Canada: Appeal Court Confirms That Innocent Party Must Clean Up Pollution

In a decision in Kawartha Lakes (City) v. Ontario (Environment),1 on May 10, 2013, the Ontario Court of Appeal unanimously dismissed the appeal of the City of Kawartha Lakes (the City), which sought to overturn a decision of the Divisional Court. The Divisional Court had upheld a decision of the Environmental Review Tribunal (ERT), which in turn had upheld a provincial officer's order requiring the City to clean up pollution that was migrating onto the City's property from a neighbouring contaminated property and, further, through the City's property and into Sturgeon Lake. (For more information on the Divisional Court decision, see our Osler Update  here.)

Brief Facts

Fuel oil was spilled on a residential property owned by the Gendron family in December 2008. The Gendrons began remediating their property but ran out of funds. The spilled oil migrated onto and through adjacent property owned by the City and into Sturgeon Lake. Faced with the prospect of no avenue for clean-up or environmental redress, the Ontario Ministry of the Environment (MOE) ordered the City to remediate the adverse effects of the spill by means of an order under section 157.1 of the Environmental Protection Act (the EPA). Under that power, the provincial officer "may issue an order to any person who owns or who has management or control of an undertaking or property" if the officer reasonably believes that the order requirements are necessary "to prevent or reduce the risk of a discharge of a contaminant to the natural environment from ... the property." The City appealed the MOE's order to the ERT, arguing that the spill was not its fault.

The ERT ruled on a preliminary motion, prior to deciding the merits of the City's appeal, that the City could not introduce evidence showing who was at fault for the spill because the MOE's order against the City was a "no-fault" order under s. 157.1. The ERT held that evidence of blameworthiness is relevant in some cases, but would be irrelevant to the ERT's task of determining whether the MOE order should be upheld. (For more information on the ERT's ruling on the preliminary motion, see our Osler Update  here.)

Upon hearing the appeal on its merits, the ERT concluded that it was not enough for the City to rely on its status as an innocent landowner; rather, to avoid the imposition of an order, the City had to introduce evidence showing that an alternative solution would address the environmental problem at hand, even in the absence of an order against the City. The City did not introduce any such evidence. Therefore, the ERT dismissed the City's appeal and upheld the MOE's order. The Divisional Court also dismissed the City's appeal.

Arguments Made to the Ontario Court of Appeal

The Court of Appeal quickly dismissed the City's argument that the ERT erred in law by not adequately considering the polluter-pays principle: the ERT had explicitly found that the primary objective of the EPA (i.e., the protection of the environment) takes precedence over the polluter-pays principle.

The City also argued that the ERT's order excluding the City's evidence on fault was tantamount to a denial of natural justice because it prevented the City from fully making its case that it should be relieved of liability under the polluter-pays principle. The Court of Appeal agreed with the ERT and the Divisional Court that evidence of blameworthiness was irrelevant for the purposes of upholding or revoking the MOE's order because the order in this case was a no-fault order. The Court of Appeal remarked that "by inviting the [ERT] into a fault finding exercise, permitting the evidence [of fault] might even impede answering the question [of how the environment would be protected] in the timely way required by that legislative objective."2


Several important implications may emerge from Kawartha Lakes as a result of the Appeal Court's decision to uphold the ERT's decision:

  1. Deep pockets: The MOE turned to the deepest pocket available – the City's – when the Gendrons ran out of funds to pay for remediation of its property. Despite the fact that the City was not at fault and was defenceless against the migration of contaminants caused by the negligence of an adjacent property owner, the Court sanctioned the MOE's actions by agreeing that in the case of no-fault orders, the paramount consideration is the protection of the environment, not making the polluter pay. Kawartha Lakes confirms that the MOE may turn to innocent landowners when pursuing its ultimate goal of protecting the environment, even if this leads to "unfair" outcomes against innocent parties.
  2. Heightened sensitivity to conditions on neighbouring properties: In commercial transactions whereby property will be acquired, leased or financed, purchasers, tenants and lenders all need to be more aware of environmental conditions at nearby properties. More diligence may be required to identify potential sources of contamination that are off-site, particularly on neighbouring properties that are suspected or known to be contaminated or may be subject to environmentally sensitive uses. In many circumstances, due diligence in this regard may be limited by the lack of information regarding conditions at adjacent properties. Moreover, all owners now have increased incentive to ensure that environmental conditions on neighbouring properties that might migrate onto their own property are being adequately addressed. This may lead to an increase in neighbour-on-neighbour reporting of spills.
  3. Another blow to the polluter-pays principle: The decision in Kawartha Lakes deals another blow to the polluter-pays principle. By concluding that this principle cannot trump clear legislative intent – namely, the protection of the environment, the Court has signalled that it will not give elevated effect to the concept of polluter pays. Indeed, the utility of arguing the polluter-pays principle appears to be wearing thin, given its status as not much more than a policy objective.

1   2013 ONCA 310 [Kawartha Lakes].

Kawartha Lakes at para. 20.

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

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.