Ontario Civil

Environmental Law

Evidence that spoke to issue of fault not relevant to decision tribunal had to make

This was appeal from Environmental Review Tribunal’s decision upholding order requiring appellant city to clean up contamination. Several hundred liters of furnace oil leaked from basement of respondent homeowners’ home. Oil leaked into municipal storm sewer system and culverts and was being discharged into lake. Respondent Ministry of the Environment was notified and ordered homeowners to remediate damage. Before remediation could be completed, homeowners’ insurance coverage reached limit and homeowners did not have financial means to continue work. City’s contaminated property still had potential to adversely impact lake. Ministry issued order requiring city to take all reasonable steps to remediate property and to prevent discharge of contaminant from property. City appealed. Tribunal granted homeowners’ motion to exclude evidence on question of who was at fault for causing spill. Tribunal dismissed city’s appeal. Appeal dismissed. Tribunal was entitled to make rulings that evidence was irrelevant. Evidence that spoke to issue of fault was not relevant to decision tribunal had to make, as it was accepted that city was innocent owner. Tribunal was not limiting city’s ability to make arguments about fact that it would be unfair to make it pay for remediation when it had done nothing to cause contamination. Tribunal chose to have discretion guided by compliance policy, which was choice it was entitled to make. Tribunal’s treatment of law was reasonable. City’s complaint that order against owner was unreasonable because it violated “polluter pays” principle should be directed to legislators who drafted Environmental Protection Act (Ont.). Tribunal found that Ministry exercised discretion in way that was consistent with purpose of Act and with compliance policy and findings were reasonable. Lawful ruling on relevance of proposed evidence could not violate principles of natural justice.

Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment)

(May 28, 2012, Ont. S.C.J. (Div. Ct.), Sachs J., File No. 421/10) 215 A.C.W.S. (3d) 125 (17 pp.).

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