City’s challenge of cleanup order for others’ pollution rejected

The Ontario Court of Appeal has dealt a blow to the notion that polluters are responsible for fixing their messes. The court rejected a municipality’s bid to challenge an order putting it on the hook for someone else’s spill by calling evidence that another party was at fault.

“Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the director’s order were revoked,” wrote Justice Stephen Goudge in Kawartha Lakes (City) v. Ontario (Environment) on Friday.

“Indeed, by inviting the tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective.”

Environmental lawyers have been closely watching the case since the Environmental Review Tribunal upheld the Ministry of the Environment’s order under the Environmental Protection Act directing the city to remediate and prevent any further discharge of furnace oil on its property. But the 2008 spill happened on the property of Wayne and Liana Gendron during a delivery of fuel oil. The oil migrated onto the city’s property and into Sturgeon Lake. While the ministry first issued an order to the Gendrons, they had run out of money to do offsite remediation by March 2009.

The city then unsuccessfully sought to challenge the ministry director’s order at the tribunal and later the Divisional Court. All parties agreed the city wasn’t at fault, a fact that made the case an important one for environmental lawyers accustomed to the notion of making polluters fix their messes.

“Just picking on someone innocent and making them pay for it . . . it’s scary,” says Toronto environmental lawyer Dianne Saxe, who notes the rulings make it more difficult to advise clients affected by a neighbouring spill who may now question whether they should report an event to the ministry.

Despite the concerns, the appeal court emphasized the overriding objective of protecting the environment.

“I agree with the tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked,” wrote Goudge. “That order is a no fault order. It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

“The tribunal had to determine whether revoking the director’s order would serve that objective. Deciding whether others are at fault for the spill is of no assistance in answering that question.”

Rulings throughout the case have faulted the city for blaming other parties without offering a solution for the pollution should it succeed in getting the order revoked. But for Saxe, that’s exactly what the city was trying to do in arguing there were other parties involved that could fix the problem.

“There’s no effective right of appeal,” she says in summarizing the implications of the case.

In the end, the appeal court dismissed the city’s appeal but made no order as to costs. Of course, the ruling doesn’t stop the city from trying to recover its costs through other means. As Goudge noted, the city has made use of s. 100.1 of the act that allows a party subject to a no-fault order to seek to recover its costs.

That matter involving the Gendrons, Thompson Fuels Ltd., and the Technical Standards and Safety Authority is ongoing, according to Goudge. But according to Saxe, success in recovering costs is very rare.

“Almost always they don’t get it,” she says.

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