Canadian Lawyer InHouse

MARCH/APRIL 2019 20 INHOUSE A settlement with the First Nations bands impacted by the pollution was not reached until 1985. As part of a broad agreement with all parties, including First Nations, the federal government and the two companies, the province agreed to an indemnity provi- sion for both Reed and Great Lakes. The main clause of this provision stated that Ontario would indemnify the com- panies from "any obligation" as a result of "any claim, action or proceeding, whether statutory or otherwise" that existed in 1979 when the transaction for the pulp and paper operations went through. The scope of the indemnity extended to claims by individu- als, companies, the federal government and "any province" as a result of environmental damage caused previously. Ownership of the pulp and paper opera- tions and control over the waste disposal site had transferred hands a number of times when, in 2011, the Ontario govern- ment issued environmental orders to deal with soil erosion and ongoing water testing. Weyerhaeuser and predecessor compa- nies to Resolute FP Canada Inc. were named in the order and required to compensate the province more than $270,000 to cover the cost of the remediation. The companies were also informed that they were not re- lieved from being responsible for any future orders related to site, which, in 2011, had an estimated lifespan of another 35 years. Weyerhaeuser was named in the order as a result of it owning the property for two years, from 1998 to 2000. Through a number of corporate consolidations over the years, Resolute could be linked back to Great Lakes, one of the two companies that signed the agreement with Ontario in 1985. The companies named in the order were not responsible for the mercury poisoning, but the powers of the province are quite broad under the Environmental Protec- tion Act, explains Mullins. "To address contamination, the ministry can reach back in time. You just have to have some associa- tion with the land and you continue to be exposed even after you sell it," she says. Weyerhaeuser initiated an action against the province in 2013 and Resolute was added as a party to the litigation. Superior Court Justice Glenn Hainey ruled that the indemnity was not restricted to third-party claims, as Ontario argued. It goes back to the debate over contractual interpretation — textual or contextual. PAUL DAVIS, Paliare Roland Rosenberg Rothstein LLP TOP 25 MOST INFLUENTIAL LAWYERS IN CANADA Nominate your choices between February 25 and April 2 VISIT WWW.CANADIANLAWYERMAG.COM/SURVEYS Untitled-2 1 2019-03-04 4:06 PM

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