The Midwest Properties Ltd. case rewrites environmental liability for contaminated sites. On November 27, 2015 the Court of Appeal for Ontario released its reasons in Midwest Properties Ltd. v. John Thordarson and Thorco Contracting Limited. Factually, Midwest’s property which was adjacent to a fuel storage facility had been badly contaminated as a result of the deliberate and longstanding carelessness of the owner of the adjacent lands in keeping and storing principally petroleum hydrocarbons on its site. The Defendant had been the subject matter of numerous environmental orders which it had not obeyed. The matter came on for trial and the Trial Judge ruled that since the Ministry of the Environment ordered the Defendant to clean up the Plaintiff’s land a Judgment for the costs of remediating the Plaintiff’s land would be double recovery and forbidden.
The Court of Appeal reversed this decision and decided:
- A remediation order by the Ministry of the Environment is no bar to recovery of damages for environmental contamination.
- The statutory cause of action under section 99 of the Environmental Protection Act should be construed liberally so as to provide a remedy to persons whose lands are contaminated.
- It is no excuse for a contaminator to say that the Plaintiff should have done more due diligence before buying their land because the land was already contaminated before they moved onto it.
- The reasoning in Tridan v. Shell of which the author was the Plaintiff’s solicitor some fifteen (15) years ago was given a full page of commentary and preserved by the Court of Appeal.
- Where appropriate personal liability under the Environmental Protection Act is available.
- Where appropriate a director or officer of a company that willfully contaminates property can be held personally liable along with the company.
- A party with contaminated land can be compensated for the cost of remediating it even if such cost exceeds the value of the land.