Environmental No-Fault EPA Orders Compelling Off-Site Investigations are Alive and Well in Ontario

Article by Marc McAree, Partner and Certified Environmental Law Specialist and Anand Srivastava, Associate, with assistance of Matthew Lakatos-Hayward, Student-at-Law, Willms & Shier Environmental Lawyers LLP

Ontario’s Environmental Protection Act (“EPA”),
section 18 permits the Ministry of the Environment, Conservation and Parks
(“MECP”) Director to issue an Order to any current or former owner or occupier
of contaminated property. 

Section 18 Orders are no-fault Orders.  Section 18 Orders do not require the
orderee to have any nexus to the polluting activity aside from the orderees’
current or former ownership and/or occupation of a contaminated property.

In Hamilton Beach Brands Canada, Inc. v Ministry of
the Environment and Climate Change, [1] the the MECP Director issued
a no-fault section 18 Order to the current owner of a contaminated property,
former owners of the property, and the current tenant of the property. 

The orderees challenged the broad scope of the Director’s no-fault
section 18 Order.  The orderees argued, inter
alia, that Section 18 orders are “absurd”. 

The orderees appealed the section 18 Order to the
Environmental Review Tribunal (“ERT”).  For
purposes of the appeal only, the MECP agreed that the orderees did not cause
historic contamination at the source property.

Reading the EPA, section 18
and applying principles of statutory interpretation, the ERT dismissed the
orderees’ appeal.  The ERT confirmed that
the MECP Director has jurisdiction to issue EPA, section 18 orders where:

  1. the orderees did not own the source property at
    the time of the contaminating activity
  2. the orderees did not operate at the source
    property at the time of the contaminating activity
  3. the contamination migrated from the source property to
    down-gradient, off-site properties
  4. the Order requires investigation and delineation of
    contamination at down-gradient, off-site properties, and/or
  5. an “adverse effect” (as defined in the EPA) has
    occurred, is occurring and/or may occur in the future.

The orderees then appealed the
ERT’s decision upholding the MECP Director’s Order to the Ontario Superior
Court of Justice – Divisional Court.  The
orderees argued that the ERT’s decision was wrong and should be reversed on a standard
of correctness.

The Divisional Court disagreed
with the orderees and held that the ERT’s decision met both the standard of
reasonableness (Dunsmuir) and the
standard of correctness.

The Divisional Court concluded:

… the [ERT] carefully considered the [orderees’] interpretation … It rejected their interpretation of s. 18.  In doing so, it applied the principle of modern statutory interpretation … The [ERT] decision is transparent, justified and intelligible and falls well within the range of possible outcomes (Dunsmuir at para 47).  The Tribunal’s decision was reasonable and, in my view, correct and consistent with the modern principles of statutory interpretation.[2]

The Ontario Divisional Court upheld the MECP’s
jurisdiction to issue no-fault Orders requiring off-site investigation.  

On December 12, 2018, the Ontario Court of Appeal denied the orderees leave to appeal from the Divisional Court’s decision.

The upshot of Hamilton Beach is that Ontario Environmental Protection Act, section 18 no-fault Orders requiring off-site environmental investigation are permitted even where the Orderee did not have any association with the polluting activity aside from the Orderee’s current or former ownership and/or occupation of the contaminated source property.


Footnotes

[1]
     14 CELR (4th) 137 (Ont ERT) aff’d 2018 ONSC 5010 (Div Ct);
Decision issued September 4, 2018

[2]      2018 ONSC 5010 at para 73.


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.
© Willms & Shier Environmental Lawyers LLP


About the Authors

Marc McAree is a partner at Willms & Shier Environmental Lawyers LLP and a Certified Specialist in Environmental Law.  He provides advice and solutions to a wide range of clients that help them overcome their environmental law and litigation issues. Marc also provides mediation on environmental issues. Marc is admitted to the bars of Ontario and British Columbia. Marc may be reached at 416-862-4820 or by e-mail at mmcaree@willmsshier.com.

Anand Srivastava is an associate at Willms & Shier Environmental Lawyers LLP.  He has expertise in assisting a broad range of clients with environmental law and litigation issues.  Anand draws on his science background to facilitate practical solutions to complex environmental legal issues.  Anand is called to the bar of Ontario. He may be reached at 416-862-4829 or by e-mail at asrivastava@willmsshier.com.

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