Nipissing-Parry Sound Catholic District School Board v. East Ferris (Municipality), 2020 CanLII 24892

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: March 24, 2020

CASE NOS.: 17-032, 18-039

PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19

Appellant: Nipissing-Parry Sound Catholic District School Board

Respondent: Corporation of the Municipality of East Ferris

Subject of appeal: Order to pay in relation to the clean-up of a spill

Property Address/Description: 1990 Corbeil Road

Municipality: Municipality of East Ferris

Upper Tier: Nipissing District

ERT Case No.: 17-032

ERT Case Name: Nipissing-Parry Sound Catholic District School Board v. East Ferris (Municipality)

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19

Appellant: Corporation of the Municipality of East Ferris (File No. 18-039)

Appellant: Nipissing-Parry Sound Catholic District School Board (File No. 18-040)

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to perform work to clean up an oil spill

Reference No.: 0844-AWTHJ7

Property Address/Description: 1990 Corbeil Road

Municipality: Municipality of East Ferris

ERT Case No.: 18-039

ERT Case Name: East Ferris (Municipality) v. Ontario (Environment, Conservation and Parks)

APPEARANCES:

Parties

Counsel

Corporation of the Municipality of East Ferris

David N. Germain

Nipissing-Parry Sound Catholic District School Board

F.F. (Rick) Coburn

HEARD: September 19, 2019 in person

ADJUDICATOR(S):

Hugh S. Wilkins, Member

Helen Jackson, Member

DECISION

BACKGROUND

1In April 2017, the Corporation of the Municipality of East Ferris (“Municipality”) issued an order under s. 100.1 of the Environmental Protection Act (“EPA”) directing the Nipissing-Parry Sound Catholic District School Board (“School Board”) to pay $622,983.83 to the Municipality for costs and expenses that the Municipality incurred in relation to a spill of heating oil from an underground storage tank and/or a former septic tank (“Municipal Order”). The School Board appealed the Municipal Order to the Environmental Review Tribunal (“Tribunal”). The appeal was assigned Tribunal Case No. 17-032.

2The spill occurred at the former St. Theresa School at 1990 Corbeil Road in East Ferris (“Site”). The school was built in 1957. At that time, the Site was owned by the Board of Trustees of the Roman Catholic Separate School for School Section Number Four of the Township of East Ferris (“1957 School Board”).

3In 1968, the Province passed An Act to Amend the Separate Schools Act (“1968 Separate Schools Act”), which reorganized separate school boards across the province. Under the 1968 Separate Schools Act, the 1957 School Board was dissolved and a new combined separate school board was created for the area. The new board was named the Nipissing District Catholic Separate School Board and assumed ownership of the Site in 1969 (“1969 School Board”).

4The 1968 Separate Schools Act was partially amended in 1969 (“1969 Separate Schools Act”) to, among other things, exclude lands and premises already being used as schools from the valuation and adjustment processes that were applied when the 1957 School Board was dissolved.

5In 1997, the Province passed the Fewer School Boards Act, 1997, which again re-organized the separate school boards in the province. It came into effect in January 1998, creating the current School Board, which took over ownership of the Site. There is no dispute that the School Board is the successor to the 1969 School Board by operation of the Fewer School Boards Act, 1997 and its regulations.

6The contamination was discovered in 2000 when an oil tank was removed. Further contamination was found in 2012 when a septic tank was removed at the Site.

7In 2009, the Municipality acquired ownership of the Site from the School Board.

8A separate set of proceedings relating to the spill was commenced on July 13, 2018 by the Municipality and the School Board appealing Director’s Order No. 0844-AWTHJ7 issued by the Ministry of the Environment, Conservation and Parks. These appeals were assigned Tribunal Case Nos. 18-039 and 18-040.

9At a pre-hearing conference held on October 29, 2018, the Tribunal consolidated the proceedings in Tribunal Case Nos. 17-032, 18-039 and 18-040. The proceedings in Tribunal Case Nos. 18-039 and 18-040 underwent mediation. The mediation resulted in the settlement of those appeals, which involved the submission of a remedial action plan and an amendment of the Director’s Order’s requirements for monitoring.

10On September 19, 2019, the Tribunal heard submissions from the Parties on the issue of whether the 1969 School Board is the legal successor, or assignee of the 1957 School Board for the purposes of s. 91 of the EPA.

11For the reasons that follow, the Tribunal finds that the 1969 School Board is the legal successor of the 1957 School Board.

SUBMISSIONS

Municipality’s Submissions

12The Municipal Order was issued under s. 100.1(1) of the EPA. It states:

100.1(1) If a pollutant is spilled, a municipality may issue an order requiring the owner of the pollutant or the person having control of the pollutant to pay to the municipality any reasonable costs or expenses incurred by the municipality, or a local board of the municipality within the meaning of the Municipal Affairs Act, to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment.

13The Municipality submits that s. 91 of the EPA sets out the relevant definitions for terms used in the EPA’s Part X, including s. 100.1. These include definitions for the terms “owner of the pollutant” and “person having control of a pollutant”. Section 91(1) states:

91(1) In this Part,

“owner of the pollutant” means the owner of the pollutant immediately before the first discharge of the pollutant, whether into the natural environment or not, in a quantity or with a quality abnormal at the location where the discharge occurs, and “owner of a pollutant” has a corresponding meaning;

“person having control of a pollutant” means the person and the person’s employee or agent, if any, having the charge, management or control of a pollutant immediately before the first discharge of the pollutant, whether into the natural environment or not, in a quantity or with a quality abnormal at the location where the discharge occurs, and “person having control of the pollutant” has a corresponding meaning;

14The Municipality submits that s. 91(5) then states that “an owner of a pollutant” or “a person having control of a pollutant” includes a successor. Section 91(5) states:

91(5) A reference in this Part, other than in section 92, to an owner of a pollutant or a person having control of a pollutant includes a successor, assignee, executor or administrator of the owner of the pollutant or the person having control of the pollutant.

15The Municipality submits that, despite these definitions, the term “successor” itself is not defined in the EPA. However, it argues that by applying the ordinary meaning of the term, the facts in the present case demonstrate that the 1969 School Board was a successor to the 1957 School Board. It submits that, based on the Supreme Court of Canada’s decision in Bell ExpressVu Ltd. v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 (“Bell ExpressVu”), at para. 26, statutory language must be read in its entire context. It submits that s. 91(5) of the EPA must be read in its grammatical and ordinary sense harmoniously with the scheme of the EPA, its object, and the intent of the Legislature. The Municipality submits that the ordinary sense of the word “successor” is reflected in Black’s Law Dictionary (10th ed., 2014), at 1660, which defines it as “someone who succeeds to the office, rights, responsibilities or place of another; one who replaces a predecessor”. It submits that in the present case, the 1957 School Board had management and control of the Site and the 1969 School Board replaced that Board to fulfil its functions and responsibilities over an expanded jurisdiction. In other words, it succeeded to the responsibilities of the 1957 School Board.

16The Municipality argues that the Supreme Court of Canada defines a corporate “successor” as one corporation assuming the burdens and becoming vested with the rights of another corporation (see National Trust Co. v. Mead, [1990] 2 S.C.R. 410, at para. 27). It submits that this definition should extend beyond circumstances involving private corporations and be applied in the present case to statutorily created school boards.

17The Municipality submits that in Mifran Investments Ltd. v. Canadian Electroplating Ltd., 2001 CarswellOnt 3533 (Ont. S.C.J.), at para. 5, the Ontario Superior Court found that whether an entity is a successor must be determined on the facts. It submits that there does not necessarily need to be a formal merger or amalgamation for there be a successor. If the facts of the case demonstrate a taking over of responsibilities and obligations, that is sufficient. The Municipality submits that the pertinent facts in the present case are found in the statute that created the 1969 School Board. Section 80 of the 1968 Separate Schools Act directs that:

1. the 1957 School Board is to be dissolved (s. 80(1)(a));
2. all property vested in the 1957 School Board is to be vested in the 1969 School Board (s. 80(1)(b)); and,
3. debts, contracts, agreements and liabilities of the 1957 School Board, other than teacher employment contracts, are to become obligations of the 1969 School Board (s. 80(1)(c)).

18The Municipality submits that the 1969 School Board acquired the powers and obligations of the 1957 School Board. By combining several local school boards into one, the 1968 Separate Schools Act in effect merged or amalgamated those school boards.

19The Municipality submits that caselaw on similar legislation passed in 1968 affecting public secondary schools should be considered when interpreting the 1968 Separate Schools Act. It refers to Peterborough (County) Board of Education Caretakers & Maintenance Assn. v. Peterborough (County) Board of Education, 1969 CarswellOnt 505 (O.L.R.B), at para. 2, where the Ontario Labour Relations Board found that a combined public school board under the 1968 Act to Amend the Secondary Schools and Boards of Education Act was the successor to several former local public school boards. The Municipality also refers to McKenzie et al v. Peel County Board of Education, (1975), 5 OR (2d) 549 (C.A.), at para. 7, where the Ontario Court of Appeal found that a public school board that had been dissolved and reconstituted into a larger combined school board, which assumed all liabilities, except teacher employment contracts, was a successor to former local public school boards.

20Regarding the application of s. 80(1)(c) of the 1968 Separate Schools Act, which addresses the liabilities of the former school boards, the Municipality submits that this subsection only addresses the valuation and adjustment of liabilities and not their assignment. It submits that there is no provision in the 1968 Separate Schools Act for the assignment of liabilities to any entity other than the 1969 School Board. It submits that regardless of how its assets were valued, the liabilities of the 1957 School Board became the liabilities of the 1969 School Board. It submits that the issue before the Tribunal is whether the 1969 School Board is the legal successor of the 1957 School Board, not the valuation or adjustment of the liabilities that were assigned from the one to the other.

21The Municipality submits that the 1968 Separate Schools Act dissolved the 1957 School Board and, taking into account all of the facts, a successorship was created. It argues that the EPA must be interpreted broadly taking into account its remedial nature and broad purpose to provide for the protection and conservation of the natural environment. It submits that the specific aim of Part X is to implement the polluter pays principle by providing compensation for cleanup costs and incentives to prevent spills. The Municipality submits that a restrictive interpretation of the term “successor” in the application of these provisions would limit the ability of municipalities and others to recover costs. It would help polluters avoid liability through the dissolution and transfer of assets and run contrary to the intent of both Part X and the EPA. It submits that a finding that the 1969 School Board is not a successor to the 1957 School Board would extinguish responsibility for any pre-1969 spills on the Site and impact the ability of the Municipality and others affected by the spill to recover costs.

22Referring to Huang v. Fraser Hillary’s Ltd., 2017 ONSC 1500, aff’d 2018 ONCA 527, leave to SCC refused, 2019 CarswellOnt 5599 (“Huang”), the Municipality argues that Part X applies to spills both before and after Part X came into effect. It submits that it would be inconsistent if Part X provisions applied to historic spills, but not to successors under s. 91(5). The Municipality submits that if the Legislature had intended to absolve combined school boards of the liabilities of their predecessors, the 1968 Separate Schools Act would have included specific language to that effect. It submits that the dissolution of a school board does not imply that it cannot have a successor.

23In the alternative, the Municipality submits that the 1969 School Board was assigned the rights, responsibilities and liabilities of the former local school boards. Submitting that an assignee is someone to whom property rights or powers are transferred by another, it argues that s. 80 of the 1968 Separate Schools Act does this by essentially assigning all property rights and liabilities associated with each school property, including the Site, from the 1957 School Board to the 1969 School Board.

School Board’s Submissions

24The School Board submits that the 1969 School Board is not a successor or an assignee of the 1957 School Board for the purposes of Part X or s. 100.1 of the EPA. The School Board submits that s. 91 of the EPA must be interpreted within the context of Part X of the Act. It submits that Bell ExpressVu directs that the words of an Act are to read in their entire context, which requires the term “successor” to be interpreted based on the statutory context within which it is used. The School Board submits that under s. 100.1 of the EPA, the Tribunal must consider whether the person to whom the order is directed was, immediately before the first discharge of the pollutant, the pollutant’s owner or the person having charge, management, or control of it. It submits that the word “successor” must be interpreted within this context. It submits that the determination of ownership or control is a point-in-time inquiry addressing the situation immediately before the first discharge. It submits that owners or persons in control at any other time are not subject to the provisions in s. 100.1. It submits that an interpretation of “successor” which extends liability beyond this is inconsistent with legislative intent.

25The School Board refers to the Ontario Court of Appeal’s decision in Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (“Midwest Properties”), at paras. 43-47, in which the Court found that the goal of Part X is to ensure that liabilities under that Part rest on the polluter and not on all past or present owners. The School Board submits that the powers under s. 100.1 are to be directed at a specific subset of owners and persons and that to extend these powers beyond those owners and persons would be inconsistent with the Act’s intent.

26The School Board submits that the intent of the provisions in Part X is that persons affected by a spill should be entitled to compensation from the polluter directly. Past and present owners or persons having management or control of a pollutant at times other than immediately before the first discharge are not liable under these provisions. It submits that other sections of the EPA have a broader application, but not s. 100.1.

27The School Board refers to the Ontario Superior Court’s decision in Gagnon and Associates Inc. v. Genier, 2014 ONSC 3019, at para. 24. In that case, it was not known when the spill in question occurred or who was the owner at the time of the spill. The proceeding was dismissed. Similarly, in United Canadian Malt Ltd. v. Outboard Marine Corp. of Canada Ltd., 2000 CarswellOnt 1445, at para. 32, a claim brought under s. 99 of the EPA was struck where it was demonstrated that the defendant did not purchase the property in question until after the contamination had been discovered.

28The School Board submits that the ordinary definitions of the terms “successor” and “assignee” have a wide range of meanings some of which are at odds with the intent of Part X. When applying s. 100.1, terms must be interpreted within the context of Part X. The School Board submits that under s. 91(5), the terms “owner of a pollutant” and “person having control of a pollutant” refer to the pollutant immediately before the first discharge and not to the property where the spill occurs. It submits that, depending on the case, successors in title to a property and successors in title to a pollutant should not necessarily be subject to Part X.

29The School Board submits that the dissolution of the 1957 School Board and the creation of the 1969 School Board did not create a successorship or an assignment of liabilities. It submits that the 1968 Separate Schools Act created a new school board consisting of a combination of former local boards. It submits that the 1968 Separate Schools Act did not combine or reorganize the former school boards. It dissolved them.

30To reinforce this point, the School Board refers to s. 80(1) of the 1968 Separate Schools Act. It submits that under s. 80(2) and (3), the debts, contracts, agreements and liabilities of the former school boards were to become obligations of the new combined school board as determined by arbitrators. The 1969 Act amended the legislation to exclude lands and premises already being used as schools from the valuation and adjustment process. It submits that beyond that, the 1957 School Board’s assets and liabilities were to be valued and adjusted by arbitrators. The School Board submits that there is no evidence before the Tribunal on the outcomes of the arbitration process and there is no basis on which to find that the 1957 School Board’s obligations became those of the 1969 School Board. It argues that even if liabilities were transferred, property in a pollutant that had already been spilled would not have vested in the 1969 School Board. It submits that only liabilities that existed at the time were passed on.

31The School Board also submits that the dissolution of the 1957 School Board and creation of the 1969 School Board were through the operation of statute and were not voluntary transactions similar to the corporate arrangements referred to by the Municipality in its caselaw. It submits that the facts in the present case are that the 1968 and 1969 Separate Schools Acts dissolved the 1957 School Board and set out a process for addressing liabilities and did not refer to any assignment or succession of liabilities (distinguishing it from the Fewer School Boards Act, 1997, which did). It also submits that Part X of the EPA did not exist at the time of the enactment of these Acts and therefore could not create debts, contracts, agreements or liabilities for which the former boards were liable. It submits that it would be unfair to interpret the provisions in the 1968 and 1969 Separate Schools Acts to create a successor or assignee from the 1957 School Board to the 1969 School Board. It submits that if the Legislature had intended to create a successor or assignee relationship, it would have included language doing so in these Acts.

ANALYSIS AND FINDINGS

32Section 100.1(1) of the EPA provides a summary mechanism for municipalities to recover the costs of cleaning up spills. The section applies to “an owner of a pollutant” or “a person having control of a pollutant”. In the present case, the Municipality argues that the 1957 School Board was possibly an owner of the pollutant or a person having control of the pollutant emanating from the Site. It argues that the 1969 School Board was the 1957 School Board’s legal successor or assignee and therefore was exposed to the 1957 School Board’s liabilities. The School Board disagrees. It argues that the 1969 School Board was not 1957 School Board’s legal successor or assignee and was not exposed to those liabilities.

33Section 91 of the EPA sets out definitions for the interpretation and application of Part X on spills. Section 91(5) states that “an owner of a pollutant” or “a person having control of a pollutant” includes a “successor” or “assignee”; however, it does not define “successor” or “assignee”. Interpreting these terms in the EPA must be done taking into account the EPA’s intent, purpose and context, and the intent of Part X on spills. Section 3(1) of the EPA sets out the Act’s purpose, which is “to provide for the protection and conservation of the natural environment”. As noted in Canadian National Railway Company v. Ontario (Environment and Climate Change), 2017 ONERT 66327, at para. 15, the purposes of the EPA were analyzed by the Supreme Court of Canada in Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, [2013] 3 S.C.R. 323, at paras. 9 and 10:

The EPA is Ontario’s principal environmental protection statute. Its status as remedial legislation entitles it to a generous interpretation (Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 64; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 84). Moreover, as this Court recognized in Canadian Pacific, environmental protection is a complex subject matter — the environment itself and the wide range of activities which might harm it are not easily conducive to precise codification (para. 43). As a result, environmental legislation embraces an expansive approach to ensure that it can adequately respond “to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation” (para. 43). Because the legislature is pursuing the objective of environmental protection, its intended reach is wide and deep (para. 84).

The overall purpose of the EPA is set out in s. 3: “The purpose of this Act is to provide for the protection and conservation of the natural environment.” “[N]atural environment” is defined in s. 1(1) as the “air, land and water, or any combination or part thereof, of the Province of Ontario”. The EPA also protects those who use the natural environment by protecting human health, plant and animal life, and property. This purpose was aptly summarized by MacPherson J.A. in R. v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577 (C.A.), as being “to protect the natural environment and the people who live, work and play in it” (para. 49).

34The EPA is remedial legislation. As directed by the Supreme Court of Canada, it is to be given a generous interpretation in furthering its goal of environmental protection, which includes protection of human health and property. It takes an expansive approach to ensure that it can adequately respond to a wide variety of environmentally harmful situations. The intent of Part X and s. 100.1 is to achieve these goals by, among other things, providing an effective incentive for preventing spills and ensuring that the person who owned a pollutant or caused a spill pays for its cleanup.

35In the present case, there is no question that the spill occurred after the school was built in 1957 and before the spill was first discovered in 2000. Therefore, the 1957 School Board, the 1969 School Board, or the School Board was the pollutant’s owner or possibly the person having charge, management, or control of the pollutant immediately before its first discharge. It is not in dispute that the School Board is the legal successor to the 1969 School Board under the provisions of the Fewer School Boards Act, 1997. If the 1969 School Board was the legal successor of the 1957 School Board, then the School Board is also the legal successor of the 1957 School Board.

36The 1968 Separate Schools Act dissolved the 1957 School Board. Section 80(1) states:

80(1) Upon the establishment of a county or district combined separate school zone,

(a) all separate school boards that have jurisdiction in separate school zones united to form the county or district combined separate school zone are dissolved;

(b) subject to subsection 3, all property vested in such boards and situate in the county or district combined separate school board becomes vested in the county or district combined separate school board;

(c) all debts, contracts, agreements and liabilities for which such boards were liable, except employment contracts with teachers, become obligations of the county or district combined school board as determined by the arbitrators under subsections 2 and 3 […]

37As set out in the Municipality’s materials, the term “succession” is defined in Black’s Law Dictionary to mean “the act or right of legally or officially taking over a predecessor’s office, rank or duties.” In the present case, the 1969 School Board took over the 1957 School Board’s functions, responsibilities, and liabilities. In other words, it took over the 1957 School Board’s duties and supplanted it in almost all respects. The dissolution of the 1957 School Board did not end the need for the provision of Catholic education or eliminate the 1957 School Board’s liabilities. Section 86 of the 1968 Separate Schools Act states that separate school pupils under the old system had a right to continue to attend their school until his or her education in the school was completed. Sections 75(1) and (2) and 80(1)(a) state that the former school boards that had jurisdiction in separate school zones were “united” to form new combined separate school zones. The definition of “district combined separate school zone” in s. 74((1)(g) refers to the “union of separate school zones”. Section 80(1)(b) provides that property vested in the former school boards became vested in the new local combined separate school board. Section 80(1)(c) provides that all debts, contracts, agreements and liabilities for which the former boards were liable (except employment contracts with teachers) became obligations of the new local combined school board. These provisions refer to the “union” of former school boards, the transfer of assets to the new combined school boards, and the transfer of debts and liabilities to the new combined school boards. The Tribunal finds that the fact that the former school boards were “dissolved” does not mean that their functions, responsibilities, liabilities and duties ended. The language used in the 1968 and 1969 Separate Schools Acts demonstrates that the former school boards were united or amalgamated and the new combined school boards succeeded them in continuing with the functions and services that the former school boards provided. They took over their assets, responsibilities, liabilities and duties. Based on the facts in the present case, the Tribunal finds that the 1969 School Board is the successor of the 1957 School Board.

38Section 80(1)(c) of the 1968 Separate Schools Act, as amended by the 1969 Separate Schools Act, provides that liabilities were to be valued and adjusted by arbitrators under s. 80(2) and (3). Section 80(2) states:

80(2) Each county or district combined separate school board shall, on or before the 15th day of March, 1969, appoint three arbitrators who are not trustees of the board or members of a municipal council that has jurisdiction within the county or district combined separate school zone, who shall value and adjust in an equitable manner the assets and liabilities, as of the 31st day of December, 1968, except lands and premises used as schools on such 31st day of December, of the boards that, before they were dissolved under subsection 1, had jurisdiction wholly in the area in which the county or district combined separate school board has jurisdiction.

Section 80(3) similarly addresses the valuation and adjustment of debts, contracts, agreements, liabilities and teacher employment contracts relating to former boards in areas that form part of two or more combined separate school zones.

39The Tribunal agrees with the Municipality that these provisions focus on the valuation and adjustment of assets and liabilities and not their assignment or succession. No where in the 1968 Separate Schools Act or in the 1969 Separate Schools Act does it state that the arbitrators were tasked with assigning liabilities or determining succession.

40The Tribunal also finds that the fact that Part X of the EPA was not yet in force at the time of the succession of functions, responsibilities, liabilities, and duties from the 1957 School Board to the 1969 School Board does not release the 1969 School Board from any responsibility for the spill. Similar to the situation in Huang in regard to the application of s. 99(2) of the EPA, the Tribunal finds that applying s. 100.1(1) to historic spills does not constitute a retrospective application of these provisions. The aim of s. 100.1 is prospective. It provides an incentive for environmental protection and for compensation for actions taken by a municipality for cleaning up a spill caused by another entity. It aims to protect the public today from the continuing impacts of a spill. To use the language in Huang, at para. 83, these provisions create “a right to compensation to ‘ensure that parties that suffer damage through the discharge of pollutants are compensated by establishing a statutory right to recover from parties that owned or controlled the pollutant’ (Midwest Properties, at para. 45)”. It allows for compensation now and in the future for the recovery of costs incurred in the clean up of a spill.

41The School Board argues that the Tribunal should refrain from applying an “expansive interpretation” of the terms “successors” and “assignees”. It submits that these terms must be interpreted solely in the context and intent of Part X and s. 100.1. The Tribunal finds that the intent of Part X and s. 100.1 is to apply the polluter’s pay principle and provide for environmental protection. Part X should be applied in a manner that ensures that polluters pay for the harm they cause. The School Board provided no authority for the proposition that a polluter may avoid liability through dissolution to protect itself and its successors from having to pay compensation under this Part of the EPA. The language in Part X, particularly s. 91(5) and 100.1(1), demonstrates the opposite.

42The School Board argues that even if liabilities were transferred, property in a pollutant that had already been spilled would not have vested in the 1969 School Board. However, the test to be applied is whether the 1957 School Board was the owner of the pollutant immediately before its first discharge or was the person having charge, management or control of the pollutant immediately before its first discharge, not whether it or its successor continues to have ownership or control of the pollutant. Given the Tribunal’s finding that the 1969 School Board is the successor to the 1957 School Board, the 1969 School Board assumed the 1957 School Board’s liabilities, including any liability of the 1957 School Board for the spill.

43Based on the facts in this case, the Tribunal finds that the 1969 School Board is the legal successor of the 1957 School Board for the purposes of s. 91 of the EPA.

CONCLUSION

44The Tribunal finds that the 1969 School Board is the legal successor of the 1957 School Board for the purposes of s. 91 of the EPA.

45The Tribunal directs that the Parties contact the Tribunal case co-ordinator to schedule a status update telephone conference call at which procedural directions on next steps in these proceedings will be provided.

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

“Helen Jackson”

HELEN JACKSON

MEMBER

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