Several hundred litres of fuel oil leaked from the Gendrons’ basement in Kawartha Lakes, Ontario, threatening to affect adversely a nearby lake. The environment ministry ordered the Gendrons to clean up the spill, but they had limited resources and their insurance coverage ran out before remediation could be completed on city property. The ministry ordered the city to remediate and prevent further discharge, even though it had played no part in the original leakage. The ministry’s order was upheld by the Environmental Review Tribunal and, on further appeal, the Divisional Court: Corporation of the City of Kawartha Lakes v Director, Ministry of the Environment, 2012 ONSC 2708.
While an earlier case (Re 724597 Ontario Ltd (1993) 13 CELR (NS) 257 (OEAB), affd (1995) 26 OR (3d) 423 (Div Ct)) suggested that an ‘innocent’ owner could be relieved of clean-up liability on the grounds of fairness, there was no other party which could remediate this particular problem and, more to the point, prevent further contamination. The tribunal correctly avoided apportioning blame, which was more properly dealt with in other arenas (e.g. civil litigation).
The operating principle under applicable legislation is not that the polluter pays but that the owner pays.
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