CITATION: Hamilton Beach Brands Canada, Inc. v. Ministry of the Environment and Climate Change, 2018 ONSC 5010
DIVISIONAL COURT FILE NO.: 573/17
DATE: 20180904
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.O., HARVISON YOUNG, MYERS JJ.
BETWEEN:
Hamilton Beach Brands Canada Inc; Gerald Anthony DiRocco; 2441577 Ontario Inc.; and Carillion Canada Inc.
Appellants
– and –
Ministry of the Environment and Climate Change;
Respondent
– and –
Canadian Environmental Law Association; and Lake Ontario Waterkeeper
Intervenors
Clifford I. Cole, Natalie Mullins and Jessica Boily, for Hamilton Beach Brands Canada Inc.,
Rosalind Cooper, for Gerald Anthony DiRocco and 2441577 Ontario Inc.
Peter Brady and Jessica Laham, for Carillion Canada Inc.
Paul McCulloch and Jessica Rosenberg, for the Respondent
Joseph F. Castrilli and Ramani Nadarajah, for the Intervenors, Canadian Environmental Law Association and Lake Ontario Waterkeeper
HEARD at Toronto: May 23, 2018
REASONS FOR JUDGMENT
Harvison Young J.:
Introduction
[1] The Appellants challenge a decision of the Environmental Review Tribunal (“the Tribunal”) issued September 1, 2017. The issue is one of the statutory interpretation of section 18 of the Environmental Protection Act, R.S.O. 1990, c. E.19 [EPA].
[2] The decision under appeal dismissed a motion brought by the Appellants to quash an order dated April 12, 2017 issued by the Director (“Director”) of the Ministry of the Environment and Climate Change (“MOECC”). This order required the Appellants to submit and implement a workplan to investigate and delineate soil vapour, groundwater, and surface water impacts on a number of neighboring properties (“off-site properties”[^1]). The Order does not require remediation of the contamination. The extent of the contamination is not fully known (Hamilton Beach Brands Canada Inc. v Ontario (Environment and Climate Change), 14 C.E.L.R (4th) 137 at para 7 [ERT Decision]).
Background
[3] The circumstances may be briefly stated and are not in dispute.
[4] The Appellants are all owners, occupiers or former owner\occupiers[^2] of a property located at 10 McFarland Drive in Picton, Ontario (“the Property”). Between 1962 and 1975, Proctor-Silex was a tenant of the Property and operated a small-appliance manufacturing business. It was during this period that the Property was contaminated. There has been no manufacturing on the Property since 1975. It has been used as a warehousing and distribution facility since then. In 2008, Hamilton Beach Brands Canada Inc. (“HBBC”) employees noticed a substance seeping through the floor of the building on the Property. Subsequent investigations by MOECC determined that the Property and some off-site properties are contaminated with concentrations of “Contaminants of Concern” that exceed Ministry standards.
[5] In the course of the investigations and up until July 2016, the Appellants cooperated with the MOECC. In October 2014, they complied voluntarily with a draft order requiring them to develop a workplan to assess groundwater, surface water, and soil contamination on the Property and at off-site properties. Between April 2016 and July 2016, the Appellants voluntarily performed air, groundwater and soil testing on the Property and certain off-site properties with MOECC’s input and approval. They also submitted a delineation workplan on May 3, 2016 as requested by the MOECC on March 30, 2016. In July 2016, the MOECC requested that the workplan include additional delineation measures and in February 2017, the MOECC conducted indoor air monitoring at nine of the off-site properties.
[6] On April 12, 2017, the Director issued an order requiring the Appellants to delineate contamination that has migrated from the Property to off-site properties (“the Order”). The Director concluded that the Property was “a significant source of Contaminants of Concern which have migrated off the site and onto adjacent properties”. The Director stated that:
The extent of the contamination on and off the Site has not been fully delineated and in the absence of an active groundwater remediation and/or containment program at and related to the Site, and/or other appropriate remedial and/or monitoring programs, groundwater contaminated with the Contaminants of Concern may continue to migrate off the Site and onto adjacent properties where adverse effects related to soil vapour, groundwater impacts and surface water impacts may occur or have already occurred (Director’s Order No. 4606-ACHP8H dated April 12, 2017 at para 3.32 [Director’s Reasons]).
[7] In sum, there is no dispute that 10 McFarland Drive is the “source property”[^3] of contamination as a result of the former small-appliance manufacturing business that operated there and that it has migrated onto neighboring properties.
[8] This appeal turns on the interpretation of s. 18(2)(b) of the EPA and, in particular, whether the Director had jurisdiction under that section to order the Appellants to carry out delineation work beyond the boundaries of their Property.
[9] The Appellants’ position is that s. 18(2)(b), properly interpreted, cannot support an order requiring investigation, delineation, and possible remediation of properties that are not and never have been owned, managed, or controlled by the persons subject to the order. In their factum, the Appellants emphasize that it is not arguing that the Director has no jurisdiction to address off-site contamination, but submits that this is limited to s. 17 which they argue only applies to a person who causes contamination. This understanding of the two provisions, they submit, is consistent with the purpose of the EPA as set out in s. 3(1):
3(1) The purpose of this Act is to provide for the protection and conservation of the natural environment (EPA, R.S.O. 1990, c. E.19, s 3).
[10] The Respondents’ take the position that s. 18(2)(b), properly interpreted, does support the order made by the Director requiring the Appellants to conduct an investigation and delineation of the contamination on a number of off-site properties. The Respondents argue that the two provisions serve distinct and overlapping purposes.
[11] The parties rely on the modern principles of statutory interpretation in support of their positions. It provides that “… the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)).
[12] The parties each submit that their interpretation of s. 18 gives effect to the words in their grammatical and ordinary sense in the context of the EPA as a whole, and that the wording of s. 18 is unambiguous.
[13] There is also no dispute that if ambiguity remains after applying the modern principle, additional interpretive principles may apply (Rizzo & Rizzo Shoes Ltd. (Re.), 1998 837 (SCC), [1998] 1 S.C.R. 27 at para 21; Bell ExpresVu Limited Partnership v. Rex, 2002 SCC 42 at para 26; and Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ontario: LexisNexis Canada, 2014) at p 7).
The Statutory Provisions
[14] It is necessary for the purposes of this appeal to consider both ss. 17 and 18 of the EPA:
Remedial orders
17 Where any person causes or permits the discharge of a contaminant into the natural environment, so that land, water, property, animal life, plant life, or human health or safety is injured, damaged or endangered, or is likely to be injured, damaged or endangered, the Director may order the person to,
(a) repair the injury or damage;
(b) prevent the injury or damage; or
(c) where the discharge has damaged or endangered or is likely to damage or endanger existing water supplies, provide temporary or permanent alternate water supplies.
Order by Director re preventive measures
18 (1) The Director, in the circumstances mentioned in subsection (2), by a written order may require a person who owns or owned or who has or had management or control of an undertaking or property to do any one or more of the following:
To have available at all times, or during such periods of time as are specified in the order, the equipment, material and personnel specified in the order at the locations specified in the order.
To monitor and record the presence or discharge of a contaminant specified in the order and to report thereon to the Director.
To study and to report to the Director on,
i. the presence or discharge of a contaminant specified in the order,
ii. the effects of the presence or discharge of a contaminant specified in the order,
iii. measures to control the presence or discharge of a contaminant specified in the order,
iv. the natural environment into which a contaminant specified in the order may be discharged.
- To develop and implement plans to,
i. reduce the amount of a contaminant that is discharged into the natural environment
ii. prevent or reduce the risk of a spill of a pollutant within the meaning of Part X, or
iii. prevent, decrease or eliminate any adverse effects that result or may result from a spill of a pollutant within the meaning of Part X or from any other discharge of a contaminant into the natural environment, including,
A. plans to notify the Ministry, other public authorities and members of the public who may be affected by a discharge, and
B. plans to ensure that appropriate equipment, material and personnel are available to respond to a discharge. (EPA, R.S.O. 1990, c. E.19, ss. 17-18)
The Standard of Review
[15] In their factum, the Appellants submit that the standard of review is that of correctness. The Respondent submits that the standard of review is reasonableness.
[16] There can be no doubt that reasonableness is the applicable standard of review in this case. As the Respondent pointed out in their factum, the authorities relied on by the Appellants are pre-Dunsmuir and do not take the post-Dunsmuir framework into account: see Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir].
[17] Moreover, the Appellants’ position does not reflect the case law which has determined that the reasonableness standard applies to appeals from tribunal decisions interpreting the EPA: see Kawartha Lakes (City) v. Ontario (MOECC), para 51-52; Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, 2015 ONCA 269, paras 39-40, 43-44. Bryce v. Ontario (MOECC) CITE at para12, Assn. for the Protection of Amherst Island v. Windlectric Inc. 2017 ONSC 1012 at para 10.
[18] The fact that the central issue is whether s.18 permits the Director to make off-site orders does not make this a jurisdictional issue in the narrow sense. As stated by the court in (Alberta) Information and Privacy Commissioner v Alberta Teachers’ Association, 2011 SCC 61 at paras 34, 39:
The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute…True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness.
[19] Accordingly, the issue for this Court to decide is whether the Tribunal’s interpretation of the statutory provisions in question was reasonable.
[20] For the reasons which follow, I have concluded that the Tribunal’s interpretation was reasonable and that the appeal should be dismissed.
The Tribunal’s Decision
[21] On September 1, 2017 the Tribunal issued its decision dismissing the Appellants’ motion to quash an order made by the Director under s. 18(2) of the EPA. The Tribunal found that the Director has jurisdiction to make an order under s. 18(2) of the EPA requiring a person who owns or owned or who has or had management or control of an undertaking or property that is contaminated to delineate contamination that has migrated to off-site properties (ERT Decision at para 5).
[22] The Tribunal found that the heart of the jurisdictional dispute was the interpretation of s. 18(2)(b) and the phrase “adverse effect”, as this is the required ground for a Director to issue a s. 18(2)(b) order (ERT Decision at paras 55-57). The Tribunal narrowed the Appellants’ submissions into three arguments on the meaning of adverse effect:
The adverse effect must be a future event or circumstance;
The adverse effect must be related to the potential off-site migration of a contaminant that is on an orderees’ property at the time the order is made; and
The order may require work only on the source property but not off-site (ERT Decision at para 57).
[23] The Tribunal rejected the Appellants’ first submission and found that there was no express wording in s. 18 limiting the grounds for an order to only a future event or circumstance (ERT Decision at para 65). The Tribunal considered the phrase “adverse effect” in the context of the modifying words of s. 18(2)(b) in coming to the conclusion that it would be internally inconsistent to interpret the grounds of s. 18(2) more narrowly than the list of measures that can be required of a s. 18 order. The Tribunal found that this broad interpretation of s. 18(2)(b) is harmonious with the EPA’s scheme, statutory objective of environmental protection, and the intention of Parliament (ERT Decision at paras 68, 82).
[24] In response to the second submission, the Tribunal found that the adverse effect under a s. 18(2)(b) order does not have to be related to the potential off-site migration of a contaminant nor be on an orderees’ property at the time the order is made. The Tribunal explained that adverse effects are not constrained by the boundaries of the property, and requiring a contaminant to be on the property at the time the order is made runs contrary to the reality that contamination can migrate and cause ongoing effects (ERT Decision at paras 86, 90).
[25] Similarly, the Tribunal rejected the Appellants’ final submission that s. 18 empowers the Director to require orders only at the Property. The Tribunal explained that the list of requirements that can be ordered under s. 18(1) is not limited by the legal boundaries of a specific property and can include work on and off-site to address an adverse effect.
Did the Tribunal misconstrue ss. 17 and 18?
[26] There is no dispute among the parties that the principles of modern statutory interpretation are applicable here. This requires a contextual interpretation informed at the outset by the purpose of the legislative scheme, rather than an interpretation based merely on literal meaning. As Sullivan states, there is a presumption that the enacting legislature has a purpose and that “each provision contributes in some cogent way to accomplishing that purpose” (Ruth Sullivan, “Chapter 8: The Entire Context” Statutory Interpretation 2nd ed. (Irwin Law: Toronto, 2007) at p 131).
[27] In addition, Ontario’s Interpretation Act, s. 10 provides that all acts are to be understood as remedial:
- Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit [emphasis added] (Interpretation Act, RSO 1990, c.I.11, s 10).
[28] However, while the Appellants and the Respondents agree on the principles to be applied, they do not agree on the proper interpretation of s. 18. In particular, they disagree as to whether s. 18 endows the Director with jurisdiction under the EPA to issue off-site orders.
[29] At the heart of the Appellants’ submissions, as it was before the Tribunal, is that a s. 18 order is “protective and preventative” in nature, dealing with future events or circumstances in order to prevent harm, or further harm, before it occurs. It submits that the “unambiguous” wording” of s. 18 makes it clear that the Director may only make an order that is:
(a) “preventative” and responds to the risk of further or future environmental harm;
(b) limited in geographic scope. The Director’s authority to make an order against a person is conditional upon the person having or having had ownership, management or control of a property that presents a risk of environmental harm, and the order itself may only require remedial or preventive work on the Property; and
(c) limited in temporal scope. It applies only to reduce the risk of a future discharge or adverse effect resulting from contamination that may discharge or is present on the Property at the time the order is made. In other words, s. 18 is limited to risks which have not yet materialized (Appellants’ Factum at para 6).
[30] The Appellants submit that s. 18 must be read with s. 17 under which, they argue, the Director has expansive jurisdiction to issue an order against a person who “causes or permits a release of a discharge of a contaminant into the natural environment” (EPA, R.S.O. 1990, c. E.19, s 17).
[31] Section 17, the Appellants submit, permits the Director to make an order that is:
(a) “remedial” or “preventive” in nature in response to a discharge of a contaminant that has occurred;
(b) unlimited in geographic scope. The Director’s authority to make an order against a person is not conditional upon the person having or having had an interest in the property. The order may require remedial or preventive work on any property that is or may be adversely affected by the discharge; and
(c) unlimited in temporal scope. The Director’s authority may apply to a past, present and future adverse effect that has been caused by or may result from the discharge of a contaminant into the natural environment (Appellants’ Factum at para 4).
Analysis
The Temporal Scope of s. 18
[32] I will address the temporal scope question first.
[33] For the following reasons, I find that the Tribunal’s determination that s. 18 is not limited to future events or circumstances is reasonable.
[34] As the Respondents point out, the use of the word “prevent” in conjunction with “decrease”, or “eliminate” in s. 18(2)(b) does not indicate that s. 18 order is limited to future events.
[35] While the words “decrease” and “eliminate” may refer to a future event, these words can also describe an event that has already happened or is responding to an existing or ongoing circumstance. An existing or ongoing adverse effect can be decreased or eliminated so that it is not increased or exacerbated. The Tribunal found that the words appearance in both s. 18(1) and 18(2) demonstrate that a Director can make an order requiring a person to deal with existing, ongoing and future events or circumstances (ERT Decision at paras 62-63).
[36] Similarly, the Tribunal found that use of the word “may” in the phrase “may result from” in s. 18(2)(b) also does not limit the grounds for an order to a future event or circumstance (ERT Decision at para 65). The Tribunal noted that the provisions in s. 18(2) must be read in the context of s. 18 in its entirety. Given that the s. 18(2) grounds are specifically referred to in s. 18(1), the Tribunal found that it would be “internally inconsistent to interpret the grounds of s. 18 order more narrowly than the list of items that can be required in a s. 18 order” (ERT Decision at para 68).
[37] The Tribunal also explained that the use of present tense words in s. 18(1) further strengthens their position that “adverse effects” and the order under s. 18(2) includes existing, ongoing and future events or circumstances (ERT Decision at para 80).
[38] Moreover, while the existence of present and past tense wording in s. 18 contrasts the prospective wording of s. 18(2), the Tribunal found the ‘shopping list’ of items that the Director can require of an orderee under s. 18(1) is consistent with the interpretation that s. 18 can deal with existing, ongoing and future events (ERT Decision at para 71).
[39] The Tribunal considered the Appellants’ argument that that since s. 18(2), unlike s. 156.4(2) of the EPA, does not use the phrase “has resulted”, the grounds of s. 18(2) are limited to future events. It did not accept that argument. Rather, it found that the situation under s. 156 involving a provincial officer are very different from a s. 18 order. The phrase “may result” may be too vague for a situation faced by a provincial officer in a quasi-criminal context but is suitably broad for what can be required under s. 18(1) (ERT Decision at para. 66).
[40] Moreover, the Tribunal anchored its interpretation of the temporal scope of s. 18 and s. 18(2)(b) in particular in the principle of modern statutory interpretation:
A broad interpretation of the wording of s. 18(2)(b) in the context of s. 18 as a whole, such that it deals with existing, ongoing and future adverse effects, is harmonious with the scheme and object of the EPA and the intention of Parliament. The Orderees seek an interpretation that is narrow and restricted in time. The adverse effects of contamination are, generally, ongoing and of both immediate and future concern. Interpreting s. 18(2)(b) to include existing, ongoing and future adverse effects is consistent with the attributes of contamination, the scheme of the EPA, the legislative history of broadening the ambit of s. 18, and the purpose of protection and conservation of the natural environment (ERT Decision at para 82).
[41] In short, the Tribunal thoroughly considered the Appellants’ submissions as to the temporal scope, and its reasons on the issue are intelligible, transparent and well justified in terms of the language of the statute itself and the principles of modern statutory interpretation. The Tribunal’s conclusion was reasonable, and also correct.
The Geographic Scope of s. 18(2)
[42] The Appellants submit that the geographic scope of a s. 18 order is limited to the Property, that is, where the contamination originated, and not off-site properties as the Director’s impugned order purports to cover. The Appellants base their argument on the interpretation of the word “property” in s. 18(1) which refers to the property a person owns or owned or has or had management or control (ERT Decision at para 84). Additionally, they argue that the multiple references to “property” in s. 18(1) and s. 18(2) can only mean that it is referencing the same source property. This, they submit, is the plain and obvious meaning of sections s. 18(1) and s. 18(2).
[43] They further argue that the rule of implied exclusion applies in this context, citing Canadian Private Copying Collective v. Canadian Media Alliance, 2004 FCS 424 at para 96. Section 17 clearly applies to any person who is at fault and “a s. 17 order may give rise to an obligation to investigate, delineate, and remediate the environment both on the Subject Property and all other …off-site properties” (Appellants’ Factum at paras 55, 58). Thus, applying the rule of implied exclusion, s. 18 cannot apply to off-site properties.
[44] There are a number of problems with the Appellants’ argument as to the geographical scope of s. 18. First, there is no geographical constraint in the wording of s. 18(2)(b) which provides that the Director may make orders to “prevent, decrease or eliminate an adverse effect” [emphasis added]. As the Respondent submits[^4], the term “adverse effect” is broadly defined under the definitions section of the EPA and means one or more of:
1(1) In this Act,
“adverse effect” means one of more of,
a) impairment of the quality of the natural environment for any use that can be made of it,
b) injury or damage to property or to plant or animal life,
c) harm or material discomfort to any person,
d) an adverse effect on the health of any person,
e) impairment of the safety of any person,
f) rendering any property or plant or animal life unfit for human use,
g) loss of enjoyment of normal use of property, and
h) interference with the normal conduct of business (EPA, R.S.O. 1990, c. E.19, s 1(1))
[45] The clauses that refer to property are not limited to “the” property, but reference “any” property, refer to property without an article, or reference the broad term “natural environment” indicating that an adverse effect can occur on more than one property [emphasis added].
[46] Second, as the Respondent notes, s. 18(2)(b)(ii) permits the Director to make orders with respect to the “presence or discharge of a contaminant in, on or under the property”. “Contaminant” is defined as “any solid, liquid, gas, odour, heat, sound, vibration resulting directly from human activities that causes or may cause an adverse effect” (EPA, R.S.O. 1990, c. E.19, s 1(1)). As the Tribunal explains in para 90 of their written decision “contamination and adverse effects are not constrained by the boundaries of a property, either on initial discharge or because of migration” (ERT Decision at para 90). As the Tribunal found, there is nothing in s. 18 (1) that limits the Directors’ powers to issue orders to the source properties.
[47] Moreover, while the Tribunal found that references to a “property” in s. 18(2)(b) do refer to the same property as in s. 18(1), it explained that the complete phrase in s. 18(2)(b) reads “an adverse effect that may result from … the presence or discharge of a contaminant in, on or under the property” [emphasis added] (ERT Decision at para 86). This interpretation is further supported by the Tribunal’s conclusion that the list of requirements that can be ordered under s. 18(1) includes work both on and off-site.
[48] The Tribunal expressly and carefully considered the Appellants’ submissions as to the geographic scope of orders made pursuant to s. 18. It found that the Appellants’ interpretation of the word ‘property’ conflated the elements of s. 18, namely “who” the order can be issued to – which is on the basis of legal ownership under s. 18(1) – whereas “what” and “why” are based on the presence of discharge of a contaminant (ERT Decision at para 85).
[49] The Tribunal’s conclusions as to the geographic scope of s. 18 are thorough, clear and well justified. In short, they are reasonable. They would also meet the correctness standard of review.
The Purpose of the Act and s. 18 in particular
[50] The Appellants do not take issue with the general purpose of the EPA as being to “support and promote the protection, enhancement and prudent use of the environment” (EPA, R.S.O. 1990, c. E.19, s 2). Nor do they dispute its remedial nature. They do submit, however, that the Tribunal acted unreasonably and erred in failing to “construe the words of s. 18 in their entire context and in their grammatical sense as it was required to do pursuant to the principles of modern statutory interpretation” (Appellants’ Factum at para 42).
[51] In particular, the Appellants submit that the Tribunal misstated and\or misapprehended their position when the Tribunal stated that,
the Orderees’ interpretation is contrary to the reality that contamination migrates and causes ongoing adverse effects. (ERT Decision at para 86).
[52] The Appellants state that the Tribunal “articulate[d] a false dichotomy between the general purpose set out in s. 3(1) and the limitation on the Director’s power to achieve that purpose pursuant to s. 18” (Appellants’ Factum at para 46). They submit that the Tribunal unreasonably or wrongly failed to consider that “a construction of s. 18 that limits the power of the Director thereunder is not, when considered with the other powers of the Director under the EPA, inconsistent with the general purpose of s. 18” (Appellants’ Factum at 49).
[53] In essence, the Appellants’ submissions all rest on the premise that ss. 17 and 18 are entirely different, with s. 17 being fault based provision and having unlimited temporal and geographic scope, while s. 18 (and orders thereunder) having a more limited meaning. They argue that the Tribunal’s broad interpretation of s. 18 renders s. 17 redundant.
[54] I disagree. As the Respondents submit, the two sections overlap but that does not mean that either is redundant of the other because they apply to distinguishable classes of persons who may be named as orderees, and also differ as to the type of work the Director may order.
[55] Section 17 applies to the discharger or polluter (regardless of who the owner is) while s. 18 focuses on owners and those in management/control of the source property. Section 18 can be engaged even where the discharger no longer exists.
[56] The Appellants make a number of other, related submissions:
a. A statutory provision should not be read to produce absurd results;
b. The Tribunal’s decision is contrary to the purpose of the Brownfield legislation which aims to encourage the cleanup and redevelopment of contaminated land and to reduce the liability of an owner.
c. The headings in the EPA support its submissions;
[57] I will address these in turn.
Avoiding an Absurd, Unjust or Inequitable Result
[58] The Appellants assert that the Tribunal’s interpretation of s. 18 is absurd, unjust and inequitable. Once again, the merit of this submission rests on the premise that ss. 17 and 18 are mutually exclusive. As already discussed, the Tribunal reasonably rejected that submission. Given the purpose of the EPA, there is no absurdity in holding property owners and managers liable for adverse effects that originated on their property. Rather, granting the Director latitude and flexibility to issue an order to any person with a nexus to the contaminated property is reasonable and furthers the purpose of the EPA in general and s. 18 in particular.
[59] The Appellants also raise the consequentialist argument that it would be absurd and inequitable for a Director to be able to order off-site remediation. They argue that the Legislature could not have intended the “absurd result” of placing “an innocent owner of property in a worse position than a person at fault, namely, the polluter” (ERT Decision at para 30).
[60] The Tribunal acknowledged that the Appellants’ position stems from their major concern of being required to engage in costly off-site remediation by a future order. However, as the Tribunal explained, their approach would result in a restrictive interpretation of s. 18. The Tribunal states in para 94 of their written decision that:
The Director points out that the Order only requires off-site delineation and not remediation, and emphasizes that remediation is not the primary measure under s. 18, as it is under s. 17. The Director adds:
In some cases, this may mean that an owner or person with management and control of an undertaking or property issued an order under section 18 may only be required to implement mitigation or management measures, whereas a polluter issued an order under section 17 may be required to implement more exhaustive remedial measures, depending upon the specific facts in each case (ERT Decision at para 94).
[61] The Tribunal found that the Appellants’ concern regarding whether the Order is simply a first step to subsequent remediation requirements can be addressed if and when such an order is made. This was not the issue before the Tribunal (ERT Decision at para 95).
[62] The Tribunal was reasonable in finding that the extent of a Director’s authority under s. 18 are matters to be determined in the circumstances of each case and will involve the Director’s exercise of discretion under s. 18(1) (ERT Decision at para 95).
The Brownfield Regime
[63] The Appellants submit that the Tribunal’s interpretation of s. 18 is unreasonable because it runs counter Part XV.1 of the EPA, referred to as the Brownfield regime[^5]. They argue that the decision renders an owner or occupier of contaminated or formerly contaminated land equally exposed to indeterminate liability for all environmental damage, wherever it may be found (Appellants’ Factum at para 11).
[64] Through the Brownfield Statute Law Amendment Act, 2001, legislative and regulatory amendments have been put in place in a number of Acts, including the EPA, to encourage the revitalization of underutilized and contaminated lands (Brownfield Guide at 2). Requirements to remediate former contaminated sites or restore them back to environmentally accepted standards can sometimes be an illustration of the polluter-pays principle (Jamie Benidickson, “Environmental Law, 4th ed (Toronto: Irwin Law Inc (2013) at 235).
[65] I do not agree that the Tribunal’s interpretation of s. 18 is inconsistent with Part XV.1 of the Act. As the Respondent points out, Part XV.1 establishes a regime by which the Director is precluded from issuing certain enumerated orders on a go-forward basis to a property owner (among others) where the owner has demonstrated that the property meets certain environmental standards. The owner obtains the protection once a Record of Site Condition is filed under section 168.7(1) of the EPA (Respondents’ Factum at para 83).
[66] Under s. 168.7(3) of the EPA, if a contamination on the property migrates to another after a specified date, the protection afforded under (1) is extinguished. The Director can issue an order under s. 18 (amongst other sections of the EPA) to the owner or person with management and control of the property. Such protection would be unnecessary pursuant to the interpretation of s. 18 as propounded by the Appellants. In addition, s. 18 is specifically referenced in s. 168.7(3). This is further evidence that in enacting s. 18, the legislature intended that the Director be authorized to issue off-site orders.
[67] While the Brownfield regime was not explicitly examined by the Tribunal, reading the words of s. 18 in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act, the above interpretation fits comfortably with the Tribunal’s decision and the principles of justification, transparency and intelligibility.
The Headings
[68] The Appellants submit that the Tribunal “ignored” the headings of ss. 17 and 18 in support of their interpretation on the relationship between the two provisions. Section 17 has the heading of “remedial orders” (which the Appellants interpret as meaning fault-based contamination) while s. 18 is headed “order by director re preventative measures” (or, according to the Appellants’, future based contamination).
[69] I do not agree that the Tribunal ignored the headings. The Tribunal was express in finding no ambiguity in s. 18. For that reason, the Tribunal considered it unnecessary to consider the other interpretive principles advanced by the parties. It noted that the fact alone that a statutory provision is capable of more than one meaning is not for that reason alone “ambiguous” (ERT Decision at para 99).
International Law – Intervenors’ Submissions
[70] The Intervenors support the Tribunal’s decision, arguing that it is consistent with international law under which the Appellants may be polluters. They submit that the decision reflects both the “prevention” principle and the “precautionary” principle of environmental law, and that it is appropriate for the court to consider similar statutes in other provinces such as British Columbia, Alberta, and Nova Scotia.
[71] As stated above, in light of the interpretation of s. 18 and the Director’s jurisdiction based upon the modern principles of statutory interpretation, the Tribunal found it unnecessary to consider additional interpretative principles as there was no ambiguity in s. 18 (ERT Decision at para 99).
[72] This Court similarly finds it unnecessary to comment on the application of additional interpretative principles. This finding should not be taken to suggest that the Court rejects the relevance of international law as interpretive aids in appropriate cases. Rather, the Tribunal’s finding that s. 18 was not ambiguous was transparent, justified, and intelligible. Accordingly, there is no need to consider other interpretive principles.
Conclusion
[73] As I have discussed, the Tribunal carefully considered the Appellants’ interpretation of ss. 17 and 18 of the Act. It rejected their interpretation of s. 18. In doing so, it applied the principle of modern statutory interpretation and specifically found no ambiguity that would justify resorting to interpretive aids such as headings or the difference between the French and English texts. The decision is transparent, justified and intelligible and falls well within the range of possible outcomes (Dunsmuir at para 47). The Tribunal’s decision was reasonable and, in my view, correct and consistent with the modern principles of statutory interpretation.
Harvison Young J.
I agree _______________________________
Marrocco A.C.J.O.
I agree _______________________________
Myers J.
Released:
CITATION: Hamilton Beach Brands Canada, Inc. v. Ministry of the Environment and Climate Change, 2018 ONSC 5010
DIVISIONAL COURT FILE NO.: 573/17
DATE: 20180904
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.O., HARVISON YOUNG, MYERS JJ.
BETWEEN:
Hamilton Beach Brands Canada Inc; Gerald Anthony DiRocco; 2441577 Ontario Inc.; and Carillion Canada Inc
Appellants
– and –
Ministry of the Environment and Climate Change;
Respondent
– and –
Canadian Environmental Law Association; and Lake Ontario Waterkeeper
Intervenors
REASONS FOR JUDGMENT
Released: September 4, 2018
[^1]: The term “off-site properties” refers to other Picton residential, commercial, and institutional properties that are contaminated due to the migration of “Contaminants of Concern” from the Property (ERT Decision, para 3).
[^2]: The term “owners/occupiers” encompasses the 18(1) wording, “The director…by written order may require a person who owns or owned or who has or had management or control of an undertaking or property”.
[^3]: For the purposes of this decision, the definition of “source property” references/includes the term “the Property”.
[^4]: While the Tribunal did not examine the term “adverse effect” in the context of the Appellants’ argument regarding the geographic scope of s. 18(2), the Tribunal cites Castonguay Blasting Ltd v Ontario (Environment), 2013 SCC 52 on the interpretation of the phrase “adverse effect” and notes that: “to interpret ‘adverse effect’ restrictively not only reads out the plain language and obvious meaning of the definition, it narrows the scope of the reporting requirement, thereby restricting its remedial capacity and the Ministry’s ability to fulfill its statutory mandate” (ERT Decision at para 76). This excerpt supports the Tribunal’s finding on geographic scope, in that a s. 18(2) order is not limited by the boundaries of the Property.
[^5]: The Brownfield Statute Law Amendment Act, 2001 added two parts to the EPA, Part XV.1 and Part XV.2. Part XV.1 sets out requirements for assessment and cleanup of a property through a record of site condition and Part XV.2 contains provisions relating to the reduction of potential liability from orders for municipalities, secured creditor and others who may need to undertake certain investigate or other powers related to brownfield sites. (Ontario, Ministry of the Environment and Climate Change, Records of Site Condition: A Guide on Site Assessment, Cleanup of Brownfields and the Filing of Records of Site Condition, October 2004, (Ontario: Queen’s Printer) [Brownfield Guide], at 2).