Kawartha Lakes (City) v. Gendron et al., 2013 ONCA 310

• Judge: Rosenberg, Goudge and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 10, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 310;(2013), 307 O.A.C. 264 (CA)

Kawartha Lakes v. Gendron (2013), 307 O.A.C. 264 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MY.019

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)

(C56382; 2013 ONCA 310)

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

Ontario Court of Appeal

Rosenberg, Goudge and Tulloch, JJ.A.

May 10, 2013.

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, in a judgment reported (2012), 293 O.A.C. 148, dismissed the appeal. The city appealed.

The Ontario Court of Appeal dismissed the appeal.

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 Divisional Court dismissed the appeal - The city was a person against whom an order could be made under the no fault "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 - The Ontario Court of Appeal agreed.

Pollution Control - Topic 9317

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

Counsel:

Cliff Cole and Jennifer Danahy, for the appellant;

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

Martin Forget, for the respondents, Wayne Gendron and Liana Gendron.

This appeal was heard on May 1, 2013, before Rosenberg, Goudge and Tulloch, JJ.A., of the Ontario Court of Appeal.

On May 10, 2013, Goudge, J.A., released the following judgment for the Court of Appeal.