Ecolex Logo
The gateway to
environmental law
Search results » Jurisprudence

The Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment.

Country/Territory
Canada
Type of court
National - higher court
Date
May 28, 2010
Source
UNEP, InforMEA
Court name
Ontario Divisional Court
Judge
Whalen, Sachs and Herman.
Reference number
2012 ONSC 2708
Language
English
Subject
Water, Environment gen., Waste & hazardous substances
Keyword
Water quality standards Hazardous substances Liability/compensation Freshwater quality/freshwater pollution
Abstract
In late 2008, several hundred litres of furnace oil leaked from a basement of a property located in the City. The property owner's insurance company retained a consultant to begin remediation, during which it was discovered that furnace oil had entered into the City's municipal storm sewer system and culverts, and was being discharged into Sturgeon Lake. The consultant notified the Ministry of the Environment, and the Ministry, in turn, ordered the property owner to eliminate adverse effects caused by the spill and to restore the natural environment. By March 2009, the property owner's insurance coverage became insufficient to cover any clean-up efforts beyond the property boundary. By then, the property itself had sufficiently been remediated but contamination on the City's property still had the potential to impact Sturgeon Lake. Accordingly, in late March 2009, the Ministry issued an order against the City to take all reasonable steps to prevent discharge of the contaminant from its property. The City requested a review of this order by the Director who then confirmed the order on April 9, 2009. At the Tribunal level, the City unsuccessfully tried to argue that the clean-up order should not have been issued against an innocent party because it was unfair and contrary to the "polluter pays" principle. In November 2009, the Tribunal granted the property owner's motion which prevented the City from leading evidence relating to the parties' fault and the reasonableness of any costs incurred in remediating the spill. The Tribunal heard the City's appeal in April 2010 and dismissed the case in July 2010. It found that the Act clearly contemplates some potential unfairness to innocent owners by "saddling" them with initial liability to carry out remediation. In the context of a migrating contaminant on the City's property, the appropriate action under the Act is for the City to take immediate measures to safeguard Sturgeon Lake and to leave questions about ultimate financial liability to another forum. The Ministry did not need to be satisfied that reimbursement to the City would be guaranteed before acting and, therefore, the clean-up order was sensible within this context. By the time the City's appeal of the Tribunal's decision reached the Divisional Court in April 2012, it was moot as the City had already completed remediation in accordance with the clean-up order out of public interest. Both the City and the Ministry urged the Court to hear the appeal to help give guidance for future situations. The Divisional Court found that the Tribunal did not err.