Divisional Court Upholds Clean‐Up Order Against Non‐Polluter

In a 3‐0 decision, the Ontario Divisional Court has upheld the reasoning of the Environmental Review Tribunal (the "ERT" or "Tribunal") that innocent landowners can be forced to clean up pollution on their property caused by others. The Ministry of the Environment ("MOE") had ordered the City of Kawartha Lakes (the "City") to clean up municipal property contaminated by a nearby homeowner's furnace oil spill when the owners were unable to complete the remediation.

In upholding the MOE clean‐up order, both the ERT and the Divisional Court stated that the purpose of the Environmental Protection Act ("EPA") was to protect the natural environment, even at the expense of burdening innocent land owners with clean‐up costs. The "fairness factors" from the 1995 Appletex decision¹ that could relieve innocent land owners of liability were not applicable when there was no other party to remove the threat to the natural environment.