Law Times

PAGE 10 Kawartha Lakes case focuses on innocent party's duties City challenges cleanup order FOCUS BY MARG. BRUINEMAN For Law Times bunal's ruling that a municipality must clean up contamination seeping onto its property from a neighbour. "The application for leave to ap- T Environmental Review Tri- s affirmation of the peal argues that the decision of the Environmental Review Tribunal and the Divisional Court creates a con- flict between three basic principles of environmental law: protection of the environment, polluter pays, and fair- ness," says Christine Carter, a partner at Papazian Heisey Myers who' for the City of Kawartha Lakes. "The position being argued by s acting the city is that there is no need to vi- olate the principles of polluter pays and fairness in order to protect the principle of protection of the environment." The Divisional Court agreed with the Environmental 'It is the first time that a clearly 100-per-cent innocent party is made to pay for a spill,' says Dianne Saxe. he City of Kawartha Lakes is challenging the Divisional Court' question that came before the court was whether it should hold the property owner responsible for the remediation when it had nothing to do with the original problem. In submissions to the Environ- she asks. "It' mental Review Tribunal, the city ar- gued it was an innocent third party leſt alone at the table but stuck with the bill in a situation that was con- trary to the polluter-pays principle. But the tribunal agreed with the ministry when it refused to allow the city to lead evidence related to the parties' fault and the reasonable- ness of any costs incurred in reme- diating the spill. Observers say the tribunal' Review Tribunal that a municipality must clean up con- tamination on its property seeping from a neighbouring basement even though it didn't cause the spill. In The Cor- poration of the City of Kawartha Lakes v. Director, Ministry of the Environment, the court decided the ministry could order neighbouring landowners to clean up contamina- tion that has affected their own property. The case stems from a furnace oil spill in the basement of a Kawartha Lakes home in 2008. The oil seeped into the city' Lake. Officials with the Ontario Ministry of Environment ordered the homeowners to clean up the spill. Aſter several months, the homeowners had exhausted their $1 million in liability coverage and efforts to clean up the mess be- yond their own property came to a halt. But the lake was still at risk. The Ministry of the Environment then ordered the s sewer system and culverts that lead to Sturgeon city to pitch in for the cleanup on municipal property in an attempt to mitigate any damage to the lake. The Protection Act is designed to be unfair in a sense because it clearly contemplates ordering innocent parties to pay for cleanups. In the Divisional Court decision, Justice Harriet Sachs clusions were a departure from ear- lier decisions in which fairness con- siderations were relevant. Acting for the owners on whose property the spill occurred, lawyer Martin Forget told the tribunal the Environmental s con- care about fair." Lawyers LLP describes the tribunal's approach as a very "If you're an innocent party, what should you do?" s part of a series of cases . . . in which they say don't Marc McAree of Willms & Shier Environmental onerous one for the landowner. He suggests it might be an issue for politicians to address. "The City of Kawartha Lakes was really held to a very should consider." sion makes total sense. Gord Miller says concerns over the environment should trump everything else. The days of the ministry covering the costs for cleanups are over due to tighter purse strings at Queen' to those involved to take care of those costs immediately, he argues. "It' wrote: "Thus, to the extent that the city was arguing that this was unfair or unreasonable, its complaint was with the legislature which had, in enacting the act, accepted that some unfairness to innocent owners was justifiable in order to protect the environment and to prevent the un- fairness that could result to others from a compromised environment." The decision was notable, says environmental lawyer Dianne Saxe. "It's certainly a link to other changes. It is the first time that a clearly 100-per-cent innocent party is made to pay for a spill. things out in the civil court doesn't wash because it can oſten be a fruitless effort. She worries the decision could result in a hesitation to A DAILY BLOGOF CANADIAN LEGAL NEWS [ WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS ] Saxe says the argument that the parties can later sort " contact the ministry for fear that the caller might have to cover the costs of the cleanup. the bill. "This is about expediting cleanup of an envi- ronmental situation." The city maintains that it has been a good environ- the absolute priority should be cleaning up the spill and doing right for the environment. Once that happens, the courts can decide who' s ultimately responsible for mental partner and points to its affiliation with the Inter- national Centre of Excellence for Water Quality, which it was involved in founding. It also refers to the 1993 report by the Canadian Council of Ministers of the En- vironment that identified the polluter-pays principle as paramount in framing policies and legislation related to contaminated site remediation. "The city' hearing is the cornerstone of our legal system," says Carter. "The city has argued that denying parties the right to s argument has been that the right to a fair raise all relevant issues surrounding contaminated site remediation policy, including the polluter-pays principle and the principles of fairness, cannot be justified solely on the basis of the importance of protecting the environment and that there were means whereby these principles could have been reconciled but unfortunately, those means weren't employed. " LT "That is perhaps an issue that the Ontario legislature For Ontario's environmental commissioner, the deci- s Park. As a result, it's up s about the environment. It's not about the doc- trine of the fairness of law," says Miller, who adds that " says McAree. high standard of responsibility for a situation in which the city had nothing to do with in the first place, November 19, 2012 • Law Times LegalFeeds-1/3-LT-Nov12-12.indd 1 POWERED BY CANADIAN LAWYER & LAW TIMES www.lawtimesnews.com 12-11-13 10:49 AM MAJOR COURT RULINGS EVENTS

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