Innocent Parties can Still be Held Responsible for Clean-up

Posted on: Tuesday, June 11th, 2013

In the May 28, 2012 decision of The Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment, the Divisional Court affirmed the Environmental Review Tribunal (“ERT”) November, 2009 decision. You can access an article we wrote on this decision which was published in the March 2013 issue of Municipal World Magazine by clicking here. The result was that the Ministry of the Environment (“MOE”) can order innocent parties who are NOT responsible for discharging pollution into the environment to clean-up the contamination which has impacted their own property. This decision was appealed to Ontario Court of Appeal on May 10, 2013, where the decision was upheld and the appeal dismissed.

The Court of Appeal agreed that the question was not who was at fault for the spill, but rather, whether or not the Order against the City should be revoked. To determine this, all three courts focused on the “need to serve the environmental protection objective of the legislation” rather than on the “polluter pays” principle and the finding of fault on the part of the City. This is because focusing on who was at fault would not provide any assistance in determining how the need to serve and protect the environment would be addressed if the order were to be revoked. It was decided that the proper course of action was to exclude the evidence of fault and uphold the order which would require the City to remediate the contaminated property.

It is important to note that if the City were to be able to provide some evidence of a solution which would have protected the environment the outcome of this appeal may have been different. However, the City provided no evidence of an alternative solution which would serve the environmental protection objective of the Act, leading to the decision to uphold the no fault order.

Parties subject to no fault orders are eligible under section 100.1 of the Act to seek to recover costs from parties who had some control of the pollutant. The City has taken advantage of this section of the Act, and is seeking to recover some of the costs associated with remediation from the Respondents, specifically the Gendrons (neighbours), Thompson Fuels Ltd. and the Technical Standards and Safety Authority (TSSA). This proceeding has not yet come to a conclusion.

This decision has important implications for innocent landowners. Landowners who have no control over the property from which contamination originates are exposed to substantial risk. Landowners, and especially municipalities, who own large amounts of land adjacent to potential contaminating sources need to be aware of the potential liability and keep informed. If the MOE is involved with a neighbouring property, the adjacent landowner should put the MOE on notice that they are aware there is a potential for liability if the contamination goes off-site. Therefore, you should request to be informed about everything that is going on, including what the MOE is doing to make sure the contamination is contained and properly remediated.

The full ERT 2009 decision can be accessed at: http://www.ert.gov.on.ca/files/ORD/09007o4.pdf

The full Divisional Court 2012 decision can be accessed at: http://canlii.ca/t/frhhk

The full Ontario Court of Appeal 2013 decision can be accessed at: http://canlii.ca/t/fxd71

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

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