Should it really take more than 22 years to clean up a domestic
fuel spill? The
Environmental Review Tribunal has allowed a Muskoka cottager to
withdraw his appeal against the latest in a series of Ministry of
the Environment orders arising out of a 1990 spill. According to
the ERT, Alex Krek lost 3500 litres of heating oil from his above
ground tank in 1990. He didn't report the spill until the
following year. Despite some cleanup efforts, and many years of
litigation, there is still free product on wells on neighbouring
A 2006 Provincial Officer's order required Mr. Krek to
submit a Remedial Action Plan. After appealing the order, Mr. Krek
submitted a RAP in 2007. The RAP promised a Site Conceptual Model,
which Mr. Krek had not submitted by May 2009. The MOE issued a new
POO requiring him to submit a Site Conceptual Model, described in
the POO as a review of existing studies. The purpose of the SCM was
to help evaluate remedial options.
Mr. Krek appealed, but eventually submitted a report. The report
reviewed all existing information, and concluded that it would take
$150,000 to $250,000 to get enough additional information about the
subsurface to develop a remedial plan. " "This lack of
knowledge makes it particularly difficult to make any sensible
decisions as this time as to any preferred remedial solution."
Despite this very disappointing conclusion, the Ministry agreed
that this report satisfied the order. Mr. Krek then sought to
withdraw his appeal. His neighbours objected, asking the ERT to
order Mr. Krek to do more, more quickly, to get the spill cleaned
After two years of wrangling, the ERT allowed Mr. Krek to
withdraw this appeal. The ERT's Rule 200 sets out its claim to
jurisdiction to prevent parties from withdrawing their appeal, if
the withdrawal would prejudice the environment, e.g. if it is based
on a settlement that undermines or weakens the initial Order. (That
didn't apply here, since the MOE was satisfied that Krek had
satisfied the Order, and the ERT accepted the Director's
decision on that.) The broader question was whether the neighbours
should be able to force the appeal to continue, in the hope of
persuading the ERT to broaden the Director's original
The ERT ruled that it would not make a broader order in this
case, because the underlying appeal was restricted to the
"subject matter" of the Site Conceptual Model, not to the
"Even if the Tribunal could do what is being asked for by
some of the Parties, the issuance of a direction to the Director to
take some kind of action is not the most expedient mechanism to
achieve this goal. At best, after the continuation of the Hearing,
the Tribunal could order the Director to examine the data gaps
identified in SCM. The Director has already committed to undertake
this task. The Tribunal expects, along with all affected interests,
that the Director will, in an expedited fashion, outline a plan of
action for the remediation of the Site that will address the
research needs and actions that would be protective of both the
local environment and the interests of the neighbours. Again, the
Director has committed, and the Tribunal fully expects, that the
neighbours would have direct input into this plan of
So, no one knows what to do about the contamination, and the
affected neighbours are still waiting... Imagine how they must
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In Crombie Property Holdings Limited v McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 15 (Crombie v McColl ), the Ontario Court of Appeal released an important decision regarding environmental due diligence in a real estate transaction, . . .
Last August, we reported on recent case law dealing with the difficult question of how to determine limitation periods in environmental claims. In the January 2017 Court of Appeal decision of Crombie Property Holdings Limited v. McColl-Frontenac Inc., the court overturned the trial court's decision that the case was started too late on the basis of "palpable and overriding errors".
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