Canadian National Railway Co. et al. v. Director, Environmental Protection Act (Ont.) et al., (1992) 54 O.A.C. 367 (CA)

• Judge: Catzman, Osborne and Labrosse, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 21, 1992
• Jurisdiction: Ontario
• Citations: (1992), 54 O.A.C. 367 (CA)

CNR v. Env. Protection Act Director (1992), 54 O.A.C. 367 (CA)

MLB headnote and full text

Director under the Environmental Protection Act (applicant) v. Canadian National Railway Company and CN Transactions Inc. (respondents)

Director under the Environmental Protection Act (applicant) v. Abitibi-Price Inc. (respondent)

Northern Wood Preservers Inc. (applicant) v. Director under the Environmental Protection Act (respondent)

(C.A. No. A-73/91, A-74/91)

Indexed As: Canadian National Railway Co. et al. v. Director, Environmental Protection Act (Ont.) et al.

Ontario Court of Appeal

Catzman, Osborne and Labrosse, JJ.A.

February 21, 1992.

Summary:

The Director under the Environmental Protection Act ordered Canadian National Railway and CN Transactions Inc. (CN), Northern Wood Preservers Inc. (NWP) and Abitibi-Price Inc. to jointly submit a report to the Director. The report was to address the nature and extent of contamination of the sediment on the floor of Thunder Bay Har­bour adjacent to the NWP creosote wood preserving facility, including soil and water contamination on the site as well as methods of remedying the situation. The companies appealed the order.

The Environmental Appeal Board allowed the appeals in part, to the extent of removing Abitibi from the order. The CN companies and NWP appealed their inclusion in the Director's order and the Director appealed the Board's decision removing Abitibi from the order.

The Ontario Divisional Court in a judg­ment reported 47 O.A.C. 47 allowed the appeal by the CN companies and declared that the Director's order did not apply to them. The court dismissed NWP's appeal. The court also dismissed the Director's appeal relating to Abitibi. The Director and NWP appealed.

The Ontario Court of Appeal dismissed the appeals.

Constitutional Law - Topic 3905

Paramountcy of federal statutes - Interprovincial matters - Pollution control - General - Soil and water contamination were found on the site of a creosote wood preserving facility, along with contamina­tion of the adjacent harbour floor - The Director under the Environmental Protec­tion Act, pursuant to ss. 6, 17 and 113 of the Act, ordered involved companies to file a report respecting contamination and remediation - The companies submitted that the Act and the order pertained to federal lands and shipping and, because pertinent federal legislation already existed, the Act and order were inoperative under the paramountcy doctrine - The Ontario Court of Appeal held that the order, which merely required a report, did not purport to regulate activity on federal land and was within provincial jurisdiction over pollu­tion - See paragraph 8.

Constitutional Law - Topic 5623

Federal jurisdiction - Federal debt or property - Federal public lands - Soil and water contamination were found on the site of a creosote wood preserving facility, along with contamination of the adjacent harbour floor - The Director under the Environmental Protection Act, pursuant to ss. 6, 17 and 113 of the Act, ordered involved companies to file a report re­specting contamination and remediation - The companies submitted that the Act and order were ultra vires the Province, because they dealt in part with federal public property or shipping and navigation - The Ontario Court of Appeal held that the order, which merely required a report, did not purport to regulate activity on federal land and was within provincial jurisdiction over pollution - See paragraph 8.

Constitutional Law - Topic 7300.2

Provincial jurisdiction - Property and civil rights - Regulatory statutes - Pollution control - [See Constitutional Law - Topic 5623 ].

Pollution Control - Topic 9310

Enforcement - Control or stop orders - [See Constitutional Law - Topic 3905 ].

Pollution Control - Topic 9310

Enforcement - Control or stop orders - [See Constitutional Law - Topic 5623 ].

Pollution Control - Topic 9310

Enforcement - Control or stop orders - CN owned land, which it leased to Abitibi, which operated a wood preserving facility on the site - In 1982 Abitibi leased the site and sold the buildings and structures to NWP, which continues to operate the facility - Abitibi took a mortgage back as security - Environmental contamination was discovered on and near the site - The Director under the Environmental Protec­tion Act ordered the companies to prepare a report respecting the extent of contami­nation and remediation (ss. 6, 17, 113) - The Ontario Court of Appeal affirmed the Divisional Court's ruling that the order did not apply to CN (the owner), because CN was not in occupation, nor did it have the charge, management or control of the source of the contaminant - See para­graphs 3 to 4.

Pollution Control - Topic 9310

Enforcement - Control or stop orders - CN owned land, which it leased to Abitibi, which operated a wood preserving facility on the site - In 1982 Abitibi leased the site and sold the buildings and structures to NWP, which continues to operate the facility - Abitibi took a mortgage back as security - Environmental contamination was discovered on and near the site - The Director under the Environmental Protec­tion Act ordered the companies to prepare a report respecting the extent of contami­nation and remediation (ss. 6, 17, 113) - The Ontario Court of Appeal affirmed the Divisional Court's ruling that the order did not apply to Abitibi, either as former owner or security holder, even if it did contaminate the natural environment dur­ing its prior ownership - See paragraphs 5 to 6.

Pollution Control - Topic 9310

Enforcement - Control or stop orders - CN owned land, which it leased to Abitibi, which operated a wood preserving facility on the site - In 1982 Abitibi leased the site and sold the buildings and structures to NWP, which continues to operate the facility - Abitibi took a mortgage back as security - Environmental contamination was discovered on and near the site - The Director under the Environmental Protec­tion Act ordered the companies to prepare a report respecting the extent of contami­nation and remediation (ss. 6, 17, 113) - The Ontario Court of Appeal affirmed the Divisional Court's ruling that NWP, as occupant, was responsible for its condition even if the condition resulted from a prior occupant's conduct and was therefore properly included in the Director's order - See paragraph 7.

Statutes Noticed:

Constitution Act, 1867, sect. 91(1A) [para. 8].

Environmental Protection Act, R.S.O. 1980, c. 141, sect. 6, sect. 17 [para. 2].

Counsel:

T.C. Marshall, Q.C., and Stanley Berger, for the Director under the Environmental Protection Act;

Laurence A. Pattillo and Jeffrey E. Canto-Thaler, for Abitibi-Price Inc.;

Rebecca Regenstreif, for the intervenor Attorney General of Ontario;

Nigel Campbell and Robert Fishlock, for Northern Wood Preservers Inc.;

T.G. Heintzman, Q.C., and Catherine Pat­terson, for Canadian National Railway and CN Transactions Inc.

This case was heard on February 17-19, 1992, at Toronto, Ontario, before Catzman, Osborne and Labrosse, JJ.A., of the Ontario Court of Appeal.

The following judgment was endorsed by the Court on the appeal record and was released on February 21, 1992.