The Environmental Review Tribunal (“ERT”) has before it a series of related cases about a cleanup order issued by the Ministry of the Environment and Climate Change (“MOECC”). The MOECC concluded that solvents in a roadside ditch draining into a local watercourse and Lake Erie originated at an abandoned industrial site. A long term tenant had vacated the site and the property owner listed it for sale. The property owner’s sole director lived in England and gave power of attorney to an accountant to manage the sale of the property. The accountant entered into a listing agreement with a broker in the area, who proceeded to place a lockbox on the property. As a result of the lockbox both the accountant and the broker controlled access to the property.
Under the provisions of the Environmental Protection Act, the MOECC has the authority to issue orders to anyone who owns or owned at some point in time, or has, or had management and control of a contaminated site. Surprisingly, the MOECC upon discovery of the solvents issued an investigation and cleanup order to the following:
- The former tenant;
- The former tenant’s site manager;
- The officers and directors of the former tenant (one of whom is approximately 81 years old in poor health and could be bankrupt);
- A numbered company who is the current property owner;
- The British resident who inherited the company from his recently deceased father;
- The accountant who was given power of attorney;
- The broker who listed the property for sale;
- Two individual directors of the listing broker.
The investigation and cleanup order does not allege that any of the individuals named in the order were aware of the contamination before or occurred or that any of them had acted inappropriately. Of considerable concern is that the directors of the listing broker, who failed to appeal the order, could be facing considerable liability. The other parties to the order did appeal the order and the ERT will need to determine where the liability falls in this situation. Information relating to the appeal can be found on the ERT website under the case name of McQuiston v. Ontario (MOECC).