Integral to the 2008 B.C. Energy Plan is a recommendation that all new provincial buildings be built to LEED (a voluntary rating system based on energy and environmental performance) gold or equivalent standards, but so far, liability associated with LEED certification has not been tested by the courts, says Karin Grubb, an associate in Borden Ladner Gervais LLP’s Vancouver office, and Doug Sanders, a partner also in the Firm’s Vancouver office.

The first litigation to deal with such matters, Shaw Development v. Southern Builders, appears to have settled out of court in the U.S., says Grubb and Sanders. And as illustrated by Shaw, 'green building issues may be unique from those stemming from ‘standard’ developments.'

In fact, 'many of these unique and unresolved issues relating to green building may result in significant economic consequences not seen historically. Parties must take care during contractual negotiations to consider potential damages, representations made to tenants, conditions attached to funding, investment or donations, conditions attached to projected insurance or bonding coverage and rates, municipal requirements, corporate pressure to achieve LEED certification (particularly for public entities), anticipated building operational costs and other possible issues such as those arising from GHG emissions.'