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WILLMS & SHIER SPECIAL
MUNICIPAL EDITION
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WILLMS & SHIER SPECIAL
MUNICIPAL EDITION
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Municipalities may be relieved by the recent dismissal of a class action against the Town of Port Colborne, Niagara Region, and the MOE. The Judge also awarded almost $185,000 in costs against the representative plaintiff. (Ontario Superior Court Judge Nordheimer's decision in Pearson v. Inco is currently under appeal.)
The plaintiff sued mining and smelting giant Inco Ltd., the MOE, the City of Port Colborne, Niagara Region and others. The lawsuit claimed $600 million for damages for potential and actual health impacts from long-term exposure to contaminants, plus damages for diminished property value. The plaintiff also claimed punitive damages of $150 million, and injunctive relief. The potential class included approximately 20,000 people.
Judge Nordheimer dismissed claims of negligence for failure to warn or protect the public, made against the City of Port Colborne and Niagara Region (on behalf of the Medical Officer of Heath) as failing to disclose a reasonable cause of action. If this finding withstands appeal, it ends all civil actions, not just the class action.
The plaintiff alleged that the City granted approvals, provided zoning and issued building permits for land that it knew was contaminated. If individuals had known of the contamination and the associated health risks, they would not have bought or developed the properties, and thus avoided economic loss and injury to health. The plaintiff also claimed that the City permitted residents to use contaminated parks and playgrounds without taking steps to investigate, monitor or protect them.
Judge Nordheimer swept the building permit issue away, stating:
It is inappropriate for courts to second-guess legislators on matters of policy. Further, insofar as it is alleged that the City issued approvals of building permits when it ought not to because of the alleged presence of contamination, no individual member of the public can establish the requisite proximity to give rise to a duty of care in light of the analysis of the Supreme Court in Cooper.
Judge Nordheimer relied heavily on two recent Supreme Court of Canada decisions in Cooper v. Hobart and Edwards v. Law Society of Upper Canada.
Judge Nordheimer dismissed allegations of negligence against the Niagara Region Medical Officer of Health based on Cooper and Edwards. He ruled that there was insufficient proximity between the residents of Port Colborne and their Medical Officer of Health to found a private law cause of action for injury. Also, a Medical Officer of Health is protected by a statutory 'good faith' immunity clause. As a result, the action against the Region failed.
Judge Nordheimer dismissed the plaintiff's claim against the MOE for failure to prosecute under the Environmental Protection Act. The Judge stated:
...the discretionary exercise of a statutory power, as determining whether or not to prosecute clearly is, cannot give rise to a claim in negligence by a particular individual due to the fact that no duty of care arises.
In other words, while a body exercising statutory powers may have a general duty to the public, it does not have private law duties to individuals. It is interesting to note that both Cooper and Edwards dealt with financial injury suffered by investors, while Pearson v. Inco alleges both financial and human health injury.
Municipalities should stay tuned for appellate court rulings in this case!
Ontario's new Municipal Act, 2001 takes effect January 1, 2002. The By-law transition provisions (s. 451) allow existing by-laws to continue without change until January 1, 2006. A host of amendments will follow quickly when Bill 177, the Municipal Statute Law Amendment Act, 2002 passes. Several regulations have already been published, on E-laws (www.e-laws.gov.on.ca/).
The Municipal Act, 2001 provides municipalities with more power to regulate
environmental matters, including power to prohibit or regulate noise, odour
and dust. The ability to regulate environmental threats such as pesticide use,
is enhanced by the new purpose clause. One of the Act's stated purposes is "fostering
the current and future economic, social and environmental well-being of the
municipality."
For analyses of environmental
law aspects of the Municipal Act, 2001, download John Willms' paper entitled
Promoting
Harmony, Protecting Environment
(November 2002) from our Online Compliance Centre (www.willmsshier.com/compliance/),
in the publications section.
The Ontario Ministry of
Agriculture and Food (OMAF) is rapidly pushing forward, and has scheduled Stage
2 consultations on regulations and protocols for December 2002 and January 2003.
New consultation documents include an extensive (91 page) general regulation,
plus draft protocols on construction and siting, nutrient management, biosecurity
and mediation. Download draft regulations and protocols from our Online Compliance
Centre:
www.willmsshier.com/compliance/
or from OMAF (www.gov.on.ca/OMAF/)
Both statutes received Third Reading on December 10, 2002. The government has also appointed a 17 member Advisory Committee to help formulate a framework for watershed-based source-protection planning.
Accountability provisions in the Safe Drinking Water Act are widely drawn and the implications for individual prosecution are intimidating. For drinking water systems owned by a municipality "every person who, on behalf of the municipality, oversees the accredited operating authority of the system or exercises decision-making authority over the system" is potentially liable. In the case of corporate owners, every director and officer is potentially liable. The statutory standard of care will require these individuals to:
a) exercise the level of care, diligence and skill in respect of a municipal drinking-water system that a reasonably prudent person would be expected to exercise in a similar situation; and
b) act honestly, competently and with integrity, with a view to ensuring the protection and safety of the users of the municipal drinking-water system.
It will be an offence to fail to carry out these statutory duties.
Download the Safe Drinking Water Act, 2002 and the current drinking water protection regulations from our Online Compliance Centre (www.willmsshier.com/compliance/).
In Ontario, Bill 148, the Emergency Readiness Act, 2002 has received Royal Assent. When proclaimed it will amend the Emergency Plans Act (and change its name to the Emergency Management Act). Every municipality will have to prepare an emergency management program and pass a by-law to adopt it.
Risk assessment will be mandatory:
…every municipality shall identify and assess the various hazards and risks to public safety that could give rise to emergencies and identify the facilities and other elements of the infrastructure that are at risk of being affected by emergencies.
Municipal emergency planners should review local industry environmental emergency plans to ensure that plans and programs provide for coordinated communication and response.
Emergency management programs include emergency management plans, training programs, exercises for employees and responders and public education. Future regulations may prescribe standards.
Proposed amendments to the Emergency Plans Act are posted on the E-laws site (www.e-laws.gov.on.ca/).
Federal Environmental Emergency (E2) Regulations, and CEPA 1999 emergency reporting and response provisions will likely be finalized in 2003. The regulations will include a list of 174 substances (published in August in Canada Gazette Part 1). The list includes chlorine and ammonia, used by many municipalities. The regulations will require establishment, implementation and testing of environmental emergency plans, and compliance notices will have to be filed with Environment Canada. Spills of these substances will trigger mandatory emergency reporting and response obligations under CEPA 1999, section 201. Environment Canada's Environmental Emergency Website is www.ec.gc.ca/ee-ue/plans/plans_e.asp.
Track the progress of the regulations through the CEPA Registry at www.ec.gc.ca/ceparegistry/.
Brownfields Statute Law Amendment Act, 2001 provisions protecting municipalities and secured creditors from liability came into force on December 1, 2002, along with related regulations under the EPA and OWRA. No date is in sight for promulgation of the clean-up, development or incentive provisions.
We have posted a summary and chart, and the Act, for download at our Online Compliance Centre (www.willmsshier.com/compliance/).
John Willms: Evolving Municipal Environmental Responsibilities and Powers, Insight, January 28, 2003.
Marc McAree: Managing Municipal Expectations When Developing Contaminated Sites, Insight, February 3, 2003.
M. Virginia MacLean:
Municipal Freedom of Information and Protection of Privacy Act, Ontario
Bar Association, March 21, 2003.