The Ontario Court of Appeal has upheld a decision
of the Environmental Review Tribunal, refusing to allow an innocent
landowner, City of Kawartha Lakes, to lead evidence about the
actual polluters. Everyone agreed that the City was completely
innocent of the fuel spill, which flowed onto municipal property
through no fault of their own. But they were still ordered to clean
The Court agreed that s. 157.1 of the Environmental
Protection Act permits the Ministry of the Environment to
issue no-fault orders to the owners of property requiring them to
prevent, decrease or eliminate an adverse effect on the natural
environment that may result from the presence of the contaminant on
their property. In this case, that included the City. The City
argued that, due to the "polluter pays" principle, the
order should be directed against the actual polluters, instead of
"11....the Tribunal found that evidence of who was at fault
for causing the spill should not be permitted. It held that
no evidence of the appellant's innocence was necessary, since
that was agreed, and evidence of who was at fault was not relevant
since it would be of no assistance to the Tribunal in deciding
whether the Director's order to the appellant should be revoked
or upheld. ...Evidence of others being at fault for the spill
was simply irrelevant to the Tribunal's task of determining
whether the Act's objective of environmental protection meant
that the Director's order should be upheld. The Tribunal
concluded that, despite this evidentiary ruling, in proceeding with
its appeal, the appellant was entitled to argue that its status as
an innocent owner together with the "polluter pays"
principle should relieve it of the Director's order.
 On the appeal itself, the Tribunal explicitly considered
the issue relating to the "polluter pays"
principle. It found that if environmental work was necessary,
the environmental protection objective of the Act takes precedence
over the "polluter pays" principle. It concluded
that it was not enough for the appellant to rely on its status as
an innocent victimized owner without addressing how the legislative
objective of environmental protection would be met if the
Director's order were revoked. Since the appellant
presented no evidence of an environmentally responsible solution in
the event of revocation of the Director's order, the Tribunal
dismissed its appeal."
The City argued, with considerable force, that they could not
present evidence of "an environmentally responsible solution
in the event the revocation of the Director's order",
precisely because they were prevented from showing that the actual
polluters could and should clean the contamination up.
Nevertheless, the Court agreed with the Tribunal:
" In this case, all agree that the appellant is
innocent of any fault for the spill. I agree with the
Tribunal and the Divisional Court that evidence that others were at
fault for the spill is irrelevant to whether the order against the
appellant should be revoked. That order is a no fault order.
It is not premised on a finding of fault on the part of the
appellant but on the need to serve the environmental protection
objective of the legislation.
 The tribunal had to determine whether revoking the
Director's order would serve that objective. Deciding
whether others are at fault for the spill is of no assistance in
answering that question. Evidence of the fault of others says
nothing about how the environment would be protected and the
legislative objective served if the Director's order were
revoked. Indeed, by inviting the Tribunal into a fault
finding exercise, permitting the evidence might even impede
answering the question in the timely way required by that
legislative objective. "
The City is therefore left to its existing lawsuit under section
100.1 of the Environment of Protection Act, which permits
it to seek to recover its costs from persons who had control of the
pollutant. And other innocent spill victims will now have to really
think twice before calling the Ministry of the Environment.
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