Going green

Good morning. I recently appeared on In All Fairness, a podcast hosted by the Canadian Institute for the Administration of Justice. Tune in for some behind-the-scenes info about this newsletter, or my strong views on accessible legal information.

You can find the episode on the CIAJ’s website, or wherever you get your podcasts (like Spotify).

Have a great weekend.

— Dylan Gibbs

• Riding the greenwashing wave

• Vicarious liability for an employee’s data breaches

• A broad procedure for pre-litigation discovery

• And a wrongful conviction lawsuit

ENVIRONMENTAL LITIGATION

Taking a Stand against greenwashing

Greenwashing claims are booming. And Stand.earth is right in the thick of it. After reporting Lululemon to the Competition Bureau earlier this year, Stand took matters into its own hands last week with a lawsuit against FortisBC.

Driving the litigation: Stand alleges that FortisBC uses misleading statements to steer customers away from electric heating. According to the lawsuit:

• FortisBC makes renewable natural gas seem plentiful, even though it doesn’t have enough to go around.

• It gives customers the impression they can get renewable natural gas piped straight to their homes, even though that’s not how it works.

• And it claims that natural gas heating is cheaper than electricity, even though that’s generally not the case in BC.

Where are the receipts? Some of Stand’s allegations leave the heavy lifting up to implications. The advocacy group points to a YouTube video where FortisBC says it has made “real progress towards [reducing] the use of fossil fuels” by “providing renewable natural gas”.

• According to Stand, FortisBC is implying that it can provide renewable natural gas straight to anyone who wants it. Stand says reality looks more like an offset program — FortisBC purchases renewable gas on behalf of customers who pay extra for it, and that gas ends up somewhere in the system, but customers can’t get the renewable option delivered right to their homes.

Some of the alleged misrepresentations are more express though. Stand points to FortisBC webpages that claim gas furnaces come with lower energy costs than electric heating pumps. According to Stand, the math behind those claims doesn’t check out for many BC homeowners.

Big picture: Early greenwashing claimants tended to sit back and let regulators do the upfront work. The case against Keurig over its “recyclable” single-use coffee pods, for example, started at the Competition Bureau. Consumers followed up with class actions, but only after Keurig settled the regulatory proceedings (and coughed up over $3 million in penalties in the process).

Now some litigants are going straight to the courts — like the consumers who sued Dollarama and several other companies for calling checkout bags recyclable instead of reusable. And like Stand, whose lawsuit against FortisBC seems to be part of a trend signalling growing confidence in the viability of greenwashing claims.

HEARSAY ROUNDUP

Canadiana

✍️ BC introduced legislation that would allow federally-recognized First Nations to own land in their own names.

🔎 Newfoundland and Labrador’s Supreme Court certified a class action against a healthcare employer based on data snooping by a rogue employee. The Court followed a BC Court of Appeal decision holding employers vicariously liable for privacy breaches.

🧑‍⚖️ A New Brunswick judge said the province failed to consider minority language rights when it decided to close two courthouses.

💼 Two men wrongfully convicted of murder in Manitoba are suing over the prosecution that saw them locked up for more than a decade. One of the defendants is former Crown prosecutor George Dangerfield, who is also connected to four other shaky murder convictions.

🏡 As promised in the province’s recent budget, BC tabled legislation to impose a tax on house flipping. The tax works on a sliding scale — the government plans to pocket 20% of the profit on houses sold within one year of purchase, decreasing to 0% between years one and two.

🙋 The New Brunswick Court of Appeal confirmed that the province’s civil procedure rules take a broad approach to pre-litigation discovery. It was the Court’s first interpretation of a rule that has led to inconsistent lower court decisions:

Beyond the border

🫥 Dentons UK appointed a Shadow Executive Team — a group of junior firm members tapped to broaden leadership perspectives.

THINGS NOT TO DO AS A LAWYER

→ Don’t refer to a fourteen-year-old girl as a sexually mature young woman. A lawyer for a children’s aid society put that statement in an affidavit, without client approval, in response to what he perceived as a misrepresentation by opposing counsel. The LSO found him guilty of misconduct:

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