Ontario’s Court of Appeal issued its decision in the Kawartha Lakes case on May 10, 2013. The question at the heart of the appeal was whether a clean-up order against the City of Kawartha Lakes under the Environmental Protection Act should be revoked because a neighbouring landowner had caused the spill leading to the contamination of and from the City’s land. That polluter had run out of funds to implement the clean-up.

The Court of Appeal upheld the decision of the Environmental Review Tribunal and the Divisional Court that evidence of the fault of others is irrelevant to the question of whether the order against the City should be revoked.

Goudge J. A., delivering the decision of the Court, said:

[19] In this case, all agree that the appellant is innocent of any fault for the spill. I agree with the Tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked. That order is a no fault order. It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

[20] The tribunal had to determine whether revoking the Director’s order would serve that objective. Deciding whether others are at fault for the spill is of no assistance in answering that question. Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the Director’s order were revoked. Indeed, by inviting the Tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective.

We think that this asks and answers the wrong question. The Ministry of the Environment has the ability to protect the environment, albeit at the taxpayer’s cost, by carrying out the work itself under Part XIV of the Environmental Protection Act.

The real choice in Kawartha Lakes was not how best to protect the environment but whether to visit the cost of remediation on one innocent section of the public (municipal taxpayers) rather than on another (provincial taxpayers).

Once the need for environmental protection is removed from the equation, it is difficult to see the rationale for imposing liability on one innocent party rather than the other. Environmental protection should not obscure the need for a principled approach to allocation of liability  in a vacuum that was previously filled by the “polluter pays” principle and the Appeltex “fairness factors”.

To read the full decision of the Court of Appeal please click Kawartha Lakes (City) v. Ontario (Environment), 2013 ONCA 310