F. Environmental Remediation Orders

• Author: Roderick J. Wood
• Profession: Faculty of Law. University of Alberta
• Pages: 141-141

Page 141

Provincial and federal environmental protection statutes generally create liability rules rather than priority rules. They provide that a person who is in control of premises is liable for the costs of environmental remediation.¹²⁰The BIA alters this by significantly limiting the liability that would otherwise face a trustee in bankruptcy. The trustee is not liable for environmental damage that occurred prior to the trustee’s appointment and is not liable for post-appointment damage unless it occurred as a result of the trustee’s gross negligence or wilful misconduct.¹²¹

In place of a liability rule, the BIA creates a new proprietary right in favour of the government in respect of the costs of remediation of the environmentally damaged property. The remediation costs are secured by a security interest on the real property affected by the environmental condition as well as on any contiguous real property.¹²²The security interest is given superpriority status over any other claim, right, charge, or security against the property.

[120] See, for example, Environmental Protection Act, R.S.O. 1990, c. E.19, s. 1 "person responsible" and s. 124.

[121] BIA, above note 3, s. 14.06(2).

[122] Ibid., s. 14.06(7).