Dave McLaughlin

The Appellants appealed a Director's Order requiring them to take preventive measures regarding the off-site discharge of contaminated stormwater from a brownfield property.

The Appellants argued that the Director lacked jurisdiction because there was no evidence of an actual adverse effect or actual impairment of water quality.

The Tribunal dismissed the appeal, finding that the Environmental Protection Act and the Ontario Water Resources Act permit preventive measures orders where there is a potential for adverse effects or impairment.

The Tribunal found the site to be highly contaminated, with stormwater exceeding aquatic life guideline values for contaminants like hexavalent chromium by several orders of magnitude, and confirmed the Director's Order in its entirety.

The respondents sued Ontario in negligence after their dairy herd suffered health problems and low milk production, alleging that asphalt and concrete waste deposited on their farm by the Ministry of Transportation in the 1960s contaminated their well water.

The trial judge found Ontario liable and awarded damages.

On appeal, the Court of Appeal set aside the judgment and dismissed the action.

The Court held that Ontario did not breach the standard of care because the risk of harm to the cattle from the buried waste was not reasonably foreseeable in the 1960s.

Furthermore, Ontario had no statutory or common law duty to remove the waste or remediate the water, as testing showed the water met the allowable provincial drinking standards.