The Ontario Provincial Policy Statement (PPS)has recently
changed how it refers to contaminated sites. The PPS is the
official expression of the provincial government's policies on
land use planning. It applies province-wide and "provides
clear policy direction on land use planning to promote strong
communities, a strong economy, and a clean and healthy
environment." What effect will the new wording have?
Now that Section 3.2.2 of the Provincial Policy Statement has
been amended, it says:
Sites with contaminants in land or
water shall be assessed and remediated as necessary
prior to any activity on the site associated with the proposed use
such that there will be no adverse effects.
The wording in italics used to say "contaminated
sites". What is the significance of the change to the even
less clear term "sites with contaminants in land or
water"? It is a basic principle of statutory interpretation
that a change in wording is intended to convey a change in
"contaminant" means any solid, liquid, gas, odour,
heat, sound, vibration, radiation or combination of any of them
resulting directly or indirectly from human activities that causes
or may cause an adverse effect
This definition of "contaminant" can cover almost
anything, as illustrated by its application to a piece of flying
rock in R. v. Castonguay. And the new
definition does not tie the word "contaminant" to any
particular level of contaminant, such as an exceedence of
applicable generic criteria.
Still, the most plausible interpretation of the new PPS wording
is that it calls for more assessment of environmental and
health risks at sites that exceed Ministry of the Environment and Climate Change
generic criteria in soil or groundwater, even if a Record of Site
Condition is not mandatory under section 168.3.1 of the
Environmental Protection Act.
We will have to see if this is how municipalities and the
Ontario Municipal Board apply the revised section 3.2.2.
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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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