The City of Kawartha Lakes has appealed to the Ontario Court
of Appeal from a Ministry of the Environment Order, which
imposed cleanup liability on the City for contamination it did not
cause. The City argues that the MOE should have imposed those
cleanup costs on the polluters, meaning either those who caused the
spill, or were negligent in cleaning it up, or the province itself
for its lax regulation of the oil tank and/or of the original
polluter's cleanup. The City says the s. 157.1 order against it
was unfair and contrary to the polluter pays principle. They argue
that the Environmental Review Tribunal and Divisional Court were wrong in preventing the
City from calling evidence about those at fault for the
contamination. This prevented them from trying to persuade the
Tribunal that the Order against the City should be revoked in
favour of a cleanup order against those at fault.
The province responded that it is entitled, at its discretion,
to impose such liability on non-polluters who are without fault of
any kind. The province says that its duty to protect the
environment requires this power, and that it properly exercised its
discretion to do so in this case. (The MOE had already issued a
cleanup order to the Gendrons, based on their contravention of the
EPA. The Gendrons had exhausted their insurance coverage, and had
announced their intention to stop their cleanup.) The province
argues that the Legislature deliberately intended to authorize no
fault orders to the innocent, and that those who receive such
orders are free to seek compensation in other ways. (Whether or not
such "other ways" really work in practice.)
One of the key issues argued was whether the MOE Director must
consider the polluter pays principle when issuing cleanup orders to
innocent non-polluters. The MOE says its officers apply its
Compliance Policy and its Statement of Environmental Values when
choosing whether to issue no-fault orders to non-polluters, but
should not consider the polluter pay principle when actually
issuing such orders. Fairness to an innocent non-polluter is, they
say, only one of many factors they must balance, and not the most
The appeal was argued yesterday before a panel of Justices
Rosenberg, Goudge, and Tulloch. Their decision was reserved.
The Gendrons strongly support the Ministry's attempt to
impose liability on the City. A separate lawsuit is ongoing in which the City
seeks to recover its cleanup costs from:
the Gendron's, [the homeowners];
Thompson Fuels [the fuel supplier];
Her Majesty the Queen [the Minister of Environment];
TSSA, [the province's Technical Standards and Safety
DL Services [the remediation contractor retained by Farmers
and/or Pepper to remediate the spill at the Gendron property];
Pepper [the insurance adjuster retained by Farmers to provide
adjusting services in connection with the spill];
Farmers [the Gendron's insurers]; and,
Granby [the fuel tank manufacturer].
A summary judgment motion by the defendants was dismissed,
except that the City's statutory claim under Part X of the EPA was dismissed. The court ruled that none
of Farmers, Pepper or DLS could be considered the "owner of
the pollutant" or a person with "control" of the
pollutant, because none of them had anything to do with the oil
before it was spilled.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).