Canada: Rubin v MOECC: Balancing Environmental Protection And Financial Hardship

Last Updated: December 8 2016
Article by Julie Abouchar and Matthew Gardner

 When the Ontario Ministry of the Environment and Climate Change (MOECC) orders businesses or individuals to complete work required to protect the environment, the costs to comply can lead to financial hardship for those ordered. If those ordered cannot afford to complete the work, leaving a site partially remediated, the MOECC may be forced to complete the work itself at taxpayers' expense.

How should Ontario's Environmental Review Tribunal balance environmental protection and financial hardship?

The Tribunal had to strike this balance in Rubin v Ontario (Environment and Climate Change).1 The Tribunal found that ordering individuals to complete the work, where those individuals cannot afford to complete the work, does not benefit the environment. In these circumstances, the Tribunal can make recommendations to the MOECC Director to look to others, not included in the Director's Order, to protect the natural environment.2

Background

From the late 1950s to the 1990s, Harry Rubin & Son Ltd. operated a metal recycling business in St. Catharines, Ontario. In the 1990s, under MOECC Director's Instructions, the company had PCB and other waste transported to and stored at its property in Thorold, Ontario (the "Property").

In 2012, the MOECC Director alleged that Allan, Howard and Ronald Rubin (the "Rubins") had management and control of the waste stored at the Property and ordered the Rubins to remove and dispose of waste stored at the Property, including PCB waste, and provide financial assurance. The MOECC Director relied on the fact that the Rubins were former directors and officers of the company in issuing the Director's Order. The MOECC Director also named the company, now owned by a Trust, and the Trustee of the Trust. The Rubins appealed the Director's Order to the Tribunal. The company and Trustee, who vacated her position, did not appeal.

The Rubins issued a Notice of Allegation concurrently with their appeal. The Tribunal's "Rules of Practice and Practice Directions" require Notices of Allegation where a party asks the Tribunal to provide relief in an appeal because of the acts or omissions of another party.3 The Rubins produced information about the origins of the waste and requested that Horizon Utilities Corporation and the City of St. Catharines be included in the Director's Order and that they undertake the waste removal work.

Implications for Future Cases

The Rubin decision has implications for future Directors' Orders in three ways.

Use of Notices of Allegation

The Tribunal dismissed the Rubins' Notice of Allegation. However, the Tribunal did not close the door to the Rubins' request that the Tribunal consider the potential role of third parties:

"Arguably, from a relief sought perspective, the Tribunal is not really "dismissing" any part of the proceeding. It is simply providing direction to the parties as to what type of evidence is relevant to the issues the Tribunal needs to decide."4

The Tribunal found the Rubins' Notice of Allegation was unnecessary because the Tribunal did not need to conduct a lengthy hearing into third party conduct in order to recommend that the Director look to other parties to address the environmental problem. The Tribunal held that it did not need to know specifics about third party conduct to make this recommendation.5

Tribunal's Powers in Relation to Third Parties.

The Tribunal provided guidance on the scope of the Tribunal's review powers. While the Tribunal can recommend that the MOECC Director consider including a third party in the Director's Order, the Tribunal will not step into the shoes of the MOECC to investigate other potential orderees and order them. The Tribunal found that "allocating liability of current and potential orderees is not something the Legislature has asked the Tribunal to focus on."6

Fairness Re-imagined

Perhaps most noteworthy, the Tribunal suggested in Rubin that striking a balance between the financial hardship of orderees and environmental protection should be achieved, where possible.

The Tribunal cited Kawartha Lakes (City) v Ontario (Director, Ministry of the Environment), in which the Ontario Court of Appeal held that an innocent landowner can be ordered to undertake environmental work even when others are at fault.7 In Rubin, the Tribunal reaffirmed that the "key question" for the Tribunal was not about fairness or fault.8 The Tribunal's focus is, instead, about whether the Order furthers environmental protection objectives.

In Rubin, the Tribunal viewed financial hardship of the Rubins (who could not afford to complete the entirety of the work ordered) not as an issue of fairness, but rather a practical issue of "completing the work".9 The Tribunal took a pragmatic perspective and held that the natural environmental cannot be protected if the MOECC Director orders a party who does not have the financial capacity to complete the work.

The Rubin case was settled before proceeding to a full hearing. In the settlement, the Rubins were removed from the Order. The MOECC Director issued a new Order to the Rubins with a narrower scope that will not result in undue financial hardship to the Rubins.

The Rubin decision may open the door to appeals of orders based on undue financial hardship where there is an alternative solution that can achieve environmental protection.

Footnotes

1 2016 CanLII 24523 (ON ERT) [Rubin].

2 Ibid at paras 45, 76.

3 Environment and Land Tribunals Ontario, "Rules of Practice and Practice Directions of the Environmental Review Tribunal," September 12, 2016, Rule 84.

4 Rubin, supra 1 at para 95.

5 Ibid at para 45.

6 Ibid at para 53.

7 2013 ONCA 310, 74 CELR (3d).

8 Rubin, supra note 1 at para 91.

9 Ibid at para 45, 50, 77, 84

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 Mondaq.com.

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

Authors
Julie Abouchar
Matthew Gardner
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions