The Non-Polluter Pays: Municipal Liability For Cleaning Up Migrating Contamination

The Remediation Order

In December 2008, a residential property leaked fuel oil in the City of Kawartha Lakes (the "City"). The fuel oil sank into the ground, quickly migrated across the property onto adjoining municipal land, and from there seeped into Sturgeon Lake. Unfortunately, the $1 million dollars of insurance coverage held by the residential property owners was not enough to pay for the entire clean up. When it became clear that more funds were needed, the Ontario Ministry of the Environment ordered the City to step in to remediate the contaminated public property (the "Order"). The City appealed the Order to the Environmental Review Tribunal (the "Tribunal") on the basis that it was not a cause of the pollution. The appeal was ultimately denied. The Tribunal found that evidence of fault was not relevant when considering whether or not an Order should apply, so the City launched a judicial review of the Tribunal's decision. In the meantime, the City paid more