Environmental Law

Environmental contamination can mean a variety of things. Often, it occurs when there are levels of contaminants present in the soil and/or groundwater of a property. These contaminants may be oils or petroleum-based products, chemicals, metals or other organic or inorganic materials that are present at levels higher than what would normally be expected. Contamination may result from historical activities on or near the property or a spill on or near the property.  Environmental contamination may also refer to the condition of a structure or building, such as the presence of mould.

What steps might be taken when contaminations is discovered can differ significantly depending on what has been found, where it has been found and what might have caused it. For example, if you have discovered a spill of contaminants on your own property, you may have an obligation to report to the Ministry of the Environment, Conservation and Parks. If you find contamination has come onto your property from a neighboring property, you maybe have recourse against your neighbour. Regardless of the circumstances, it is important that you are aware of your rights and obligations from the outset. This is where the environmental law team at Mann Lawyers can help.

Engineers play a critical role in an environmental matter. Often, it is your engineer who will discover that you have environmental contamination. A lawyer plays a different role. A Lawyer will work with your engineer to understand the environmental issue that you face, but only a lawyer can fully advise you of your rights and obligations. Our environmental law team works closely with engineers on a daily basis, and have gained a wealth of knowledge of the technical aspects of environmental issues. Our lawyers then use this knowledge to pursue the best solution for our clients, be it to advance our clients claims or defend an action or charges against our clients.

Environmental lawyers engage in numerous different aspects of environmental issues, from advising on real estate transactions and Brownfields sites to defending prosecutions by the Ministry of the Environment, Conservation and Parks to litigating claims in court. To be able to effectively operate in all of these arenas, environmental lawyers must have the skills to analyze highly technical environmental information and also knowledge of the relevant statues, regulations and legal authorities. It is with these tools that we can develop an appropriate strategy to achieve the best result possible for you.

It is important to look for an environmental lawyer with knowledge and experience in the field.  Environmental law changes frequently and significantly, and it is very important that the environmental lawyer that you choose is knowledgeable about the current state of the law.  Our environmental team has this knowledge and also a wealth of experience.  We have been involved in numerous precedent setting and groundbreaking court cases over our many years of practice in environmental law.

If you have suffered environmental contamination, the primary objective is to remediate the damage, either by having the party at fault carry out remedial work or compensate you for the cost to remediate. In addition, there may be other damages for which you may be compensated, including engineering costs and diminution in value to your property. Our environmental law team works hard to achieve the best result possible for you.

The Ministry may become involved in an environmental matter if you report contamination that you have discovered that you allege has been caused by someone else. There are many steps that the Ministry can take to assist with the resolution of an environmental matter, including requests that actions be taken, or, where required, issuing orders. However, it is important to remember that the Ministry likely cannot fully remedy someone for environmental impacts. If you are negatively impacted by contamination, you may be entitled to damages, which the Ministry cannot award to you.  It may therefore be necessary for you to start a lawsuit even though the Ministry is involved.

Just like other types of litigation, every effort is made to resolve environmental claims before trial.  We are committed to achieving the best outcome for you, which can often be done through negotiations.  These negotiations can be informal, through discussions, or formal, through mediation. There are many opportunities to attempt to resolve a case before trial.

If your property has suffered a spill or is the source of contamination that is impacting on others, it is very important that you consult with a lawyer very quickly. There may be immediate steps that you need to take, and it is important that you know your obligations. The owner of a source property may face orders as well as claims. We are here to provide you with advice and the best defence available.

Section 92(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19 provides that every person having control of a pollutant that is spilled and every person who spills or causes a spill of a pollutant has a duty to report that spill and the steps taken or intended to be taken in respect to the spill: (a) the Ministry of the Environment, Conservation and Parks; (b) the municipality; (c) where the person reporting is not the owner of the pollutant and is able to ascertain the owner, the owner of the pollutant; and (d) where the person reporting is not in control of the pollutant and is able to ascertain the person in control, the person in control of the pollutant. Failure to report is an offence under the Act.

The Ministry of the Environment, Conservation and Parks can become involved where there has been a reported spill, where there has been a report of contamination discovered or where there has been an inspection of a property or business that is subject to environmental compliance requirements. If you are contacted by the Ministry, you want to be fully informed of your rights and obligations at the earliest possible opportunity. We have considerable experience in dealing with the Ministry, and can provide you with advice and assistance with your response to the Ministry.

The Ministry serves may different functions. The Ministry is responsible for the administration of undertakings which are regulated under Ontario’s Environmental Protection Act, such as waste management sites, industries which generate hazardous wastes and industries which have the potential to negatively impact the environment. It is the Ministry who you will need to apply to and deal with to get the approvals necessary to operate these types of undertakings.

The Ministry is also responsible for enforcement of violations of the Environmental Protection Act. If you or your business are the subject of enforcement, your first contact will be by a Provincial Officer. Depending on the severity of the issue, you may or may not be faced with a Provincial Officer’s Order from the outset. Generally, at the point of first contact, the Ministry will request that steps be taken to determine the extent of the issue and to prevent adverse effects. In some circumstances, voluntary measures can be taken which are satisfactory to the Ministry and no orders will be issued. In other cases, Orders may be issued.  Orders are subject to an appeal process as set out in the Act.

There is a solution for most contaminated properties. They key is to find the solution that is best for that property at a reasonable cost. We can provide you with the advice you need to make an informed decision about the purchase of contaminated property.

There are different laws which apply depending on what lands are affected. If there is contamination present on lands owned by the federal government, the Canadian Environmental Act, S.C. 1999, c. 33, as amended, will apply as to what guidelines are applicable to determine whether contaminants are at levels that are permitted or not. The federal Ministry of the Environment and Climate Change may also investigate offences under that statute where an individual has applied for an investigation. The statute also provides for a right for an individual to bring an environmental protection action if the Minister has failed to conduct the requested investigation or if the Minister’s response was unreasonable. The action may be brought against a person who committed the offence that was alleged in the application for investigation and that caused significant harm to the environment. The statute also provides a statutory right to bring an action to any person who suffers, or is about to suffer, loss or damage as a result of conduct that contravenes any provision of the Act or the regulations and allows for the seeking of injunctive relief to cease the offensive conduct or to prevent the loss. In addition to injunctive relief, the statute provides for a statutory cause of action to seek damages for the loss. The federal statute also gives authority for the issuing of charges and other enforcement measures which may be undertaken by federally appointed Enforcement Officers. It also provides authority for federal regulations and policy on environmental matters.

In Ontario, the governing legislation is generally the provinces’ Environmental Protection Act, R.S.O. 1990, c. E. 19. It is the regulations under this statute that contain the guidelines applicable to any non-federally owned lands in the province as to the allowable limits for contaminants. It is the provincial statute under which the provincial Ministry of the Environment, Conservation and Parks is given authority to take administrative and enforcement measures in respect of lands and undertakings in Ontario. The provincial statute also provides for a statutory right of action, in s. 99, for the recovery of compensation for expenses incurred to remediate contamination from the polluter where the contamination is the result of a spill.