To meet the growing housing demands, the Ministry of Environment, Conservation and Parks ("Ministry") has been undertaking extensive consultation regarding the Environment Protection Act ("EPA") and Ontario Water Resource Act ("OWRA") ("Acts") concerning dewatering construction sites. It proposes to

  1. replace the existing requirement that instructs the developers to acquire a Permit to Take Water ("PTTW") with the requirement to self-register on the Environmental Activity and Sector Registry ("EASR") under EPA for the taking of groundwater or stormwater; and
  2. increase the groundwater taking limit from a construction site from 50,000 litres to 400,000 litres per day, provided they meet all other current eligibility requirements.

The intent is to aid developers and municipalities trying to meet Ontario's Housing Supply Action Plan 2022-2023 goals.

When land is undergoing development, it is stripped of topsoil and vegetation, and its drainage patterns are altered until final site stabilization. Monitoring in the Greater Toronto Area shows that total suspended solid (TSS) concentrations in untreated runoff from construction sites can be up to thirty times greater than in stabilized residential areas.1 If the Ministry's proposed regulation is approved, the development corporations will have the opportunity to accelerate their projects; along with the responsibility to plan the release of such untreated water.

Its unplanned release could have significant consequences, such as changes to the local water balance, resulting in altered hydrological regimes for the water features the site drains. Moreover, when this sediment is released to a natural water body like a stream, lake or wetland, it will increase the turbidity of the water and settle out of suspension and become deposited on the bed. Both outcomes can harm aquatic ecosystems, as many studies have documented.2

Aquatic ecosystems in Ontario are already vulnerable to the impacts of climate change.3 Additional stressors, such as an unprecedented amount of water extraction without regulatory supervision and discharge without mandate or guideline, may accelerate already anticipated water scarcity. If water from construction sites is discharged improperly, it may lead to damage to the environment and a violation of the Acts.

Ongoing Consultation

On April 19, 2021, the Ministry amended the Acts and is now seeking public consultation for amending regulations streaming permissions for water takings for construction site dewatering activities and foundational drain,4 which ends on October 30, 2023.

The struggle to balance out the need to meet housing demands and protect our pristine water resources is not unique to Ontario. England, for instance, is facing similar issues; with its development-friendly laws, its rivers have turned murky.5 Should Ontario follow a similar approach to meet its housing demand, development corporations will likely welcome this regulation. Even though the pre-existing legal framework continues to pose certain legal responsibilities to developers, one might question whether the proposed oversight is better than approval. Besides, with enough violations, the torts may find their way back to the Ministry for regulatory negligence.

Regulatory Negligence on the Ministry

Since introducing the Crown Liability and Proceedings Act, 2019, ("CLPA"), the provincial government's potential immunity has been significantly expanded. It explicitly provides government immunity from action when undertaking policy decisions of a legislative nature, specifically regulatory decisions.

Notwithstanding this expansive immunity, in Francis v. Ontario,6 the court stated that despite clear legislative intent to limit the scope of crown liability, if the government conduct is operational based on administrative direction, expert or professional opinion, technical standards, or general standards of reasonableness, the public authority may in certain circumstances be liable for negligence.

The starting point for any consideration of the duty of care owed by a statutory regulator in Canada is the test laid out by the Supreme Court of Canada in Cooper v. Hobart.7 To establish a case, the applicant must first cross the prima facie duty of care hurdle. Whether a duty of care by the Ministry exists can be determined by asking two questions. First, is there a prima facie duty owed by the Ministry? Second, is that duty negated due to policy considerations?

Duty of care involving regulators begins with consulting the statutory scheme under which the entity operates. That will help determine whether the statute creates a private duty of care distinguishable from the government's duty to the public as a whole breach of the relevant standard of care.8 If that is established, statutory intent will be examined.

OWRA's statutory intent is "to provide for the conservation, protection and management of Ontario's waters and for their efficient and sustainable use, in order to promote Ontario's long-term environmental, social and economic well-being." The statutory intent of the PTTW program not only ensures wise water management in the province but also helps the Ministry reinforce its duty of care. They may, in certain circumstances, impose a substantial duty on the Ministry.

Once prima facie duty of care is established, the courts will examine factual causation, proximate causation (or absence of remoteness), and actual loss.


In solving the housing crisis, the Ontario government may be compromising our water resources. It remains to be seen whether, in doing so, they may be opening floodgates or trickling9 into various water-related issues and potential liability to the Ministry itself.

If accepted, the new regulations may help development corporations meet housing demands, but it will also attract the duty to discharge water responsibly. The Ministry may be liable for regulatory negligence if it fails to adequately supervise corporations, which may violate their water discharge duties.

Depending on how the Courts interpret Section 11 of CLPA, the parties may not have recourse against government actions. However, once our water resources are compromised, the environment and future generations will pay the cost, which will be more significant than any damages awarded. This proposal compels us to consider whether an ounce of liability is better than a pound of prevention.


1. Erosion and Sediment Control Guide Section 4.3

2. Ibid

3. Ontario Provincial Climate Change Impact Assessment 2023


5. England's rivers at risk as Michael Gove rips up rules on new housing

6. 2020 ONSC 1644;

7. 2001 SCC 79

8. R v Imperial Tobacco Canada Ltd, [2011] 3 SCR 45, 2011 SCC 42 at paras 43–45; Klein v American Medical Systems Inc (2006), 84 OR (3d) 217; 278 DLR (4th) 722 at paras 23–25.

9. pun intended

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