The Ontario Court of Appeal has ruled that the necessities of
spill containment and environmental protection can take precedence
over the "polluter pays" principle and the rules of
natural justice. In assessing the validity of a Director's
clean-up order for a 2009 oil spill in the City of Kawartha Lakes,
the Court deemed questions of who was at fault were
"irrelevant." The City, which bore no responsibility for
the original spill, was ordered to clean up oil that had spread
onto municipal lands and threatened to recontaminate nearby
Since then, the City of Kawartha Lakes has fought a series of
legal battles to correct what it considers "a breach of
natural justice." While the City did not dispute the
jurisdiction of the Ministry to issue such a "no fault"
Order, it argued that "the MOE must have regard to principles
of fairness, including the 'polluter pays principle', as
part of its exercise of discretion to issue such an Order."
The City maintained that the MOE should only issue a "no
fault" Order in the event that the polluter(s) cannot or will
not comply with a fault-based Order. The Appeal Court did not
agree. In its decision released May 10, 2013, Justice Goudge writes
"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. (Kawartha Lakes (City) v.
Ontario (Environment), 2013 ONCA 310)."
The Ministry had issued a preventative Order under section
157(1) of the Environmental Protection Act to ensure
prompt remediation and minimize any adverse effects. The Ministry
had already issued a remediation Order on the responsible parties,
but the spilled oil had spread onto City property. Therefore, a
second Order could rightfully be issued to the City as the party
that, "owns or has management and control of an undertaking or
a property," even though it bore no fault for the original
The Order against the City was appealed to the Environmental
Review Tribunal. However, the ERT refused to consider fault,
arguing that the overwhelming purpose of EPA s.157(1) is to protect
the environment and that, "questions of ultimate liability,
fault and other issues are generally left to arenas other than this
On May 28, 2012, the Divisional Court upheld the ruling of the
ERT, and the appellants appealed the decision to the Ontario Court
of Appeal. While the issues were winding their way through the
legal system, the City completed the clean-up of its property at an
estimated cost of $470,000. Justice Goudge of the Appeal Court
"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
In a separate case before the Ontario Superior Court, the City
is taking steps to recover its clean-up costs (under s.100.1 of the
EPA) from the oil company, the insurer, the adjuster, the
homeowners, the firm that undertook the site clean-up, the tank
manufacturer, the Technical Standards and Safety Authority and the
No one disputes the basic facts of the case
On December 18, 2008, an estimated 500 litres of fuel oil were
spilled into the basement of the home of Wayne and Liana Gendron.
By the time an insurance adjuster visited the property some 12 days
later, the oil had already migrated through the storm sewers under
the adjoining city road and into nearby Sturgeon Lake.
The Ministry of the Environment immediately issued a Provincial
Officer's Order requiring the Gendrons to prevent, eliminate
and ameliorate the adverse effects of the spill. Remediation
efforts continued "around the clock" until March 20,
2009, when the Gendrons' insurer refused to fund further
off-site work, while continuing with the on-site excavation of
contaminated soil and the complete demolition and reconstruction of
the Gendrons' home.
Although the lake pollution had already been cleaned up, the
ministry issued a preventive Order against the City, requiring it
to undertake the remediation of any oil remaining in the culverts
and sewers that could recontaminate Sturgeon Lake.
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