Claim for contamination damages against MOECC allowed to proceed
Published in August, 2017
Perhaps hypocritical government and regulatory bureaucrats, supposedly mandated to protect the “public” interest, can no longer hide from accountability and claim that they owe no duty of care to the landowners and other citizens. Perhaps this will provide Trans-Northen Pipeline Inc. landowners in Ontario an opportunity to hold both the company, the National Energy Board and the Ontario Ministry of the Environment to account regarding historical contamination from spills along that pipeline, some almost 60 years old.
In September, 1990, an oil spill occurred on a property owned by Shell. The spill released approximately 9,000 litres of oil, and clean-up measures were undertaken. Nearly 23 years later, in the spring of 2013, a neighbouring landowner whose property was 100 feet away from Shell's property became aware of the spill. The landowner had the soil and groundwater on his own property tested for contamination; testing confirmed that his property was contaminated with petroleum and that the source of the contamination was the Shell property.
The landowner has since sued the Ontario Ministry of the Environment (now the "MOECC") for negligence on its part in the clean-up of the original Shell spill. The landowner alleges that the MOECC is liable for damages because it "decided to get involved in the oil spill on the Shell property, made the decision as to where the excavation of contaminated should stop, erred in failing to ensure that the contaminants were contained; as a result the plaintiff’s property became contaminated; and the plaintiff sustained damages."
In response to the lawsuit, the MOECC brought a motion to strike the claim against it on the basis that it is "plain and obvious" that there is no reasonable cause of action that can be sustained against the MOECC. The argument by the Ministry was that it owed no duty of care to the neighbouring landowner. The Ministry argued that it was under no duty to perform any of the tasks described in the Environmental Protection Act, as they were discretionary only. Therefore, any failure to perform those tasks could not form the basis of a negligence claim.
In deciding the motion, Justice Ray of the Superior Court of Justice accepted that the powers of the MOECC under the Act are discretionary, but ruled that the fact that the powers were discretionary did not preclude a finding that the MOECC owed the neighbouring landowner a duty of care. As noted by Justice Ray:
Once the [MOECC] embarks on a course of action (whether obliged to do so under a legislative scheme, or has chosen to do so under discretionary powers) the [MOECC] is obliged to carry out that course of conduct without negligence. There is then a sufficient proximity for the basis of a private law duty of care.
The MOECC's motion to strike was dismissed and the negligence claim against the MOECC is allowed to proceed.
Read the decision at: Swaita v Her Majesty the Queen in Right of Ontario (Environment).