By Saul Chernos

What does it take to be an environmental lawyer? Answers were in ample supply at the seventh edition of the Willms & Shier Environmental Law Moot — Canada’s first and only national moot court competition devoted to environmental law.

Recently held at the Federal Court of Canada in Toronto, the moot court brought law students, lawyers, and judges together to delve into a groundbreaking brownfields case that not long ago put the polluter-pay principle and responsibilities for legal costs under the microscope in British Columbia.

Victory Motors (Abbotsford) Ltd. v. Actton Super-Save Gas Stations Ltd. started out as a fairly standard brownfields case. In 2009, two abutting property owners discovered their sites were contaminated by gasoline from underground storage tanks. The two neighbours, Victory Motors and Jansen Industries, sued three previous owners of a gas station located on one of the properties.

Before the litigation even started, Victory Motors and Jansen Industries remediated their properties, acquiring Certificates of Compliance in keeping with section 53(3) of British Columbia’s Environmental Management Act (EMA). The Plaintiffs also settled with two of the companies, Shell Canada, and Chevron Canada, leaving Actton Super-Save the lone respondent and the applicants seeking $395,706 in remediation costs plus $150,000 in legal fees. Victory Motors claimed additional costs associated with removing the underground tanks, loss of rental income during remediation, and potential costs stemming from any future litigation.

A law student mooting; 30 law students participated in the 2024 competition. Credit: Willms & Shier Environmental Law.

The British Columbia Supreme Court awarded remediation costs to the plaintiffs, but declined to award legal fees as recoverable costs of remediation. The plaintiffs turned to the British Columbia Court of Appeal, which in 2021 confirmed that legal costs reasonably incurred in connection with the remediation of a contaminated site could be recoverable as remediation costs.

While the case proved significant for brownfields jurisprudence in Canada, the decision itself was of secondary importance as far as the Willms & Shier Environmental Law Moot Court Competition was concerned. Every two years this moot court offers a special opportunity for budding legal scholars to walk in the footsteps of lawyers who have argued some of Canada’s most compelling environmental cases and, in a structured court setting, participate both as appellants and respondents in enacting imagined appeals to a higher court.

The Devil Is In the Details

In this case, the Supreme Environmental Moot Court of Canada granted student participants the right to appeal on certain key points. First, may a court take into account the benefit enjoyed by a party in obtaining a Certificate of Compliance when apportioning liability for the costs of remediating a contaminated site among responsible persons under B.C.’s EMA? Secondly, are legal costs associated with remediation or with pursuing litigation recoverable under the EMA? And, accordingly, does the answer differ depending upon whether the person seeking cost recovery is considered a “responsible person” or “any person” under Section 47 of the same Act?

In short, does polluter-pay end at some point when an otherwise innocent property owner might have to bear at least some of the costs associated with pollution that happened on another party’s watch?

The Preliminary Round Highlights

The sun had barely launched when the 10 competing teams, along with lawyer coaches and supportive family members, rose to acknowledge the three judges in each of the five courtrooms. For this opening round, lawyers specializing in environmental law listened to each team of co-counsels, interjecting occasionally to seek clarification regarding case minutiae and sections of legal code.

Each team had already filed detailed factums with the moot. These written arguments enabled moot judges to review case details and key precedents and legislation the participants planned to reference in their oral arguments. Now it was time for those arguments to begin. In each courtroom, the student teams each took turns arguing for the appellants and, separately, for the respondent.

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The moot awards were artwork by Robbie Craig. Credit: Willms & Shier Environmental Law.

“We agree with the Court of Appeal that the Certificate of Compliance cannot be a benefit when apportioning responsibility for remediation costs under Section 35(2) of the Contaminated Sites regulation in this case,” one appellant counsel stated in introducing an argument of considerable complexity. “Where we take issue is that the Court of Appeal did not complete its analysis.”

As the arguments progressed, a counsel for the respondent addressed the notion of fault and responsibility. “Regarding the structure of the EMA, we submit that the appellants have misunderstood the structure of allocating responsibility under Section 35 of the Contaminated Sites regulation. The EMA and regulations are not concerned with finding of faults. This is because proving faults for contamination that occurred decades in the past would be near impossible when multiple parties are involved…in fact, the word ‘fault’ does not appear anywhere in the Act or the Regulation.”

While the three moot court judges in each courtroom asked questions about details of the case and about citations and references when those arose, the focus was squarely on the presentation and management of arguments.

“You lived and breathed this file,” one judge remarked. “Your pace was very good. Even very experienced counsel sometimes don’t get the pace right.” The judges praised participants for making direct eye contact, briefly outlining their planned direction, and asking for momentary pauses if they needed time to carefully consider their response to a question from the bench. “There’s nothing wrong with saying you need to think a little bit,” said one judge.

Semi-Finals Face-Off

With both sets of arguments completed and comments made, the judges retired to their chambers and at lunchtime announced which four teams would be facing off in the semi-finals. “The quality of the oral arguments (this morning) was really high,” said Stepan Wood, moot co-chair. “You all have great futures ahead as litigators if that’s what you choose to pursue.”

The semifinals unfolded in much the same way the preliminary round did, though each team presented their case only once, with one side earning the privilege of choosing whether they would act for the appellants or for the respondent.

Interjections from judges were perhaps a tad more intense than during the opening round. When one appellant counsel was making the case to claim legal costs, for instance, a judge asked if such a claim might potentially constitute an unjust windfall. “If I may have misspoke I’d like to clarify that,” the counsel replied. “There are beneficial outcomes to obtaining a certificate compliance. For example, you get a clean site. But…these are not benefits. These are desired outcomes of the legislation. In this case, there was no windfall.”

With the semi-finals concluded, the judges offered their assessment. “You each had good structure to your arguments…but you went too quickly,” one judge noted, advising the students to find some sort of technique to slow down. Judges acknowledged the stressful environment of the courtroom and praised participants for maintaining their composure, asking if any further explanation might be helpful, and, at one point, having the fortitude to correct a judge on a matter of fact.

Following a brief recess for coffee, Wood and fellow moot co-chair Marc McAree announced Teams 3 and 8 would advance to the finals and directed everyone to Courtroom 3, where Justice Michelle O’Bonsawin of the Supreme Court of Canada, Justice David Stratas of the Federal Court of Appeal, and Justice Katherine van Rensburg of the Court of Appeal for Ontario would hear the arguments.

The Championship Match

Maybe it was the prolonged silence before the three Justices entered the room that suggested the level of rigour was about to intensify. No sooner had the first counsel begun to outline the appellant’s case than Justice O’Bonsawin said the bench had read the files and the co-counsels should proceed directly to their argument.

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From that moment, the Justices turned the tables decisively, asking question after question, effectively moving the arguments off-script and forcing the student counsels to think in the moment.

“What is the Certificate of Compliance all about? What does it achieve?” Justice O’Bonsawin asked after one counsel mentioned it briefly while making a point. A few minutes later, Justice Stratas asked the counsel to state the full name of a case a counsel referenced. When the counsel answered without hesitation, Justice Stratas asked if the counsel knew the name of the judge. “I do not,” the counsel replied matter-of-factly before proceeding with the argument.

During an argument by one counsel for the respondent, Justice van Rensburg inquired about proportional contributions to remediation costs, and the counsel responded, citing multiple sources. Later, Justice O’Bonsawin asked for a counsel’s position regarding an application for fresh evidence in a particular situation. “Our position would be that assessing litigation costs in open court would undermine solicitor-client privilege,” the counsel responded.

The 2024 Willms & Shier Environmental Law Moot Champions: The University of Calgary team. Credit: Willms & Shier Environmental Law.

 

 

 

Words of Wisdom from the Bench

Nearly an hour later, the three Justices recused themselves, emerging soon afterwards to offer their assessment of the oral arguments. “A lot of the questions that we were asking was to test your knowledge of the record,” Justice van Rensburg explained. “It was probably the best I’ve seen so far in terms of thinking on your feet, in terms of not looking at us like deer in the headlights…and coming up with an answer even when the questions were a bit tricky.”

Justice Stratas commended counsels for pausing to think before answering, and acknowledged that lawyers spend considerable preparatory time anticipating potential questions and drafting responses. “My answers to questions were seldom done on the fly,” Justice Stratas said, adding that some lawyers prepare lists of facts they can quickly refer to as needed.

Justice O’Bonsawin, meanwhile, said voices that carry well in the courtroom stand the best chances of being heard. “We tend to listen more closely to the stronger voice than to the lower voice, where we have to strain more.”

In the keynote address after dinner, Justice O’Bonsawin outlined her trajectory to the Supreme Court and offered further advice. First, she said, find people to mentor you along the way. Secondly, Justice O’Bonsawin emphasized preparation as a key to success. “We were impressed with all of you today because, when we asked questions, you were able to respond and you knew the facts (and) the case law.” A third imperative, Justice O’Bonsawin said, is to safeguard your reputation and be especially careful with social media. “If you’re well respected, courteous, and really in touch with your clients, and if you respect opposing counsel and you’re respectful to the judges, your reputation is going to take you a long way.”

Lessons Learned

In the end, the University of Calgary placed first. In an interview, team member Nicole Achtymichuk said that preparation required considerable research about the case and applicable laws and regulations. Acknowledging the finals as intense, Achtymichuk called the moot “a good lesson for not being too tied to your script and understanding you might have to jump around and be really comfortable with the material.”

McGill University placed second, and team member Alicia Howse said the experience taught her the importance of teamwork and to think quickly and integrate feedback as soon as it’s received. “It’s about having a good conversation with the court, being prepared for their answers, and remaining flexible and adaptable to whatever is needed in a particular circumstances,” said Howse. “I’m amazed at how much we learned in a short period of time.”

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Megan Walwyn of the University of Victoria said the event reinforced the importance of focusing less on the outcome and more on “being present in the moment, listening carefully and just trying to enjoy the whole experience.” One standout tip she picked up involved taking time when asked a difficult question. “Instead of just launching into an answer, having a sip of water, and thinking about it before speaking…really helps to organize your thoughts.”

Athaven Nithianantha of Osgoode Hall Law School (York University) expressed similar sentiments. “It’s about keeping your composure. A good litigant would have preemptively thought about these questions and would have had answers ready in their notes.”

Overview of the Moot Competition

Moot Co-Chairs:

  • Marc McAree, Partner, Willms & Shier Environmental Lawyers LLP
  • Stepan Wood, Peter A. Allard School of Law, University of British Columbia

Moot Administrator:

  • Joanna Vince, Partner, Willms & Shier Environmental Lawyers LLP

Factum Judges:

  • Stuart Chambers, Partner, McLennan Ross
  • Heather McLeod-Kilmurray, Associate Professor, Faculty of Law, University of Ottawa

Moot Committee:

  • Stuart Chambers, Partner, McLennan Ross
  • Sébastien Jodoin, Associate Professor and Canada Research chair in Human Rights, Health, and the Environment, Faculty of Law McGill University
  • Heather McLeod-Kilmurray, Associate Professor, Faculty of Law, University of Ottawa
  • Ramani Nadarajah, Counsel, Canadian Environmental Law Association
  • Chris Tollefson, Professor of Law, University of Victoria

The Championship Match Judges:

  • The Honourable Michelle O’Bonsawin, Judge, Supreme Court of Canada
  • The Honourable David Stratas, Acting Chief Justice, Federal Court of Appeal
  • The Honourable Katherine van Rensburg, Judge, Court of Appeal for Ontario

Champions

  • First Place Team:

University of Calgary, Faculty of Law — Nicole Achtymichuk and Amanda Cha.

Coaches: Gavin Fitch and Alex Dingman.

  • Second Place Team:

McGill University, Faculty of Law — Selene Coiffard-D’Amico, Alicia Howse and Raina

Young. Coach: Katia Opalka.

  • Third Place Team:

University of Saskatchewan College of Law — Carter Easton, Lindsay Wigglesworth and

Kathleen Stoneham. Coach: Leah Howie.

Meinhard Doelle Award: First Place Oralist

  • Amanda Cha — University of Calgary, Faculty of Law.

Distinguished Oralists

  • Aitana Robinson — Western University, Faculty of Law
  • Kathleen Stoneham — University of Saskatchewan College of Law
  • Megan Walwyn — University of Victoria, Faculty of Law
  • Raina Young — McGill University, Faculty of Law
  • Selene Coiffard-D’Amico — McGill University, Faculty of Law
  • Sydney Fougere — Schulich School of Law, Dalhousie University.

Barry N. Spiegel Award: For the Best Appellant’s Factum

  • McGill University, Faculty of Law — Selene Coiffard-D’Amico, Alicia Howse and Raina Young. Coach: Katia Opalka.

Paul Emond Award: For the Best Respondent’s Factum

  • University of Calgary, Faculty of Law — Nicole Achtymichuk and Amanda Cha. Coaches: Gavin Fitch and Alex Dingman.

This edition of the moot was financially supported by a range of sponsors in the environment industry, including: Altus Group, Berkley Canada, BlueFrog Environmental Consulting Inc., Environmental Science & Engineering Magazine, EXP Services Inc., Geosyntec Consultants, Green Infrastructure Partners Inc., Grounded Engineering Inc., InSitu Remediation Services, Intrinsik Corp., Montrose Environmental, MTE Consultants, PGL Environmental Consultants Ltd., Pinchin Ltd., Premier Environmental Services, Ramboll Canada Inc., RWDI, SafeTech Environmental Limited, Stantec, Terrapex, Vertex Environmental Inc., and XCG, a division of Trace Associates Inc.

The moot team includes dozens of esteemed environmental lawyers, timekeepers, bailiffs, scorekeepers, technicians, photographers, videographers, and committee members and organizers. The 2024 moot by the numbers: 60 volunteers, 30 competitors, 22 sponsors, 10 teams, 2 to 3 persons per team, and 1 to 2 coaches per team.

The next environmental law moot will be held in 2026.

For further information, contact:
Joanna Vince, Moot Administrator
Willms & Shier Environmental Lawyers LLP
MootAdmin@willmsshier.com

http://moot.willmsshier.com

Profile photo of Saul Chernos

Saul Chernos is a freelance writer based in Toronto, Ontario.

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