Should fairness affect the imposition of environmental liability on innocent property owners?
Kawartha Lakes v. Director began with a furnace oil spill in the basement of Wayne and Liana Gendron. Their home insurance company retained a cleanup contractor, but the spilled fuel had already flowed through the municipal sewer system and ditches into Sturgeon Lake. The Ministry of Environment ordered the homeowners to clean up the spill, but they used up their insurance funds before cleaning up municipal property, such as roads, storm drains and lakefront. The Ministry then ordered the City to take over the cleanup.
The City appealed the Order to the Environmental Review Tribunal, intending to argue that the cleanup cost should not be imposed on the City because it properly belonged to those responsible for creating the spill and for allowing it to contaminate municipal property.
On November 20 2009, the Environmental Review Tribunal barred the City from calling evidence on the liability of other parties. In essence, it ruled that allowing innocent parties to appeal orders because they don’t fairly allocate liability could make its hearings more costly and complex. The ERT will no longer follow an earlier decision on the important role of fairness, (Appletex), because this might interfere with the MOE’s ability to impose environmental cleanup requirements. Innocent parties forced to pay unfair environmental costs should seek compensation in the civil courts (often a fruitless effort), and should not expect any help from the ERT.
On December 19, the ERT agreed to book the appeal hearing for April, but meanwhile the City must complete the cleanup.