How far can no-fault liability for contaminated sites go? The
Ontario Ministry of Environment and Climate Change has
issued a cleanup order to (among others) the accountant who held a
power of attorney to sell a contaminated site for an overseas
client, and the directors of a real estate company that listed the
property for sale.
In McQuiston v. Ontario (MOECC), and a series of related cases
now before the Environmental Review Tribunal, solvents were
found in a roadside ditch that drains into a local watercourse and
into Lake Erie. Ministry staff decided that the solvents came from
a disused industrial site, at 833 Helena Street in Fort Erie. A long term
tenant had vacated the site last fall and the property owner had
put it up for sale. As the property owner's sole remaining
director lived in England, he gave a power of attorney to an
Ontario accountant to manage the sale. The accountant signed a
listing agreement with a local broker, who set up a lockbox
containing a key. The accountant and the broker therefore
controlled access to the site while it was offered for sale.
In the Ministry's view, they can issue environmental orders
to anyone who owns or owned or has or had management or control to
a contaminated site. In this case, the Ministry quickly issued an
investigation and cleanup order to all of the
Carven Petrochemical Co., the former
The former tenant's former site
The officers and directors of the
1350095 Ontario Ltd. et al, the
current property owner;
a British resident who inherited this
company from his recently deceased father;
a Canadian accountant, who accepted a
power of attorney from the absentee owner to sell the
DTZ Barnicke Niagara Limited, the
listing broker, and
Two individual directors of that
Nothing in the Order suggests that any of them knew about the
contamination before it was found on the road, or that any of them
did anything illegal.
Ontario professionals who deal with real estate do not yet seem
to understand the degree of personal risk that they face when
property turns out to be contaminated. Judging from the ERT
website, the DTZ Barnicke directors did not even appeal the order
against them. They may now face enormous liability.
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It is relatively common knowledge that the government has a "duty to consult" aboriginal groups when undertaking actions or making decisions that could adversely affect aboriginal rights, aboriginal title and treaty rights.
On April 5, 2017, Environment and Climate Change Canada released the report of an external Expert Panel that was established in August 2016 to review the scope and process of federal environmental assessments under the Canadian Environmental Assessment Act, 2012.
40 to 60 years may be too old when determining whether to extend a limitation period for a negligence-based environmental contamination claim, the court recently ruled in Brookfield Residential (Alberta) LP (Carma Developers LP) v Imperial Oil Limited, 2017 ABQB 218 [Brookfield].
Our April 7 post on the report of the Expert Panel reviewing federal environmental assessment processes noted that the report contains recommendations for greater inclusion of Indigenous peoples in federal environmental assessment processes.
Over the past week, the Project Law Blog has been discussing the recommendations set out by the Expert Panel in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes.
On April 5, 2017 the Federal Minister of Environment and Climate Change received her report from an expert panel of four, comprised of three lawyers with significant environmental and aboriginal law experience as well as a retired senior executive of a resource company.
On April 5, 2017, an Expert Panel established by the Minister of Environment and Climate Change (the "Panel") released its report, Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the "Report").
Last week we summarized the recommendations set out by the Expert Panel established by the Minister of Environment and Climate Change in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes.
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