A record of site condition is the one statutory shield against a no-fault order. It is not an unconditional one.
Short answer
Largely, yes, but with real conditions attached. Under Part XV.1 of the Environmental Protection Act, an owner may file a record of site condition once a qualified person certifies the required assessment work. Once filed, s.168.7(1) provides: “no order shall be issued to any of the following persons under section 7, 8, 12, 17, 18, 97, 157 or 157.1 in respect of a contaminant that was discharged into the natural environment before the certification date and was on, in or under the property as of the certification date.” A buyer who insists on a filed record before closing, rather than merely a phase one report sitting in the data room, converts historical contamination from an open-ended risk into a largely closed one. See Environmental Protection Act, s.168.7(1).
The regulation behind the filing sets what the underlying work has to establish. O. Reg. 153/04 fixes the phase one objectives, the first being “to develop a preliminary determination of the likelihood that one or more contaminants have affected any land or water on, in or under the phase one property.” A report done for an unrelated purpose, or done too long before filing, may not satisfy the regulation at all — a phase one generally has to be current within 18 months of the filing or a phase two, so a report inherited from the seller’s own earlier diligence can be unusable on the buyer’s timeline. See O. Reg. 153/04, Records of Site Condition, s.24.
The shield is conditional, not absolute, and the conditions matter as much as the filing itself. It fails where the record contains false or misleading information; where a contaminant present at certification later migrates from the property to a neighbouring one; against a person who changes the property to a more sensitive use than the one certified; and it does not touch a breach of a certificate of property use or an order needed to address danger to health or safety, whatever the certification date says. A buyer relying on an inherited record should confirm the certified use still matches the intended one before closing, not after.
No case file in this cluster turns on a record of site condition specifically. The mechanic above is drawn directly from the statute and its regulation; the wider Case Files collection covers other Ontario statutory shields with their own carve-outs and deadlines, each needing the same close reading a record of site condition does.
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