The Power of Perspectives

The Canadian Bar Association

Doug Beazley

Environment

Climate change litigation: Public nuisance strategy latest to fail

By Doug Beazley July 13, 2018 13 July 2018

Climate change litigation: Public nuisance strategy latest to fail

 

You’ve got to give him credit — he did the homework.

Last March, U.S. District Court Judge William Alsup was hearing a lawsuit filed by the cities of San Francisco and Oakland against five major oil firms on a claim of “public nuisance”, seeking compensation for the damage done by human-driven climate change. Alsup ordered the defendants and plaintiffs to take part in a five-hour tutorial explaining the ins and outs of climate science. By the end of it, he was arguably more qualified to hold forth on the topic than any member of Congress.

From the plaintiffs’ point of view, it didn’t help. Last month, Alsup threw out the lawsuit, saying the question of whether private firms can be held accountable for the climate effects of consuming a legal product is one for politicians to answer, not judges.

Previous attempts to pursue climate change nuisance claims under American federal law had foundered at the U.S. Supreme Court, which ruled in 2011 that the federal common law of ‘nuisance’ had been displaced by the passage of the Clean Air Act in 1963. Activists in the U.S. and Canada hoping to use the courts to do what most governments seem reluctant to do — hold energy companies directly accountable for the consequences of carbon pollution — have to see Alsup’s decision as a setback (even if it’s a symbolic one in Canada’s case).

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Employment

Legal marijuana and the challenges of workplace drug testing

By Doug Beazley June 26, 2018 26 June 2018

Legal marijuana and the challenges of workplace drug testing

 

As the federal Liberals will no doubt remind you over the coming year, they made history this spring. The Senate (after a lot of grumbling, and the rejection by the government of a stack of amendments) passed C-45, the bill creating a legal market for recreational marijuana.

Prime Minister Justin Trudeau called it a promise kept. His opponents called it a catastrophe in the making. The Liberals were sending out fundraising emails on the topic within a day of the bill’s passage.

Mission accomplished? Not by a long shot. Provinces still have to define rules for transport and sale. Municipalities need to settle questions about zoning. There could be a court battle between Ottawa and provinces that wish to restrict or ban home cultivation.

But the biggest gap in the legal framework surrounding recreational cannabis has to do with the workplace. 

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Securities law

It’s becoming easier to be green – with better returns

By Doug Beazley June 7, 2018 7 June 2018

It’s becoming easier to be green – with better returns

 

It’s a very good time to be in the planet-saving business. Decades back, when the nascent “socially responsible investment” sector was just getting started, SRI was a boutique product.

It had scored some conspicuous victories — having played a key role in pressuring South Africa’s business community to publicly repudiate apartheid, for example – but it was still a niche market, a way for conscientious investors to sacrifice a few points of profit to their ethics. Nobody really expected SRI products to keep pace with the market. But then they did — and then some.

Genus’s Fossil-Free CanGlobe Equity Fund, which excludes oil companies and high-carbon emitters, has increased in value 102 per cent since it started in 2013. A comparable benchmark fund composed of large-cap Canadian and international stocks grew by roughly 81 per cent over the same period. The Jantzi Social Index, which tracks large-cap Canadian firms that meet a high standard of social and environmental responsibility, has seen those firms rise in value more than 41 per cent since 2006; the S&P/TSX 60 trailed at least two points behind.

 

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Environment

The Trans Mountain purchase: Some unresolved legal issues

By Doug Beazley June 6, 2018 6 June 2018

The Trans Mountain purchase: Some unresolved legal issues

 

Given the kind of year Rachel Notley has had, you could forgive the Alberta premier for taking a small victory lap last month after the federal government went all the way for Trans Mountain.

Reacting to the Trudeau government’s announcement that it would be purchasing the existing Trans Mountain pipeline for $4.5 billion — to guarantee construction of a politically-fraught expansion to transport Alberta’s bitumen to the Pacific coast — Notley argued the purchase would put an end to B.C. Premier John Horgan’s legal attempts to frustrate the work.

“As a result of the pipeline having been purchased by the federal government, they have a form of Crown immunity which actually limits the degree to which provincial laws would apply to the project because it’s a federal project now,” Notley told reporters.

“I suspect premier Horgan will be going off to get legal advice … some folks would suggest their reference case will have less relevance than before today’s announcement.”

Is she right? Horgan hasn’t taken off the table his government’s reference case before the provincial Court of Appeal — to rule on the province’s power to restrict the flow of diluted bitumen through British Columbia. Does he know something Notley doesn’t?

 

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Decriminalization

Could Portugal’s drug policy work in Canada?

By Doug Beazley May 22, 2018 22 May 2018

Could Portugal’s drug policy work in Canada?

 

Party policy conventions are to politics what fantasy football is to the real thing. Delegates gather to discuss blue-sky proposals to reshape the nation and the world — banning nuclear weapons, for example, or putting new limits on abortion access. Then the professionals weigh in to explain why those ideas won’t fly.

Sometimes the reasons are legal; sometimes they’re political. Sometimes they’re both — which is what happened when Liberal Party of Canada delegates gathered in Halifax last month to talk about following the Portuguese model on drug policy: decriminalizing consumption and possession of small amounts and diverting users into the health care system. The resolution hadn’t even been adopted before key members of Prime Minister Justin Trudeau’s cabinet were taking turns tossing buckets of cold water on the idea.

“I recognize there’s a lot of comparison with Portugal and Canada but I think we have to develop the Canadian model here,” said Health Minister Ginette Petitpas Taylor.

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