Many of you will be attending the Institute of Corporate Directors’ very popular webinar this Thursday, on the Ministry of the Environment’s campaign to impose no-fault environmental liability on corporate officers and directors. I will be one of the presenters, together with Neil Baker of Baker v. Director, and Brian Rosenbaum of Aon.
The key significance of the case is the risk that corporate officers and directors may now have unlimited, permanent, personal, no fault liability for environmental contamination, with no due diligence defence. You can be subjected to such orders even if there is no link between you and the release of the contamination into the environment, and regardless of when and why the contamination occurred. Being innocent is not a defence.
The solutions?
- do not buy, invest, or serve in Ontario – a terrible solution economically and environmentally, but one that many are choosing
- lobby for policy change – the MOE chose this interpretation of the law, and could choose, instead, a different one.
- obtain Records of Site Condition
- financial assurance? (But remember General Chemical)
- directors and officers insurance and/or environmental insurance, if available.
In my view, no system of law is just when innocence and fairness are irrelevant and improper considerations. Punishing the innocent destroys trust and support for the law, and produces undesirable behaviour, not good corporate citizens. It’s time for the government of Ontario to go back to the drawing board on how to pay for contaminated sites, once the actual polluter is dead, bankrupt or otherwise gone.