and proper test depends on the claim made as understood by the common person. The test must also meet the following criteria:

It must be reflective of the risk or harm which the product is designed to prevent or assist in preventing.
It must be done under controlled circumstances or in conditions which exclude external variables or take account in a measurable way for such variables.
It must be conducted on more than one independent sample wherever possible (e.g., destruction testing may be an exception).
The results need not be measured against a test of certainty, but must be reasonable given the nature of the harm at issue and establish that it is the product itself which causes the desired effect in a material manner.
It must be performed regardless of the size of the seller’s organization or the anticipated volume of sales.¹⁷

What impact will this amendment really have?

Notwithstanding the proposed legislative amendment, the Competition Act already covers false or misleading representations with respect to green advertising.¹⁸ The current provisions already prohibit making representations to the public that are false or misleading in a material respect.¹⁹

In recent years, several complaints of greenwashing have been filed with the Bureau on this basis, and the Bureau has opened several investigations. The Bureau's investigations have led to significant settlements with regard to certain companies that have made representations in connection with their products²⁰/²¹/²²/²³.

The most recent complaints include one against Pathways Alliance, a group of six fossil fuel companies that ran a huge advertising campaign on the industry’s net zero targets, and another against Lululemon. Bureau investigations have led to substantial settlements, including with Keurig Canada, which agreed to pay a $3 million fine further to a Bureau investigation determining that the company had deceptively advertised its single-use K-pods as recyclable, and Volkswagen, which agreed to pay $2.1 billion for promoting certain vehicles equipped with “clean diesel engines with reduced emissions that were cleaner than an equivalent gasoline engine sold in Canada”.

In all of these cases, the heavy burden of establishing that the business’s environmental claim was false or misleading fell on the Bureau.

The proposed amendment to the Competition Act would change this by shifting the burden of proof onto businesses. The onus would therefore be on them to demonstrate that their product benefits the environment in some way or mitigates the environmental and ecological effects of climate change.

It appears that the proposed amendment will confirm, in a specific legislative provision, what was already a general standard since 1999, while easing the Bureau’s burden of proof.

In addition to the Competition Act, other laws applicable in Quebec provide a general framework for greenwashing, such as the Consumer Protection Act.²⁴ Under this Act, no merchant, manufacturer or advertiser may, by any means whatsoever, make false or misleading claims to a consumer, which implicitly includes greenwashing.²⁵

To determine whether a representation constitutes a prohibited practice, the general impression it gives, and, as the case may be, the literal meaning of the terms used therein must be taken into account.²⁶ In particular, it is prohibited to falsely ascribe particular advantages to a product or service, or to claim that a product has a particular feature or ascribe certain characteristics of performance to it.²⁷ Offences are subject to criminal²⁸ and civil²⁹ penalties.

Best practices

Regardless of whether the legislative amendment outlined here does eventually come into force, businesses must develop and convey an image of their environmental impact that is realistic and backed by credible data and facts.

Making sure that claims are legally compliant is not all that’s at stake. A business’s failure to do the above is likely to seriously harm not only its reputation, but also its relationship with its stakeholders.

Thus, before claiming to be “green,” businesses must consider the following questions.

Are the real motivations behind the business’s sustainability commitments clear, legitimate and convincing? Is sustainable development an integral part of the business strategy? Is it applied when addressing key business issues and taking new actions? Does the company have a sustainable development policy that is credible and based on relevant issues? Was it developed collaboratively with and approved by its Board of Directors? Has the company set specific, clear, measurable and achievable objectives and targets?

Conclusion

Parliament’s message could not be clearer: Shifting the burden of proof onto businesses means the end of an era when products could be marketed as green in the absence of tangible evidence.

Definition of the Autorité des marchés financiers: 8 questions and answers about carbon credits and related concepts | AMF (lautorite.qc.ca)
Definition of the Competition Bureau: Environmental claims and greenwashing (canada.ca)
Assembly Bill No. 1305: Voluntary carbon market disclosures, California, 2023. Read it here: Bill Text – AB-1305 Voluntary carbon market disclosures
Décret n^o2022-539 du 13 avril 2022 relatif à la compensation carbone et aux allégations de neutralité carbone dans la publicité, Journal officiel de la République française, 2022. Read it here: Légifrance – Publications officielles – Journal officiel – JORF n° 0088 du 14/04/2022 (legifrance.gouv.fr)
Proposal for a Directive of the European Parliament and of the Council amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and better information, Council of the European Union, Brussels, 2022. Read it here: pdf (europa.eu)
KFTC Proposes Amendment to Review Guidelines Regarding Greenwashing – Kim & Chang (kimchang.com).
An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023, 44^th Parliament, 1^st Session. Read it here: Government Bill (House of Commons) C-59 (44-1) – First Reading – Fall Economic Statement Implementation Act, 2023 – Parliament of Canada. The Bill is currently at second reading in the House of Commons.
R.S.C. 1985, c. C-34.
This power to make inquiry would be available, as the Act already provides, upon receipt of a complaint signed by six persons who are not less than 18 years of age, or in any situation where the Commissioner has reason to believe that a person has contravened section 74.01 of the Act (see R.S.C. 1985, c. C-34, ss. 9 and 10).
An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023, 44^th Parliament, 1^st Session, section 236. Read it here: Government Bill (House of Commons) C-59 (44-1) – First Reading – Fall Economic Statement Implementation Act, 2023 – Parliament of Canada; section 236 of this Act adds a paragraph (b.1) to subsection 74.01(1) of the Competition Act
Competition Act, R.S.C. 1985, c. C-34, para. 74.1. and Penalties and remedies for non-compliance (canada.ca).
Competition Act, R.S.C. 1985, c. C-34, para. 2(1).
Competition Act, R.S.C. 1985, c. C-34, para. 52(1).
An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023, 44^th Parliament, 1^st Session, para. 236(1).
The Commissioner of Competition v. Imperial Brush Co. Ltd. and Kel Kem Ltd. (c.o.b. as Imperial Manufacturing Group), 2008 CACT 2, para. 122 et seq.
The Competition Tribunal, the Federal Court and the superior court of a province, Competition Act, R.S.C. 1985, c. C-34, s. 74.09: “courts” means the Competition Tribunal, the Federal Court and the superior court of a province.
The Commissioner of Competition v. Imperial Brush Co. Ltd. and Kel Kem Ltd. (c.o.b. as Imperial Manufacturing Group), 2008 CACT 2.
Louis-Philippe Lampron, “L’encadrement juridique de la publicité écologique fausse ou trompeuse au Canada : une nécessité pour la réalisation du potentiel de la consommation écologique?” Revue de Droit de l’Université de Sherbrooke, Vol. 35, No. 2, 2005, p. 474. Read it here: A:\lampron.wpd (usherbrooke.ca).
R.S.C. 1985, c. C-34, s. 74.01(a).
Amanda Stephenson, Des groupes écologistes misent sur la Loi sur la concurrence (Environmental groups banking on the Competition Act), October 1, 2023, La Presse. Read it here: Des groupes écologistes misent sur la Loi sur la concurrence | La Presse.
Brenna Owen, Un groupe accuse Lululemon d’« écoblanchiment » et demande une enquête (A group accuses Lululemon of “greenwashing” and calls for an investigation) February 13, 2024, La Presse. Read it here: Un groupe accuse Lululemon d’« écoblanchiment » et demande une enquête | La Presse
Martin Vallières, “Gare aux tromperies écologiques” (Beware of greenwashing), January 26, 2022, La Presse. Read it here: Écoblanchiment | Gare aux tromperies écologiques | La Presse; Keurig Canada to pay $3 million penalty to settle Competition Bureau’s concerns over coffee pod recycling claims – Canada.ca.
The Commissioner of Competition v. Volkswagen Group Canada Inc. and Audi Canada Inc., 2018 Competition Tribunal 13.
Consumer Protection Act, CQLR c. P-40.1, ss. 219, 220 and 221
Definition of the Competition Bureau: Environmental claims and greenwashing (canada.ca)
Richard v. Time Inc., 2012 SCC 8, paras. 46 to 57.
Consumer Protection Act, CQLR c. P-40.1, ss. 220 and 221.
Consumer Protection Act, CQLR c P-40.1, ss. 277 to 279: Fines range from $600 to $15,000 in the case of a natural person and $2,000 to $100,000 in the case of a legal person. Offenders convicted a second time are liable to fines twice as high as those prescribed.
Id., ss. 271 to 276: Consumers may request that the contract be annulled, that the merchant’s obligation be performed or that their obligation be reduced, among other things.

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Authors

Chloé Fauchon
Partner, Lawyer
William Bolduc
Lawyer

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April 2, 2024

Environmental obligations: directors and officers, you may have more responsibilities than you think

In general, the directors and officers of a legal person have obligations and responsibilities relating to the legal person’s activities. Each director must act with prudence, diligence, honesty, loyalty and in the legal person’s interest.1 Each officer is responsible for representing the legal person and directing its activities.2 That said, directors and officers must keep in mind that they have greater duties and responsibilities and a heavier burden to meet when it comes to ensuring compliance with certain environmental laws. Since it came into force on May 12, 2022, the Act respecting certain measures enabling the enforcement of environmental and dam safety legislation (the “Act”) has ensured the enforcement of various environmental laws.3 The Act essentially provides for two types of consequences arising from the actions of directors, officers and, in some instances, other representatives of a legal person. The first involves a particular burden as regards compliance with environmental laws, and the second, consequences relating to the administration of the environmental authorization scheme. The duty of directors and officers to ensure compliance with environmental laws The Act’s criminal provisions provide for stiffer penalties for directors who commit an offence under an environmental law. Section 47 of the Act provides that where an offence is committed by a director or officer of a legal person, the minimum and maximum fines that would apply in the case of a natural person for such offence are doubled. Also, where a legal person commits an offence under an environmental law, its director or officer is presumed to have committed the offence, unless it is established that they exercised due diligence and took all necessary precautions to prevent the offence.4 The Act additionally provides that anyone who, by an act or omission, helps a person to commit an offence or induces a person, by encouragement, advice, consent, authorization or order to commit such an offence commits that offence and is liable to the same penalty as that prescribed for the offence they helped or induced the person to commit.5 Naturally, this rule applies to the directors and officers of a legal person, but is not limited to them. For example, it would also apply to an engineer or legal advisor who provides a legal person with advice causing it to commit an offence under an environmental law. Lastly, where a legal person has defaulted on payment of an amount owed,6 the directors and officers are solidarily liable, with the legal person, for payment of such amount. However, they may be exempted from this obligation if they are able to establish that they exercised due care and diligence to prevent the failure which led to the claim.7 This rule could apply, for instance, where a legal person is insolvent, which underscores the need to anticipate and effectively manage the environmental issues that a legal person is likely to face. Conduct of directors, officers and shareholders and the environmental authorization scheme The Environment Quality Act (EQA) establishes a ministerial authorization scheme for certain activities considered likely to have an impact on the quality of the environment.8 This authorization scheme is discretionary. Any activity covered by such scheme cannot be legally carried out unless the required authorization has first been issued. Holding and keeping such authorization is therefore fundamental for the company in question to continue to pursue its activities. Under the Act, the Minister of the Environment9 may refuse to issue, amend or renew a ministerial authorization, or decide to amend, revoke or cancel such an authorization, or oppose its transfer in certain situations relating to the conduct of the directors, officers and shareholders10 of the legal person holding the authorization.11 Situations in which the Minister may intervene in this way are, for example, those where one of a legal person’s directors, officers or shareholders has: filed a false declaration or document, or false information, or has distorted or omitted to report a material fact to have the authorization issued, maintained, amended, renewed or transferred failed to comply with an injunction made under any act that is administered by the Minister of the Environment defaulted on payment of an amount owed under any act administered by the Minister of the Environment (including monetary administrative penalties or any other fees that must be paid under such acts) been found guilty of an offence under an act administered by the Minister of the Environment or any regulations made under those acts been found guilty of an offence under a fiscal law or an criminal offence connected with activities covered by the authorization12 Thus, the conduct of directors, officers or shareholders can have repercussions on a legal person’s rights and obligations in carrying out activities authorized by the Minister. In addition, their conduct could hinder or even prevent the transfer of an authorization as part of an asset sale. Directors and officers have a vested interest in ensuring that the legal person they represent complies with environmental laws. Evidently, compliance is not only in the interest of the legal person itself, but also that of its directors and officers, whose personal liability and assets could be at stake should the legal person fail to comply. Articles 321 and 322 of the Civil Code of Québec (C.C.Q.) Article 312 of the C.C.Q. These environmental laws are the Environment Quality Act, the Act to increase the number of zero-emission motor vehicles in Québec in order to reduce greenhouse gas and other pollutant emissions, the Natural Heritage Conservation Act, the Act respecting threatened or vulnerable species, the Pesticides Act and the Dam Safety Act (section 1 of the Act). Section 51 of the Act. Section 49 of the Act. The amount owing may be a monetary administrative penalty, a fine or financial compensation required under a notice of execution, among other things. Section 66 of the Act; In addition, under section 67 of the Act, the reimbursement of an amount owing is secured by a legal hypothec on the movable and immovable property of the debtor, in this case the director and officer of the legal person. Section 22 of the EQA. The EQA also provides that certain activities listed in the Regulation respecting the regulatory scheme applying to activities on the basis of their environmental impact may benefit from the more flexible declaration of compliance framework, or even an exemption. There is no need to describe these in detail for the purposes of this article. In accordance with section 2 of the Terms and conditions for the signing of certain documents of the Ministère du Développement durable, de l’Environnement et des Parcs (M-30.001, r. 1), assistant deputy ministers, directors general, the secretary general, directors, regional directors and assistant directors are authorized to sign any document relating to such decisions. For the purposes of these provisions of the Act, a shareholder means a natural person holding, directly or indirectly, shares that carry 20% or more of the voting rights in a legal person that is not a reporting issuer under the Securities Act (section 2 of the Act). Except in a situation where urgent action is required, the Minister must give prior notice of such a decision to the person concerned, so that they may submit their observations (section 39 of the Act). The Minister’s decision is then notified to the person concerned (section 40 of the Act), who may contest it before the Administrative Tribunal of Québec (sections 40 and 41 of the Act). See sections 32 to 36 of the Act.

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July 14, 2022

Single-Use Plastics Prohibition Regulations: Impact on Businesses

On June 20, 2022, the federal government registered regulations that, as the name implies, prohibit (or restrict, in some cases) the manufacture, import and sale of certain single-use plastics that pose a threat to the environment. The Regulations will come into force on December 20, 2022, with the exception of certain provisions taking effect in the following months.1 Manufacturing, importing and selling certain single-use plastic products made entirely or partially of plastic, such as foodservice ware, checkout bags and straws, will be soon be prohibited. This regulation is expected to affect more than 250,000 Canadian businesses that sell or provide single-use plastic products, primarily in the retail, food service, hospitality and healthcare industries. The following is a comprehensive list of items that will be prohibited: Single-use plastic ring carriers designed to hold and carry beverage containers together2; Single-use plastic stir sticks designed to stir or mix beverages or to prevent liquid from spilling from the lid of its container3; Single-use plastic foodservice ware (a) designed in the form of a clamshell container, lidded container, box, cup, plate or bowl, (b) designed to serve or transport ready-to-eat food or beverages without further preparation, and (c) made from certain materials4; Single-use plastic checkout bags designed to carry purchased goods from a business and (a) whose plastic is not a fabric, or (b) whose plastic is a fabric that will break or tear, as the case may be, (i) if it is used to carry 10 kg over a distance of 53 m 100 times; (ii) if it is washed in accordance with the washing procedures specified for a single domestic wash in the International Organization for Standardization standard ISO 6330, as amended from time to time5; Single-use plastic cutlery that is formed in the shape of a fork, knife, spoon, spork or chopstick that either (a) contains polystyrene or polyethylene, or (b) changes its physical properties after being run through an electrically operated household dishwasher 100 times6; Single-use plastic straws that either (a) contain polystyrene or polyethylene, or (b) change their physical properties after being run through an electrically operated household dishwasher 100 times7. The main exceptions Single-use flexible plastic straws Single-use flexible plastic straws, i.e. those with a corrugated section that allows the straw to bend and maintain its position at various angles,8 may be manufactured and imported9. These flexible straws may also be sold in any of the following circumstances: The sale does not take place in a commercial, industrial, or institutional setting10. This exception means that individuals can sell these flexible straws. The sale is between businesses in packages of at least 20 straws.11 The sale is made by a retail store of a package of 20 or more straws to a customer who requests it without the package being displayed in a manner that permits the customer to view the package without the help of a store employee12; The sale of straws is between a retail store and a customer, if the straw is packaged together with a beverage container and the packaging was done at a location other than the retail store13; The sale is between a care facility, such as a hospital or long-term care facility, and its patients or residents14. The export of single-use plastic items - All the manufactured single-use plastic items listed above may be manufactured, imported or sold for export15. That said, any person who manufactures or imports such items for export will be required to keep a record of certain information and documents as appropriate for each type of plastic manufactured item16. Records of the information and documents will have to be kept for at least five years in Canada17. Conclusion: an opportunity to rethink common practices In the short term, businesses will need to start thinking about how they will replace the plastic manufactured items they use. To help businesses select alternatives to single-use plastic items, the federal government has released its Guidance for selecting alternatives to the single-use plastics in the proposed Single-Use Plastics Prohibition Regulations.18 According to this document, the aim should be to reduce plastics. Businesses may begin by considering whether a single-use plastic should be replaced or no longer provided. Only products that perform essential functions should be replaced with non-plastic equivalents. Stir sticks and straws can be eliminated most of the time. Another way to reduce waste is to opt for reusable products and packaging. Businesses are invited to rethink their products and services to provide reusable options. Reusable container programs (i.e. offering customers the option of using their own reusable containers) are a reuse option that businesses may want to consider, in particular to reduce the amount of plastic food containers. Only where reusable products are not feasible should businesses substitute a single-use plastic product with a recyclable single-use alternative. Businesses in this situation are encouraged to contact local recycling facilities to ensure that they can successfully recycle products at their end of life. Ultimately, charging consumers for certain single-use substitutes (e.g. single-use wooden or moulded fibre cutlery) may also discourage their use. Ibid, s. 1 Ibid, s. 3 Ibid, s. 6 Polystyrene foam, polyvinyl chloride, plastic containing black pigment produced through the partial or incomplete combustion of hydrocarbons or oxo-degradable plastic; Ibid. This standard is entitled Textiles – Domestic washing and drying procedures for textile testing; Ibid. Ibid. Ibid, ss. 4 and 5. Ibid, s. 1. Ibid, s. 4. Ibid, para. 5(2). Ibid, para. 5(3). Ibid, para. 5(4); According to Guidance for selecting alternatives to the single-use plastics in the proposed Single-Use Plastics Prohibition Regulations, the goal is to ensure that people with disabilities who need flexible single-use plastic straws continue to have access to them at home and can carry them to restaurants and other premises. Ibid, para. 5(5). Ibid, para. 5(6). Ibid, para. 2(2). Ibid., s. 8 Ibid, para. 9(1). https://www.canada.ca/en/environment-climate-change/services/managing-reducing-waste/consultations/proposed-single-use-plastics-prohibition-regulations-consultation-document.html

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March 1, 2019

Once Upon a Time in the West: Redwater, its Trustee, and the Environmental Arm of the Law

In a decision handed down on January 31, 2019, the Supreme Court ordered that a bankrupt oil and gas company fulfil its obligation to reclaim abandoned oil wells before paying any creditors. This decision has since sparked conflicting reactions across the country: first, because it gives clear precedence to environmental protection in the event of bankruptcy, and second, because of the influence it will likely have over business decisions in industries where environmental risks are involved. Moreover, the concrete impact this decision will have in Quebec, where environmental laws have recently undergone major reforms, remains to be seen. Background Redwater Energy Corp. is a publicly traded Alberta oil and gas company that obtained financing for part of its operations from Alberta Treasury Branches (“ATB”) in 2013. The latter held a security interest over Redwater’s assets. In 2014, Redwater experienced financial difficulties which resulted in its inability to fulfil its obligations to ATB, its primary secured creditor. In 2015, Redwater was placed under receivership. At that time, Redwater’s assets consisted of 127 oil and gas properties—wells, pipelines and facilities—and their corresponding licences obtained in 2009. Said licences were granted by the Alberta Energy Regulator (“AER”), subject to an obligation to reclaim wells and facilities as prescribed to make them environmentally safe. However, at the time Grant Thornton was appointed as its receiver, 72 of Redwater’s licensed wells and facilities were depleted and burdened with environmental liabilities in terms of abandonment and land reclamation, such that Redwater’s liabilities exceeded the value of the wells and facilities that were still producing. Upon being advised that Redwater was placed under receivership, the AER notified Grant Thornton that despite the receivership, it was under the legal obligation to fulfil abandonment and reclamation obligations for all licensed assets prior to distributing funds or finalizing any proposal to creditors. Grant Thornton replied that it was not taking possession and control of Redwater’s valueless facilities and that it therefore had no obligation to fulfil the environmental obligations associated with these renounced assets (the “Environmental Obligations”). In the summer of 2015, in response to Grant Thornton's reply, the AER issued abandonment orders under two Alberta laws directing Redwater to suspend the operation of the renounced assets, abandon them in accordance with the AER's rules and regulations, and obtain the reclamation certificates required by law. In the fall of 2015, a bankruptcy order was issued for Redwater and Grant Thornton was appointed as trustee. The AER filed an application to order Grant Thornton to comply with its Environmental Obligations before making any distribution to Redwater’s creditors, but the application judge and the majority of the Alberta Court of Appeal agreed with Grant Thornton and refused to issue the orders sought. In their view, agreeing with the AER would be tantamount to ignoring the orderly and equitable distribution scheme set out in the Bankruptcy and Insolvency Act (“BIA”). The AER appealed the judgment to the Supreme Court. On January 31, 2019, in a 5-2 majority decision, the Supreme Court allowed the AER’s appeal. 1- The trustee’s personal liability The first question the Court reviewed was whether section 14.06(4) of the BIA allows a trustee to escape the obligations imposed by Alberta law with respect to the reclamation of oil and gas facilities. Essentially, this question raises the fundamental issue of whether the BIA is in operational conflict with provincial laws. Section 14.06(4) of the BIA provides that the trustee is not personally liable for any failure to comply with any order to remedy any environmental condition or damage affecting a bankrupt property if the trustee abandons or renounces any right to the property in question. The majority of the Court interpreted this provision in a restrictive manner and concluded that, even if the trustee is not held personally liable, the bankrupt estate's assets remain subject to the order to remedy any environmental damage. Thus, the value of the bankrupt's assets must be used to fulfil its Environmental Obligations. 2- The notion of “provable claim” Grant Thornton further argued that, even if the bankrupt’s assets were to be used to fulfil Environmental Obligations, these should be paid as “provable claims” of an ordinary creditor, in other words, neither a secured nor a preferred creditor. Thus, the question of whether the AER could demand that Redwater’s Environmental Obligations be fulfilled before the value of the assets could be distributed to its creditors involves the concept of “claims provable in the bankruptcy” as defined by the BIA. One of the objectives of the BIA is to ensure the equitable distribution of the bankrupt’s property among creditors who have a “provable claim.” Said distribution is done according to a very precise order, established by law. However, if a claim is not “provable” within the meaning of the BIA, it nonetheless continues to be binding on the bankrupt and must be paid regardless of the distribution scheme provided for under the BIA. According to the Supreme Court in the 2012 AbitibiBowater1decision, a “provable claim” exists if three requirements are met: There must be a debt, liability or an obligation to a “creditor”; The debt, liability or obligation must be incurred before the debtor becomes bankrupt; and It must be possible to attach a monetary value to the debt, liability or obligation. If any one of these requirements is not met, there is no “provable claim.” Applying this analytical framework to the situation at hand, the majority of the Court determined that the AER is not a “creditor” within the meaning of the first requirement. According to the Court, the people of Alberta would ultimately benefit if Redwater and other companies like it met their Environmental Obligations: the province itself would not be gaining a financial advantage. Thus, the AER, when seeking to enforce Redwater’s public duties, is not a creditor within the meaning of the law. This was sufficient to conclude that its claim was not a “provable claim” subject to the distribution scheme provided for under the BIA2. The result, according to the Supreme Court, is that compliance with Environmental Obligations prevails over the payment of any provable claims of secured, preferred and unsecured creditors in the form of a first charge3. This conclusion does not conflict with the priority scheme under the BIA, nor does it contradict the goal of maximizing the realizable value of the assets, because all of Redwater’s valuable assets were subject to Environmental Obligations in any case. Such a decision raises several questions. First, as Justice Côté points out in her dissenting reasons, it may sometimes be difficult to know when the regulator is not acting in the public interest, suggesting that such a regulator can never be a creditor within the meaning of the law. Second, the adopted interpretation is likely to have consequences, in particular on the financing industry for companies exploiting natural resources. Faced with the existence of first charges that could remain unknown for a long time, lenders that finance the activities of such companies may have to reconsider the conditions under which they agree to finance them because of the increased risk of having the value of their investment or guarantees reduced. 3- What about the effects of this judgment in Quebec? It is particularly difficult to say with certainty what the effects of this decision will be in Quebec given the current legislative context in the areas of activity in question. Quebec legislation has undergone major reforms recently (in mid-2017 for the environment and at the end of 2018 for petroleum ressources) both in terms of environmental protection and the management of natural resources. The structure of the law, the conditions for obtaining operating licences and drilling authorizations and the powers of public authorities (in particular those of the ministers) have been changed to such an extent that we believe caution should be exercised before drawing hasty conclusions. In the case analyzed by the Supreme Court, the legislation in question, which made site remediation an obligation under the licenses issued, defined remediation to include decontamination. While this conclusion can apparently be drawn from the legislative structure applicable to mining operations, it is less obvious to do so with respect to petroleum resources development in Quebec. Moreover, although Quebec has legislative provisions to ensure that soil decontamination work is carried out in certain situations under division IV of the Environment Quality Act, the obligations to produce a characterization study, prepare a rehabilitation plan and carry out decontamination work do not apply in all cases. Although solely the production of a characterization study and a rehabilitation plan are required in some cases (cessation of activities), decontamination is only mandatory for the resumption of other activities, unless ordered by the Minister. Therefore, in cases where land decontamination is not a mandatory condition under the law, we must consider whether or not decontamination work otherwise performed may or may not qualify as “provable claims” within the meaning of the Bankruptcy and Insolvency Act. Thus, we should be careful before affirming that the Supreme Court’s decision in this case will automatically apply to Quebec in all situations. Analyzing situations on a case-by-case basis (as the Supreme Court said, incidentally) is the way forward, and understanding the Supreme Court's decision in the Redwater case properly will certainly be key. 4- Conclusion The Redwater decision raises diametrically opposed reactions depending on the audience. Some welcome the Supreme Court's effort to support provincial authorities responsible for overseeing environmental matters by adopting an interpretation of federal and provincial legislation that is broad, flexible and imbued with cooperative federalism. The Court's message that bankruptcy is not a licence to ignore environmental rules and that trustees are bound by valid provincial laws is also appreciated. Others, however, object to the business consequences that could result from this decision for companies operating in areas of activity that involve environmental risks, because access to financing may be more difficult. Where the full value of the assets is likely to be used to ensure compliance with environmental obligations, insolvency professionals who rely on the value of the assets to cover their own professional feess may be discouraged from accepting mandates when environmental issues are involved. Some are also concerned that companies in difficulty will abandon their assets to governments rather than attempting to restructure, thereby increasing the social burden of these problematic assets - a result that the majority decision seemed to want to avoid. In Quebec, as we pointed out above, the powers exercised and orders issued will require careful review to determine their immediate or potential regulatory or monetary nature. In the first case, Redwater suggests that a trustee would be forced to comply in accordance with the value of the assets, while, in the second case, the provincial authority's claim would be considered subordinate to the rights of secured and preferred creditors in the distribution scheme provided for in the BIA. Newfoundland and Labrador v. AbitibiBowater Inc. [2012] 3 SCR 443, 2012 SCC 67 (CanLII) However, the Court analyzed the third requirement set out in Abitibi and concluded that it is not possible to attach a monetary value to the debt in question, as it was not sufficiently certain that the organization would perform the work or claim its reimbursement. The dissenting judges concluded the contrary on this point. Which the Court equates with the one under section 14.06(7) of the BIA that the organization could not avail itself of in this case.

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August 15, 2018

New environmental authorization scheme: how does this affect mining companies?

A new environmental authorization scheme, which is intended to be a simplified version, was implemented under the Environmental Quality Act (“EQA”) and has been in effect since March 23, 2018. How does this new scheme affect mining companies? Is the authorization scheme truly simplified? What about the right to continue unauthorized operations that could benefit certain mining companies (also called an acquired right)? Under the new EQA authorization scheme, mining activities will be subject to different schemes depending on the risk they present. While the majority of activities are subject to ministerial authorization1, others may: benefit from exemptions be subject to the new scheme of declaring compliance be subject to the environmental impact assessment and review procedure if they present an elevated risk. The implementation of the EQA’s new environmental authorization scheme involves a review of the regulations adopted pursuant to this act. This bulletin refers to the Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters (“Draft Regulation”). This Draft Regulation has been published, but it is not currently in its final form and may be modified before it comes into force.2 Consequently, a regulatory watch is required.3 What authorizations are mining companies subject to? Depending on the nature of the activity, the applicable scheme ranges from exemption to environmental impact assessment and review procedure. 4 The general environmental authorization scheme Subject mining activities Article 22 of the EQA lists several activities whose implementation requires prior authorization from the Minister. Mining activities are not part of this list. However, the 10th item of the list is “any other activity determined by government regulation.” At present, the Draft Regulation states that “any mining activity shall be subject to authorization.”5 This leaves little room for interpretation. Thus, with the exception of the specific cases currently provided for in the Draft Regulation, any mining activity requires an authorization from the Minister. Content of the authorization request It should be noted that in addition to the documents listed in the EQA, an authorization request for mining activity may have to be accompanied by the additional information and documents listed in the Draft Regulation.6 In addition, from now on, any documents submitted in support of an authorization request are considered as being public. It is up to the person submitting the request to specify whether certain documents include a confidential industrial or commercial secret. The decision as to the public nature rests with the Minister who notifies the applicant for authorization. This decision is legally binding upon the expiration of a period of 15 days following the transmission of the notice. Once this period has elapsed, the documents are made public, hence the importance of calling on the courts quickly if it is necessary to contest the Minister’s decision.7 Right to pursue an activity without environmental authorization In its former version, the general environmental authorization scheme in Article 22 of the EQA prohibited “undertaking the operation of any industry, the performance of an activity or use of an industrial process [...]” without having obtained a prior certificate of authorization. Because of the word “undertaking,” the case law recognized the possibility of pursuing an activity without authorization when it had been undertaken before the entry into force of the EQA on December 21, 1972. In its new version, Article 22 of the EQA no longer speaks of the need to obtain an authorization to undertake but rather to carry out an activity. This demonstrates the legislator’s willingness to no longer allow an activity to continue without environmental authorization. However, certain transitional provisions specifically provide that an activity may be pursued without authorization, providing that it must then rely on the wording of the government regulation on the issue to make sure8. At present, the text of the Draft Regulation does not support the conclusion that mining companies could benefit from a right to pursue an activity without authorization. Exemption scheme Certain mining activities considered to be of little risk to the environment are completely excluded from the obligation to obtain prior environmental authorization. The Draft Regulation currently provides that the following are exempt: milestone marking, geophysical, geological, or geochemical surveys, drilling work (unless performed in wetlands and water environments9) stripping and excavation work under certain conditions (unless they are carried out in wetlands and water environments or within 30 meters of such environments). The statement of compliance scheme The statement of compliance scheme allows for proceeding by transmitting to the Minister all of the documents required by the EQA and the applicable regulatory provisions by stating compliance to them. In this case, if thirty days after the transmission of the documents, no follow-up has been made with the Declarant, he or she may begin the activity concerned. The Draft Regulation provides that drilling work carried out in the wetlands and water environments as a part of a project searching for mineral substances would be, under certain conditions, eligible for the statement of compliance.10 It should be noted that special provisions may be applied depending on the environment in which the work is carried out. Certain conditions are specific to work carried out in a pond, marsh, swamp or peatland10, and others are specific to work carried out on a lake or shore or in a lake or river12. The compliance statement scheme requires the production of extensive and professionally signed studies. If the processing time is shortened, the declarant’s task remains complicated. The environmental impact assessment and review procedure scheme Certain mining activities are subject to the environmental impact assessment and review procedure pursuant to the Regulation on the assessment and review of the environmental impact of certain projects13currently in force. The purpose of this bulletin is not to discuss the procedure followed under this more complicated scheme that involves the intervention of the Bureau d’audiences publiques sur l’environnement [Bureau of Public Hearings on the Environment] (“BAPE”).14 The following mining activities are subject to this review procedure: The establishment of a uranium or rare earth mine; The establishment of a mine with a maximum daily metal-bearing ore mining capacity of 2000 metric tons or more; The establishment of a mine with a maximum daily ore (other than metal-bearing) mining capacity of 500 metric tons or more; Any increase in the daily maximum mining capacity of a mine thus making it reach or exceed the thresholds identified above;15 The establishment of a mine within an urban area identified in the construction and development plan of a RCM or in an Indian reservation or within 1000 meters of such an area or reservation; Any expansion of 50% or more of the operating area of a mine in certain specific cases identified in the regulation; After the BAPE’s work, the Minister makes a recommendation to the government as to the authorization requested. Ultimately, it is the government that decides whether or not to issue the authorization. 16 Changes to the environmental authorization scheme are major. Mining companies have every interest in taking a closer look at it and monitoring the entry into force of the regulations that allow the implementation of this scheme in order to continue their operations in Québec legally. Article 22 EQA. The Minister of Sustainable Development, the Environment, and the Fight against Climate Change, Ms. Isabelle Melançon, mandated Ms. Suzanne Giguère and Mr. Jean Pronovost to give their opinion on the regulatory approach adopted by the Ministry. Here is the link to the SDEFCC press release: http://www.mddelcc.gouv.qc.ca/Infuseur/communique.asp?no=3996 On July 19, a press release was issued by the SDEFCC announcing the intention of the Minister, Isabelle Melançon, to postpone the coming into force of the draft regulations considering the findings of Suzanne Giguère and Jean Pronovost. Here is a link to the SDEFCC press release: http://www.mddelcc.gouv.qc.ca/infuseur/communique.asp?no=4049 It should be noted that at the time of writing, most of the government regulations implementing the new environmental authorization scheme have been the subject of proposals published in the Official Gazette of Québec. These regulations, however, are not yet known in their final versions. The Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Appendix 1 (other activities subject to prior authorization), Section 2, Article 4. Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Article 38. The Regulation on certain transitional measures for the application of 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 currently provides, in a transitional manner, the documents that must be attached to a request for authorization. It should be noted that activities already in progress on March 23, 2018 and for which no environmental authorization was required pursuant to the EQA and that would now be subject to environmental authorization according to Article 22 of the EQA, could be continued without further formalities subject to any special provisions that may be provided for by a government regulation (Art. 290 of 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 (Bill 102, 2017, Chapter 4). It should be noted that the EQA includes a broad definition of wetlands and water environments. These environments include lakes, rivers, shorelines and flood plains of lakes and rivers, ponds, marshes, swamps and peatlands (Article 46.0.2 EQA). The Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Appendix 2 (activities subject to a statement of compliance), Section 8, Article 19 et seq. Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Appendix 2, Section 8, Article 21 Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Appendix 2, Section 8, Article 22 Decree 287-2018, March 21, 2018 Articles 31.1 et seq. EQA It should be noted that this does not apply to a mine existing as of March 23, 2018. Other standards apply to these mines for which any plan to increase the daily mining capacity by 50% or more is subject to the impact review procedure if this increase exceeds the applicable mining thresholds depending on the nature of the mined material. Article 31.5 EQA

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