Claim for contamination damages against MOECC allowed to proceed

In September, 1990, an oil spill occurred on a property owned by Shell.  The spill released approximately 9,000 litres of oil, and clean-up measures were undertaken.  Nearly 23 years later, in the spring of 2013, a neighbouring landowner whose property was 100 feet away from Shell's property became aware of the spill.  The landowner had the soil and groundwater on his  own property tested for contamination;  testing confirmed that his property was contaminated with petroleum and that the source of the contamination was the Shell property.

The landowner has since sued the Ontario Ministry of the Environment (now the "MOECC") for negligence on its part in the clean-up of the original Shell spill.  The landowner alleges that the MOECC is liable for damages because it "decided to get involved in the oil spill on the Shell property, made the decision as to where the excavation of contaminated should stop, erred in failing to ensure that the contaminants were contained; as a result the plaintiff’s property became contaminated; and the plaintiff sustained damages."

In response to the lawsuit, the MOECC brought a motion to strike the claim against it on the basis that it is "plain and obvious" that there is no reasonable cause of action that can be sustained against the MOECC.  The argument by the Ministry was that it owed no duty of care to the neighbouring landowner.  The Ministry argued that it was under no duty to perform any of the tasks described in the Environmental Protection Act, as they were discretionary only.  Therefore, any failure to perform those tasks could not form the basis of a negligence claim.

In deciding the motion, Justice Ray of the Superior Court of Justice accepted that the powers of the MOECC under the Act are discretionary, but ruled that the fact that the powers were discretionary did not preclude a finding that the MOECC owed the neighbouring landowner a duty of care.  As noted by Justice Ray:

Once the [MOECC] embarks on a course of action (whether obliged to do so under a legislative scheme, or has chosen to do so under discretionary powers) the [MOECC] is obliged to carry out that course of conduct without negligence.  There is then a sufficient proximity for the basis of a private law duty of care.

The MOECC's motion to strike was dismissed and the negligence claim against the MOECC is allowed to proceed.

Read the decision at: Swaita v Her Majesty the Queen in Right of Ontario (Environment).

Neighbour loses claim for damages from biosolid application on field next door

The Plaintiff in this case sued her neighbour over concerns that her well water had been contaminated by the agricultural field application of municipal sewage waste or biosolids.  The neighbour actually leased the land to a farm operation, so he commenced third party claims against both his tenant (the farm operation) and the company that applied the biosolids.  The Plaintiff's claims were based on nuisance and negligence.

Justice Heeney of the Ontario Superior Court of Justice dismissed the Plaintiff's claim on the basis that the application of biosolids did not cause the Plaintiff's well to become contaminated.  Put another way, the Plaintiff failed to prove, on a balance of probabilities, that the application of the biosolids caused contamination of the well.  In his decision, it was not necessary for Justice Heeney to address the question of who might be liable for what.

Evidence in this case was heard over 6 days of trial, and included testimony concerning the application of the biosolids.  The application project had been approved by the Ministry of the Environment ("MOECC") following extensive soil testing and other measures.  The biosolids were to be applied to 90 acres of wheat stubble.  The Plaintiff had a 14-foot dug well just a few feet north of the southerly boundary of her property, in close proximity to the neighbouring field.  On the day that the biosolid application commenced, the Plaintiff said water from her shower was "brown and stinky", and smelled like "vomit material".

The Plaintiff's water was tested following the application of the biosolids.  There was some detection of coliform, but there had been positive readings of coliform in the well water prior to the biosolid application project.  No e.coli was detected.  The absence of e.coli in the water was, in Justice Heeney's opinion, the single most significant fact in the case.  There was opinion evidence that, if biosolids had entered the well, there would have been a very high level of e.coli in the water that would have been detectable when the water was tested.  E.coli is specifically used in water testing as "being the most accurate indicator of fecal contamination - sewage or fecal contamination".  Justice Heeney concluded that the biosolid application did not contaminate the Plaintiff's well.

Read the decision at: Marshall v. Shaw.

Grain Farmers of Ontario v. MOECC decision now available

Grain Farmers of Ontario ("GFO") has now posted a copy of the decision dismissing its challenge of Ontario's new neonicotinoid regulations at its website: 2015 ONSC 6581. GFO alleged that the regulations in their current form would cause irreparable harm to Ontario corn and grain farmers, and asked for a stay of the regulations until May, 2016 or "such time as the requirements of the Regulation can be met."  Justice S.A.Q. Akhtar of the Superior Court heard the case and declined to order a stay.  He also allowed the cross-motion by the Ontario Ministry of the Environment and Climate Change ("MOECC") ruled that GFO's application disclosed no reasonable cause of action. The application was dismissed on that basis.

On review of the GFO application, Justice Akhtar was "of the view that the application is concerned with the economic interests of the affected farmers rather than any property rights.  Prior to the Regulation, the farmers did not have an unrestricted right to use their lands as they wished but were subject to a highly regulated pesticide regime. ... If there is no constitutional challenge or allegation of ultra vires, then what is GFO's aim in making the application? ... In my view, GFO is not asking for a determination of rights that depend on the interpretation of the Regulation but a re-writing of that Regulation in a manner that would permit the effects of the Regulation to be delayed to its advantage.  It is not the job of this court to pronounce on the efficacy or wisdom of government policy absent the aforementioned constitutional or jurisdictional challenges, neither of which are made here...".

Thankfully for GFO, the MOECC did not seek any costs of the court proceeding against GFO (though GFO will most likely have incurred its own legal costs in the matter).  According to its website, GFO is evaluating its options and says that it has not conceded on this matter.

Timelines to appeal Ontario environmental orders are strict - miss the deadlines at your peril

Another decision of the Environmental Review Tribunal ("ERT") has confirmed that the process and deadlines for appealing orders made by Provincial Officers are strict; failure to comply with the process and deadlines means that the ERT has no jurisdiction to hear an appeal.

In a July, 2015 decision, the ERT dismissed a proposed appeal on the basis that the proceeding related to matters outside the jurisdiction of the ERT (Rule 119).  A Provincial Officer with the Minister of the Environment and Climate Change ("MOECC") had issued an Environmental Protection Act ("EPA") order on May 13, 2015 against the appellant.  On June 3, 2015, the appellant wrote to the ERT to appeal the order.

Under the EPA, a person may seek the review of a Provincial Officer's order to be conducted by the MOECC Director (one step above the Provincial Officer); the request must be made within seven days of the order.  It is only the decision of the Director on the review that can then be appealed if necessary to the ERT.  In the case commenced before the ERT in June, no written request directly to the Director for a Director's review had been made.  There was evidence that the appellant had made an oral request for the review to the Provincial Officer and that the appellant's lawyer had then written to the Provincial Officer to request an "indulgence with respect to the timelines in the Provincial Officer's Order."

Before the ERT, the appellant argued that it had effectively requested a Director's review of the Provincial Officer's Order (through the oral request followed by the written request for an indulgence, although both requests were made to the Provincial Officer).  Alternatively, the appellant argued that the information sheet on the review process provided by the Provincial Officer was vague and misleading and led to an assumption that, if a review was not requested within seven days, the Provincial Officer's Order would be deemed to be confirmed by the Director.  Under the EPA, if a request for a review is made and no decision is issued by the Director within seven days, the Director is deemed to have confirmed the Provincial Officer's Order (and that deemed decision can be appealed to the ERT). 

An appeal to the ERT from the Director's order or decision (deemed or otherwise) must be commenced within 15 days of the date on which the appellant was served with the Director's Order (or the date on which it was deemed to have been made).  There is provision for the ERT to extend the time for appealing, but only where, "in the Tribunal's opinion, it is just to do so because service of the order or decision on the person did not give the person notice of the order or decision."  

Where there was no Director's decision at all, there is no jurisdiction for the ERT to hear an appeal whether it was filed on time or not.  In the recent case, the ERT ruled that the written request for an indulgence cannot be considered a written confirmation of the oral request for a review that was made by the appellant to the Provincial Officer.  The EPA allows for an oral request followed-up by a written confirmation, but the written confirmation must be sent to the Director.  Further, the written follow-up in this case did not include other information required by the EPA (e.g. details of the order to be reviewed).  The ERT concluded that there was no deemed confirmation of the Provincial Officer's Order by the Director and, therefore, there was no Director's order or decision that could be appealed to the ERT.

This decision, like many before it, confirms that the environmental legislation in Ontario (the EPA and the Ontario Water Resources Act) provides very narrow windows of opportunity to appeal orders made by Provincial Officers.  If an order is issued to you and you wish to dispute it, do not delay in seeking legal advice and requesting a review in the manner required by the legislation.  Miss the deadlines and you lose your right to appeal.

Read the decision at: COX FARMS LTD. V. ONTARIO (MOECC).