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Environmental Scan of Radon Law and Policy: Best Practices in Canada and the European Union

Review of law and policy on radon gas across Canada and select EU countries across areas of workplace health and safety, occupier's liability, tenants rights, public health and other legal and policy domains. . Shows where new legislation and
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    Environmental Scan of Radon Law and Policy: Best Practices in Canada and the European Union August, 2018    2 About CELA  - The Canadian Environmental Law Association (CELA) is a non-profit, public interest organization established in 1970 to use existing laws to protect the environment and to advocate environmental law reforms. CELA works toward protecting public health and the environment by seeking justice for those harmed by pollution or poor decision-making and by changing policies to prevent problems in the first place. Since 1970, CELA has used legal tools, undertaken ground-breaking research and advocated for increased environmental protection and to safeguard communities. As a specialty clinic funded by Legal Aid Ontario, our primary focus is on assisting low-income people and disadvantaged communities. www.cela.ca  About CAREX Canada  - CAREX (CARcinogen EXposure) is a multi-institution research project that combines academic expertise and government resources to generate an evidence-based carcinogen surveillance program for Canada. CAREX Canada has examined the Canadian context to identify what, where, and how many carcinogens people are exposed to and, where data are available, has generated estimates of exposure levels. Activities also include knowledge mobilization to make CAREX information available and accessible to Canada's cancer prevention and policy arena. Since 2007 CAREX has been funded by the Canadian Partnership Against Cancer, an independent organization funded by Health Canada to accelerate action on cancer control. CAREX Canada has been hosted at Simon Fraser University’s Faculty of Health Sciences since 2013. www.carexcanada.ca  Acknowledgements This report was prepared by Noah Quastel, Legal Counsel, and Anne-Marie Nicol, at CAREX Canada, and Morten Siersbaek, Legal Counsel and Kathleen Cooper, Senior Researcher and Paralegal, at the Canadian Environmental Law Association (CELA) CELA and CAREX Canada gratefully acknowledge the assistance during the preparation of this report from Health Canada staff within the National Radon Program in the national and regional offices. We also thank the many people we interviewed, including officials within provincial, territorial, and municipal governments across Canada, public health officers, and the leadership and membership of the Canadian Association of Radon Scientists and Technologists (CARST). The review of law and case law herein is current to June of 2018. Health Canada commissioned and paid for this report. However, the views expressed herein are those of the authors and do not necessarily represent the views of Health Canada. Suggested citation: Quastel, N., Siersbaek, M., Cooper, K. and Nicol A-M. 2018. Environmental Scan of Radon Law and Policy: Best Practices in Canada and the European Union. Toronto and Burnaby: Canadian Environmental Law Association and CAREX Canada.    3 CONTENTS PART 1 – INTRODUCTION, SUMMARY, AND RECOMMENDATIONS 6   1.1 Shared federal-provincial jurisdiction and often indirect coverage in law and policy 7   1.2 Federal action on radon 7   1.2.1 The National Radon Program 7   1.2.2 Canada Labour Code  radon provisions still excessively out of date 7   1.2.3 Testing and mapping efforts in federal buildings and private homes 8   1.2.4 Evaluation of the C-NRPP 8   1.2.5 Federal spending or taxation powers to assist with radon mitigation 8   1.2.6 First Nations and housing 8   1.2.7 Federal-Provincial-Territorial Radiation Protection Committee could do more 9   1.3 Provincial action on radon 9   1.3.1 Provincial/Territorial building codes 9   1.3.1.1 Atlantic provinces 9   1.3.1.2 Ontario and Quebec 10   1.3.1.3 Prairie provinces 10   1.3.1.4 British Columbia and the north 10   1.3.1.5 The need to learn from experience 10   1.3.2 Occupational health and safety 11   1.3.2.1 Canada Labour Code and NORM Guidelines 11   1.3.2.2 General duty clauses, indoor air quality and ventilation, and radiation regulation 12   1.3.2.3 Worker’s compensation 12   1.3.2.4 Government as employer 12   1.3.3 Real estate transactions and home warranty programs 13   1.3.3.1 Property disclosure statements; latent defects 13   1.3.3.2 New home warranty 13   1.3.3.3 Radon contingency clauses 14   1.3.3.4 Notice on title 14   1.3.3.5 Third-party certification of buildings 14   1.3.4 Occupier’s Liability 14   1.3.5 Residential Tenancies 15   1.3.5.1 Good state of repair and quiet enjoyment provisions 15   1.3.5.2 Public health and housing regulations 15   1.3.5.3 Investigative powers 16   1.3.5.4 Government as landlord and occupier 16   1.3.6 Child care and schools 16   1.3.7 Public health 16   1.3.7.1 Maintenance standards 17   1.3.8 Incentive programs for mitigation 17   1.3.8.1 Tax credits or grants 17   1.3.8.2 Prizes, loan programs, and landlord and tenant cost sharing 18   1.4 Recommendations for Health Canada to achieve increased radon testing and mitigation across Canada 18   1.5 Recommendations for provincial/territorial governments in Canada to achieve greater radon protection 21   PART 2 - JURISDICTION OVER RADON LAW AND POLICY IN CANADA 24      4 2.1 Radon and Canada’s constitutional framework 24   2.1.1 Federal jurisdiction 24   2.1.2 Provincial jurisdiction 25   2.1.3 Municipal jurisdiction 25   2.2 Radon protection is infrequently codified in federal or provincial law 25   2.3 Additional radon-focused activities and areas of shared jurisdiction 26   PART 3 – AREAS OF FEDERAL RESPONSIBILITY 27   3.1 Introduction 27   3.2 Testing and mapping efforts in federal buildings and private home 28   3.2.1 Radon testing in First Nations communities 29   3.3 National certification program 30   3.3.1 Establishing the Canadian certification program 30   3.3.2 C-NRPP policies and procedures 30   3.3.3 Evaluating C-NRPP 30   3.3.3.1 Lack of mandatory requirements for hiring C-NRPP professionals 31   3.3.3.2 Radon testing during real estate transactions 32   3.4 National Building Code 33   3.5 The federal government and First Nations 34   PART 4 – AREAS OF PROVINCIAL/TERRITORIAL RESPONSIBILITY 37   4.1 Introduction 37   4.2 Provincial/Territorial Building Codes 37   4.2.1 Introduction 37   4.2.2 Atlantic Canada 38   4.2.3 Ontario and Quebec 40   4.2.3.1 Quebec’s Pilot Mitigation Project 41   4.2.4 Prairie Provinces 42   4.2.4.1 Winnipeg Demonstration Project on Building Code Application 42   4.2.4.2 2017 Alberta Radon Survey 43   4.2.5 British Columbia and the North 44   4.2.5.1 Castlegar Mitigation Comparison 45   4.2.5.2 Tracking of Castlegar Radon Testing - Donna Schmidt Lung Cancer Prevention Society 46   4.3 Occupational health and safety 48   4.3.1 Introduction 48   4.3.2 Effective Dose 48   4.3.3 The Canada Labour Code  and the NORM Guidelines 50   4.3.4 General duty clauses 52   4.3.5 Indoor air quality and ventilation 53   4.3.6 Radon-specific measures 54   4.3.7 Worker’s Compensation 55   4.3.8 Government as employer 58      5 4.4 Real estate transactions and home warranty programs 60   4.4.1 Introduction 60   4.4.2 Property disclosure statements 61   4.4.2.1 Only current actual knowledge counts 61   4.4.2.2 Material latent defects 62   4.4.3 New home warranty 65   4.4.4 Radon contingency clauses 69   4.4.5 Notice on title 70   4.4.6 Third-Party Certification of Buildings 71   4.5 Occupier’s liability 74   4.6 Residential tenancies 79   4.6.1 Introduction 79   4.6.2 Maintenance and good repair obligations 81   4.6.3 Quiet enjoyment 83   4.6.4 Case law and limited review 84   4.6.5 Public health and housing regulation 86   4.6.6 Investigative powers 87   4.6.7 Government as landlord and occupier 88   4.7 Child care and schools 91   4.7.1 Child care facilities 92   4.7.2 Schools 93   4.8 Public health 94   4.8.1 General provisions promise but do not deliver 94   4.8.2 What’s new 95   4.8.3 Maintenance standards 98   4.9 Incentive programs for mitigation 99   4.9.1 Strong p rima face  justifications 100   4.9.2 Tax credits or grants 102   4.9.3 Prizes 102   4.9.4 Loan programs 102   4.9.5 Landlord and tenant cost sharing 103   PART 5 - MUNICIPAL LEADERSHIP 104   5.1 The role of municipalities 104   5.1.1 Municipal leadership – Victoriaville, Quebec 105   5.1.2 Municipal leadership - Thunder Bay, Ontario 106   5.1.3 Municipal leadership - Guelph, Ontario 108   APPENDIX 1 – SCAN OF RADON REGULATIONS, POLICIES AND INITIATIVES IN EUROPE APPENDIX 2 – WORKPLACE LEGISLATION AND RADON – BY PROVINCE AND TERRITORY APPENDIX 3 – OCCUPIER’S LIABILITY LAW – BY PROVINCE AND TERRITORY APPENDIX 4 – RADON AND RESIDENTIAL TENANCIES LAW – BY PROVINCE AND TERRITORY APPENDIX 5 – RADON TESTING IN SCHOOLS AND CHILD CARE CENTRES – BY PROVINCE AND TERRITORY  
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