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real estate firms, and property owners to cover current and future business and tourism-related losses, cleanup costs, and environmental damages. On May 7, an interesting complaint was issued in Louisiana in Firpo v. Hayward. Katherine Firpo's claim is a verified share- holder derivative complaint, a suit brought by a shareholder on behalf of a corpora- tion against a third party, often an insider of the corporation itself. The Firpo claim is filed in the name of and on behalf of nom- inal defendant BP with action brought against certain directors and officers of BP and other defendants. The plaintiff is a "current shareholder of BP, having held American Depositary Receipts of BP since March 7, 2007." Firpo pleads in common law and derivatively against certain directors and officers of BP for breach of fiduciary duties of trust, due care, oversight, good faith, candor, and loyalty, and waste of corporate assets. Firpo also pleads negligence, default, breach of duty, and/or breach of trust. The upshot of Firpo's complaint is that certain BP directors and officers ". . . have unreasonably and unnecessarily caused BP to expend billions of dollars of corporate assets, and have subjected the company to additional liability in the untold billions of dollars, to the extreme detriment of the company." It is conceivable that in Canada the failure to evaluate, calculate, and miti- gate risks that result in an environmen- tal disaster could lead to the issuance of a Firpo-type claim. Under the Canada Business Corporations Act, s. 239, com- pany shareholders may commence deriva- tive actions. Derivative actions are also available under provincial laws including the Ontario Business Corporations Act, s. 246. Under the CBCA, the complainant may apply to the court for leave to bring an action in the name of the corpora- tion. The complainant must give advance notice to the corporation's directors and act in good faith. The prosecution of such claim must "appear to be in the interests of the corporation." The fact that derivative actions are statutorily available in Canada provides a strong incentive for directing minds of Canadian companies to diligently assess environmental and other risks of business operations. Corporate counsel has a role here. The risk of derivative actions for bad corporate behaviour can and should be brought to the attention of company directors and officers. Corporate counsel should explain what a derivative action is and how daunt- ing it is for the corporation and its direct- ing minds, personally. Identification, assessment, and miti- gation of environmental risk should not be deferred on the board of directors' meeting agenda. Firpo and similar suits deliver an unyielding reminder that cor- porate directors and officers are exposed to personal risk of environmental liability. Corporate counsel ought to send a strong message to the board — preferably before disaster strikes. IH Marc McAree is a partner at Willms & Shier Environmental Lawyers LLP in Toronto. The Law of Climate Change in Canada An essential text for those developing expertise in climate change law This is the first and only resource to provide an in-depth description and analysis of the complex and ever expanding array of domestic and international laws and initiatives addressing climate change in Canada. Containing comprehensive coverage of provincial and federal legislation and policy developments from across Canada, The Law of Climate Change in Canada also describes in detail some of the many emerging climate change law sub-disciplines, including: • carbon finance • litigation • real property Co-authored by leading lawyers and academics from across North America ORDER your copy today Looseleaf & binder • $320 Releases invoiced separately (2/yr) P/C 0268030000 ISSN 1920-695X The editor, Dennis Mahony, is widely regarded as a leading expert in this complex and emerging new field. He has recruited an exceptional group of lawyers and academics from across Canada and the US to ensure unrivalled subject matter breadth and depth. Stay on top of the latest legal developments and manage emerging issues • tax • securities law and disclosure For a 30-day, no-risk evaluation call: 1.800.565.6967 CL0810 Mahony_Law of Climate Change (CL 1-2h).indd 1 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. INHOUSE AUGUST 2010 • 6/16/10 9:26:34 AM 9 Editor: f Dennis E. Mahony With contributions f ro rom across Canada and the U.S. m a team o f leading lawyers and academics