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In August 2012, the Health Services Appeal and Review Board (HSARB), for the first time ever, held air pollution (aside from second hand smoke) to be a “health hazard” under Ontario’s Health Protection and Promotion Act (HPPA).

Air Pollution Health Hazard

Under section 13(1) of the Act, a public health inspector may order any person to take action, or to refrain from taking any action that is specified in the order in respect of a health hazard. Under section 44(4) of the Act, the HSARB may hear an appeal of a section 13 order and may confirm, alter or rescind the order, and it may substitute its findings for that of the public health inspector who made the order.

In 1353837 Ontario Inc. v. Public Health Inspector, 2012 CanLII 477030, the Perth District Health Unit issued an order prohibiting members of the public from entering a building located on an industrial property in Stratford, Ontario, until certain health hazards were dealt with. The building was formerly used to repair or construct steam and diesel engines. Soil at the site was contaminated with over 5,000 ppm of lead and other heavy metals. The order related only to the on-site building which contained uncovered pipe-wrap with open or friable chrysotile asbestos (>75% by volume), and sludge piles containing up to 18.5 mg/L of lead contamination (as compared to the O. Reg. 347 Schedule 4 leachate criteria of 5 mg/L). There was also a concern regarding lead-based paint that had recently been sanded from the walls within the building.

The owners of the building were prohibited from going forward with plans to host a carnival at the site until three conditions were met:

  1. written confirmation from the Ministry of Environment documenting that all hazardous materials had been removed from the building and that the company was in compliance with all existing MOE orders;
  2. written confirmation from the City of Stratford documenting that, in its assessment, the building was safe for the pubic to enter; and
  3. laboratory analysis acceptable to the HSARB inspector of air sampling within the building for lead and asbestos demonstrating that the levels fell within an acceptable range.

The Board confirmed the Order prohibiting members of the public from entering the building as well as the order for air sampling analysis, but removed the two conditions relating to confirmation from the MOE and the City.

With respect to whether the conditions constituted a health hazard, the Board held that there were “reasonable and probable grounds” for the finding that the pipe-wrap and sludges piles were health hazards under the Act, however, not all of the conditions imposed for lifting the order were found to be “necessary to decrease the effect of or to eliminate the health hazards” identified in the order.

The conditions relating to confirmation from the MOE and the City as to removal of the hazards was deleted from the Order because the building had been expropriated by the City, and it was no longer in the control of the appellants. Furthermore, the reference to “all hazardous materials” went beyond the identified asbestos and lead, and the Board noted that the meaning of “hazardous” under the MOE regulatory scheme may not be the same as under HPPA. In addition, the reference to “all MOE Orders” was found unnecessary since any such orders were not particularized and there was no indication that any other orders related to the identified presence of asbestos and lead. “Another problematic aspect of both conditions is that they require the co-operation of third parties whom the Appellants cannot control” and with whom the appellants had been engaged in various forms of litigation or dispute which “made compliance potentially impossible.” Finally, the Board noted that:

“[t]he effect of imposing these conditions, although perhaps unintentional, was to use the section 13 Order to leverage compliance with requirements imposed by other regulators. The Board is of the view that this goes beyond the proper scope of a section 13 Order, which should impose requirements that are only necessary to decrease the effect of or to eliminate a health hazard. Although the Board need not make a finding respecting the jurisdiction of a public health inspector under section 13, it is doubtful that it extends to requiring compliance with orders issued by others statutory authorities.”

HPPA Orders in the past have dealt with environmental concerns such as the use of contaminated well water or animal infestations, but aside from orders relating to second-hand smoke, this decision was the first reported decision we could find holding that air contamination was a health hazard under the Act.

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