In August 2012, the Health Services Appeal and Review Board (HSARB),
for the first time ever, held air pollution (aside from second hand
smoke) to be a "health hazard" under Ontario's
Health Protection and Promotion Act (HPPA).
Air Pollution Health Hazard
Under section 13(1) of the Act, a public health inspector may
order any person to take action, or to refrain from taking any
action that is specified in the order in respect of a health
hazard. Under section 44(4) of the Act, the HSARB may hear an
appeal of a section 13 order and may confirm, alter or rescind the
order, and it may substitute its findings for that of the public
health inspector who made the order.
In 1353837 Ontario Inc. v. Public Health Inspector, 2012 CanLII 477030, the Perth District Health
Unit issued an order prohibiting members of the public from
entering a building located on an industrial property in Stratford,
Ontario, until certain health hazards were dealt with. The building
was formerly used to repair or construct steam and diesel engines.
Soil at the site was contaminated with over 5,000 ppm of lead and
other heavy metals. The order related only to the on-site building
which contained uncovered pipe-wrap with open or friable chrysotile
asbestos (>75% by volume), and sludge piles containing up to
18.5 mg/L of lead contamination (as compared to the O. Reg. 347 Schedule 4 leachate criteria of 5
mg/L). There was also a concern regarding lead-based paint that had
recently been sanded from the walls within the building.
The owners of the building were prohibited from going forward
with plans to host a carnival at the site until three conditions
written confirmation from the Ministry of Environment
documenting that all hazardous materials had been removed from the
building and that the company was in compliance with all existing
written confirmation from the City of Stratford documenting
that, in its assessment, the building was safe for the pubic to
laboratory analysis acceptable to the HSARB inspector of air
sampling within the building for lead and asbestos demonstrating
that the levels fell within an acceptable range.
The Board confirmed the Order prohibiting members of the public
from entering the building as well as the order for air sampling
analysis, but removed the two conditions relating to confirmation
from the MOE and the City.
With respect to whether the conditions constituted a health
hazard, the Board held that there were "reasonable and
probable grounds" for the finding that the pipe-wrap and
sludges piles were health hazards under the Act, however, not all
of the conditions imposed for lifting the order were found to be
"necessary to decrease the effect of or to eliminate the
health hazards" identified in the order.
The conditions relating to confirmation from the MOE and the
City as to removal of the hazards was deleted from the Order
because the building had been expropriated by the City, and it was
no longer in the control of the appellants. Furthermore, the
reference to "all hazardous materials" went beyond the
identified asbestos and lead, and the Board noted that the meaning
of "hazardous" under the MOE regulatory scheme may not be
the same as under HPPA. In addition, the reference to "all MOE
Orders" was found unnecessary since any such orders were not
particularized and there was no indication that any other orders
related to the identified presence of asbestos and lead.
"Another problematic aspect of both conditions is that they
require the co-operation of third parties whom the Appellants
cannot control" and with whom the appellants had been engaged
in various forms of litigation or dispute which "made
compliance potentially impossible." Finally, the Board
"[t]he effect of imposing these conditions, although
perhaps unintentional, was to use the section 13 Order to leverage
compliance with requirements imposed by other regulators. The Board
is of the view that this goes beyond the proper scope of a section
13 Order, which should impose requirements that are only necessary
to decrease the effect of or to eliminate a health hazard. Although
the Board need not make a finding respecting the jurisdiction of a
public health inspector under section 13, it is doubtful that it
extends to requiring compliance with orders issued by others
HPPA Orders in the past have dealt with environmental concerns
such as the use of contaminated well water or animal infestations, but aside from
orders relating to second-hand smoke, this
decision was the first reported decision we could find holding that
air contamination was a health hazard under the Act.
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