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ENVIRONMENTAL LAW: Your responsibility and your neighbor’s

How clean is green

The proverbial question relating to environmental contamination is the extent of the clean-up that needs to be undertaken. Considerable time and resources have been spent by governments to develop standards or criteria for clean-up showing what the government considers as unacceptable levels of contaminants in the environment. There are also methods for risk assessments to determine the acceptable levels of contaminants based on receptors and the pathways for such contaminants.

Having regard to the above, the logical answer is that a clean-up to the levels mandated by the government protocols that is protective of  human health and the environment and could be regarded as completely and adequately  cleaned-up.

Enter Tridan and the Historic Tort

That certainty was shaken by the decision from the Ontario Court of Appeal in the case of Tridan Developments Ltd. v. Shell Canada Products Ltd. The verdict shows that such a clean-up would, under certain circumstances, not be sufficient from the perspective of a private landowner whose property has been contaminated from the activities of others.

Background: Shell operated a gas station in Ottawa, where approximately 9,000 litres of gasoline was spilled into the soil. The adjacent property owner, Tridan, discovered contamination beneath its property adjoining the Shell property and commenced an action seeking extensive damages as a result of the contamination which extended to a depth of approximately 12 feet below ground on the Tridan property. Tridan complained that Shell was obliged to pay whatever costs were necessary to clean up the Tridan property to a pristine state, the condition prevailing at the Tridan property before the spill. Shell maintained that there was no such need because over time, natural processes would occur in the soil to biodegrade the contamination, and adding that the contaminated soil was 3-5 metres below ground, had no impact on the building or the Tridan property, was not impairing the use Tridan made of the land and for which it had been used since the contamination occurred, and did not pose a risk to the health and safety of any of the occupants at the property or plant life. Shell concluded that the Ministry of Environment (MOE) guideline standards at the time of clean-up should apply.

The trial court held that Tridan was entitled to have its property put back to the same condition that existed before the spill, namely, a pristine state. The Court of Appeal supported it, stating:

“The trial judge might have relied upon those expert witnesses supporting the MOE guidelines as a reasonable measure of reparation and thus the damages suffered. This is a commercial property on a busy thoroughfare and unlikely to ever be a site for residential use. It might be concluded that in a practical sense Tridan is not likely to need or want to clean its soil at depth of every particle of pollutant. However, in the circumstances of this case I cannot say the trial judge erred in deciding that Tridan was entitled to reparation to a pristine state. Where a product that may cause mischief escapes to a neighbour’s property there is responsibility “for all the damage which is the natural consequence of its escape.” See Rylands v. Fletcher, [1861-73] All E.R. 1 at 7 (Ex. Ch.), cited with approval at p. 13 (H.L.). Of course, they must be reasonable. On all the evidence it is fair to conclude that the damages would not be eliminated by reparations to the point of the MOE guidelines. There would be residual loss of value, referred to as stigma, which would be reduced, as the trial judge found, or eliminated, as I am about to find, by remediation to the pristine level.”

Don’t make a move before fully understanding your rights and obligations. For more information and assistance regarding business law or environmental law in Ontario contact Levy Zavet PC in Toronto, Ontario today.

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