Kawartha Lakes (City) v. Gendron et al., (2012) 293 O.A.C. 148 (DC)

• Judge: Whalen, Sachs and Herman, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 28, 2012
• Jurisdiction: Ontario
• Citations: (2012), 293 O.A.C. 148 (DC);2012 ONSC 2708

Kawartha Lakes v. Gendron (2012), 293 O.A.C. 148 (DC)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JN.046

The Corporation of the City of Kawartha Lakes (appellant) v. Director, Ministry of the Environment, Wayne Gendron, Liana Gendron, Doug Thompson Fuels Ltd., D.L. Services Inc., Farmers' Mutual Insurance Company and Ian Pepper Insurance Adjusters Inc. (respondents)

(File No. 421/10; 2012 ONSC 2708)

Indexed As: Kawartha Lakes (City) v. Gendron et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Whalen, Sachs and Herman, JJ.

May 28, 2012.

Summary:

Private property was contaminated by a furnace oil leak, which spread to city property, threatening a lake. The Minister ordered the homeowners to remediate. The homeowners had limited financial resources and remediation of the city-owned property was not completed when their insurance funds ran out. The Minister then ordered the city to remediate its property. The city's appeal to the Environmental Review Tribunal was dismissed. The city appealed.

The Ontario Divisional Court, applying the reasonableness standard of review, dismissed the appeal.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - Furnace oil contaminated private property and spread to city property, threatening a lake - The homeowners complied with the Minister's remediation order, but their financial resources and insurance fund limits precluded completion of the clean up of the city property - The Minister issued a remediation order against the city, which was upheld on appeal by the Environmental Review Tribunal - The city appealed - The appeal was now moot where the city had completed the remediation work - Both the city and the Minister requested that the court exercise its discretion to hear the appeal - The Ontario Divisional Court exercised its discretion to hear the appeal, stating that: "resolution of the issues in this appeal is in the public interest. In addition, in spite of the fact that the live issue is resolved, the adversarial context persists. ... The circumstances giving rise to this appeal are likely to recur between the city (or other similarly-placed municipalities or entities) and [the Minister]. Environmental contamination of municipally owned property through no fault of the municipality is a phenomenon that could repeat itself, giving rise to the questions at stake in this appeal. We do not wish resolution of these questions to come at the expense of environmental damage by insisting that if the city wishes to appeal a determination on the issue it has raised in this appeal, it should not comply with an order to remediate." - See paragraphs 37 to 42.

Pollution Control - Topic 9310.1

Enforcement - General - Compliance orders - Furnace oil contaminated private property and spread to city property, threatening a lake - The homeowners complied with the Minister's remediation order, but their financial resources and insurance fund limits precluded completion of the clean up of the city property - The Minister issued a remediation order against the city, which was upheld on appeal by the Environmental Review Tribunal - The city appealed, arguing that the Tribunal erred in law and breached the rules of natural justice when it refused to hear evidence of fault for the oil spill and the reasonableness of the clean-up costs (i.e., these matters relating to "fairness" should have been considered in the determining whether the remediation order should have been made) - The Tribunal ruled that its mandate was to protect the environment through remediating existing damage and preventing further damage and that fault and liability were more appropriately determined later in the civil courts - The Tribunal found that "fault" was irrelevant at this stage, that it was accepted that the city was "innocent", and that the city could still argue that it was "unfair" to make it pay for the remediation when it had nothing to do with the contamination - The Ontario Divisional Court dismissed the appeal - The city was a person against whom an order could be made under the "owner pays" provisions of the Environmental Protection Act - It was not the Tribunal's role to allocate liability or make findings of fault - The Tribunal's decision that fault was irrelevant was reasonable, as was its decision not to revoke the Minister's order that the city remediate its own property - See paragraphs 56 to 81.

Pollution Control - Topic 9317

Enforcement - General - Clean-up - Cost of - Liability for - [See Pollution Control - Topic 9310.1 ].

Pollution Control - Topic 9409

Enforcement - Appeal or judicial review - Standard of review - The Minister issued a compliance order against a city to clean up an oil spill that, through no fault of the city, had spread from private lands to city lands - The Environmental Appeal Tribunal dismissed the city's appeal - The city appealed - The Ontario Divisional Court held that, given the Tribunal's specialized expertise in matters respecting discretionary decisions under its "home" statute (Environmental Protection Act), the standard of review was reasonableness - Questions involving an alleged breach of the rules of natural justice did not require a standard of review analysis, because "a procedurally unfair decision cannot stand" - See paragraphs 43 to 55.

Practice - Topic 8858

Appeals - Bar or loss of rights of appeal - Moot issues - [See Courts - Topic 2286 ].

Cases Noticed:

723597 Ontario Inc. (C.O.B. Appletex) v. Ontario Ministry of the Environment and Energy (1994), 13 C.E.L.R.(N.S.) 257 (Ont. Env. App. Bd.), affd. (1995), 26 O.R.(3d) 423 (Div. Ct.), refd to. [para. 21].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161, refd to. [para. 25].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 38].

Penetanguishene Mental Health Centre v. Ontario (2010), 260 O.A.C. 125; 2010 ONCA 197, refd to. [para. 38].

Montague et al. v. Ontario (Minister of the Environment) (2005), 196 O.A.C. 173; 12 C.E.L.R.(3d) 271 (Div. Ct.), refd to. [para. 43].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 45].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70, refd to. [para. 49].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 55].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 55].

Counsel:

Christine G. Carter, for the appellant;

Nadine Harris and Frederika Rotter, for the respondent, Director, Ministry of the Environment;

Martin P. Forget, for the respondents, Wayne and Linda Gendron.

This appeal was heard on April 26, 2012, at Toronto, Ontario, before Whalen, Sachs and Herman, JJ., of the Ontario Divisional Court.

The judgment of the Court was delivered by Sachs, J., and released on May 28, 2012.