Septic Systems and Ontario Law

The Ontario Onsite Wastewater Association noted in their publication Septic Smart that investigators in Ontario estimate that 30 per cent of the one million household septic systems installed are failing to adequately protect the environment. When a change must be made to a septic system, such as repairs, replacements or installations, it is very important that you are familiar with the legal limitations imposed upon you in relation to where the system can be located with respect to your house, your well, your neighbour’s house and well and any bodies of water within the vicinity. Knowing the distances required is important in order to help ensure that wastewater from septic systems is unable to reach and contaminate any nearby water supplies, therefore, keeping our environment cleaner and our water safer.

In Ontario, all residential septic systems are regulated by the Ministry of Municipal Affairs and Housing (“MMAH”) under the Building Code Act, 1992, S.O. 1992, c. 23 (the Act). One of the main requirements of this Act is that any individual who plans to engage in construction, installation, extension, enlargement or alteration of any sewer system or building connected to the system, must obtain a building permit from their local Building Department. In Barrie, this Department is located at the City Hall on 70 Collier Street L4M 4T5, and an application for a Building Permit can be obtained by clicking here.

On July 13^th 2010, the Act was amended by Ontario Regulation 315/10 in order to help protect Ontario’s drinking water as well as the environment, and to help support the Lake Simcoe Protection Plan. This regulation established a requirement for on-site sewage system maintenance inspection programs to be conducted in specific areas by principal authorities such as municipalities, health units and conservation authorities. Many of the programs established in this regulation did not take effect until January 1, 2011. There are maps located on the MMAH website (which can be accessed by clicking here.) which indicate the areas that have been selected for maintenance programs within five years of January 1, 2011. If any concerns are identified in the initial inspection, further investigation may be required and authorities will address which steps need to be taken next.

The Lake Simcoe Region Conservation Authority also has a program which provides funding to landowners who are required to replace or repair defective or failing systems in order to protect ground/surface water. This program allows for landowners to qualify for 50 percent of the funding, up to a total of $5000.00, for eligible projects. In order for a project to be eligible, the system must be located 100 meters or less from surface water, or water sources which lead directly to surface water. Upgrades to septic systems due to household expansion, or any work that proceeds before approval under this program is granted will not be covered. For more information on this program click here.

When acting for a home buyer, it is preferable to request that the septic system be inspected, but in many cases this is not practical, especially during winter months which do not provide for easy access. Due to this, I would recommend that you ensure that a warranty is included in the agreement prior to finalizing the sale in order to protect against any unexpected delays or costs. For an inspection such as this, it may be conducted by simply hiring a licensed septic system installer, a sewage hauler or a professional engineer.

It is also important to insert a clause in the agreement of purchase and sale to warrant the septic system. Examples of a clause that should be inserted include:

“The Seller represents and warrants, to the best of the Seller’s knowledge and belief, that at the time of installation:

(1)  all sewage systems serving the property are wholly within the setback requirements of the property, and had received all required Certificates of Installation and Approval pursuant to the Environmental Protection Act;

(2)  all sewage systems serving the property had been constructed in accordance with the Certificates of Installation and Approval;

(3)  all sewage systems serving the property had received all required Use permits under the Act or any other legislation; and

(4)  all sewage systems serving the property have been maintained in good working order during the Seller’s occupancy and will be in good working order on closing.

Further, the Seller agrees to provide any and all documentation relating to the sewage system, within the Seller’s possession, or which may be made available to the Seller by the appropriate authorities, and given to the Buyer prior to the last date set for examining title. The Parties agree that these representations and warranties shall survive and not merge on the completion of this transaction, but apply only to the state of the property existing at the completion of this transaction.

The Seller agrees to provide evidence if the septic system has been pumped in the past two years or to have the septic system pumped out before the completion of this transaction and will provide a receipt to the Buyer on closing.”

Overall, understanding the signs of a failing septic system, and ensuring that they are properly installed and inspected is an important aspect that should be considered by anyone purchasing a home or trying to sell a home.

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.