Ontario’s Environmental Protection Act section 18(1) lets a Director order work against “a person who owns or owned or who has or had management or control of an undertaking or property”. Having caused the contamination is not part of that test. A buyer who takes the land, or takes operating control of it, enters that class at closing.
Key takeaways
SECTION 01 OF 09
The order-making provisions do not describe polluters. They describe positions relative to property. Section 18(1), marginal note Order by Director re preventive measures, lets the Director order “a person who owns or owned or who has or had management or control of an undertaking or property”.
Control orders under section 7(1) and stop orders under s.8(1) use the same three-item list: “an owner or previous owner of the source of contaminant”, “a person who is or was in occupation of the source of contaminant”, and “a person who has or had the charge, management or control of the source of contaminant”.
A provincial officer’s order under section 157.1(1) is tighter — “any person who owns or who has management or control of an undertaking or property”, no past tense. Treadstone Law agrees on liability passing to a new owner.
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Section 1(1) makes a contaminant anything — including “odour, heat, sound, vibration, radiation” — that “causes or may cause an adverse effect”, a phrase running from “impairment of the quality of the natural environment” to “interference with the normal conduct of business”.
Section 17, marginal note Remedial orders, is the fault-facing one: it applies “Where any person causes or permits the discharge of a contaminant into the natural environment” and lets the Director order that person to “repair the injury or damage”. It sets no monetary ceiling.
Section 18 is addressed instead to whoever owns or controls the property, and its grounds in section 18(2) reach an adverse effect that may result from “the presence or discharge of a contaminant in, on or under the property”. Presence, not only discharge: historic contamination under a floor slab is inside those words. Paragraph 5 of s.18(1) separately allows an order “To monitor and record the presence or discharge of a contaminant”. One site can therefore produce both orders, to two different parties.
SECTION 03 OF 09
In Kawartha Lakes (City) v. Ontario (Environment), 2013 ONCA 310, fuel oil spilled at a home and migrated onto a road allowance owned by the City, which was ordered to remediate its own land under s.157.1. Goudge J.A. recorded “All parties agree that the appellant bore no responsibility for the spill”, and that “As permitted by s. 157.1, this was a no fault order.”
The City sought to lead evidence that others were at fault. The Tribunal excluded it and the Court of Appeal agreed, noting it “concluded that it was not enough for the appellant to rely on its status as an innocent victimized owner without addressing how the legislative objective of environmental protection would be met if the Director’s order were revoked.”
“Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the Director’s order were revoked.” The judgment separately records the City pursuing cost recovery under section 100.1, alongside the clean-up rather than instead of it.
SECTION 04 OF 09
Elsewhere the structure settles it: buy shares and the corporation keeps its liabilities, buy assets and the buyer assumes what it agrees to. Environmental orders sit outside that logic, because section 18(1) targets ownership and control of property, not who signed which contract. Treadstone Law’s comparison of asset against share purchase treats the distinction as partial protection.
An existing order also travels. Section 19(1), marginal note Successors and assigns, makes an order, approval or certificate of property use binding “and on any other successor or assignee of the person to whom it was directed”.
Individuals are reachable too. Section 194(1) gives every director and officer “a duty to take all reasonable care to prevent the corporation from” listed failures, including contravening an order, and subsection (2.1) puts the burden on the accused, who “has the onus, in the trial of the offence, of proving that he or she carried out the duty”. See Treadstone Law on directors named in a Ministry order.
SECTION 05 OF 09
Part X runs independently of ss.17 and 18. Section 93(1) puts a duty on “The owner of a pollutant and the person having control of a pollutant that is spilled” to “forthwith do everything practicable to prevent, eliminate and ameliorate the adverse effect and to restore the natural environment”. Compensation under section 99 is likewise strict: “Liability under subsection (2) does not depend upon fault or negligence.”
The Minister’s spill order under section 97(1) can go to eight categories; the third is the one a purchaser should read: “The owner or the person having the charge, management or control of any real property or personal property that is affected or that may reasonably be expected to be affected by the pollutant.” Being downgradient of another’s spill suffices — see Treadstone Law on contamination on a neighbouring property.
SECTION 06 OF 09
Section 197(1) lets whoever may make an order affecting real property require anyone with an interest in it, “before dealing with the property in any way, to give a copy of the order or decision” to “every person who will acquire an interest in the property as a result of the dealing”. Subsection (2) allows that requirement to be registered on title.
Registration changes who it binds: a registered requirement “is, from the time of registration, deemed to be directed to each person who subsequently acquires an interest in the real property.” Subsection (4) arms the buyer kept in the dark: such a dealing “is voidable at the instance of a person who was not given the copy of the order or decision”. And section 168.7.2(1) puts notice of an order in the public Environmental Site Registry.
SECTION 07 OF 09
The one statutory shield is Part XV.1. Under section 168.4(1) an owner may file a record of site condition once a qualified person certifies a phase one assessment was done, and a phase two done or not needed. Section 168.7(1) then provides that “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”.
Then five carve-outs. It fails where the record “contains false or misleading information or false or misleading certifications”, or where a contaminant afterwards “moved from the property to which the record of site condition relates to another property”, or against a person causing a change to a more sensitive use. Subsections (5) and (6) preserve s.157 orders for breach of a certificate of property use or the soil regulations, and section 168.8 still allows an order to the owner where an old contaminant creates “danger to the health or safety of any person”.
A certificate of property use under section 168.6 can require the owner to “Refrain from using the property for any use specified in the certificate”. See Treadstone Law on brownfield protections. Filing is compulsory before some changes of use: section 168.3.1(1) covers a change of use “from industrial or commercial use to residential or parkland use”.
SECTION 08 OF 09
A vendor warranty is a claim against the vendor, not a defence to an order: the Director’s power under section 18(1) does not turn on any agreement between buyer and seller. O. Reg. 153/04 section 24 sets 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.”
Two traps follow. Section 28(1)(a) lets a phase one report be used only where that work was done “no later than 18 months before” the filing or a phase two, so a report off the vendor’s shelf may be unusable. And under section 27(3) denial of access to a qualified person, other than for safety or inaccessibility, “is an impediment that precludes meeting the general or specific objectives, components or requirements of a phase one environmental site assessment”. See Treadstone Law on environmental due diligence.
SECTION 09 OF 09
A provincial officer’s order goes to the Director for review within seven days under section 157.3(1), and that request “does not stay the order, unless the Director orders otherwise in writing.” A Director’s order goes to the Ontario Land Tribunal within fifteen days under section 140(1); that is a new hearing under s.145.2(1), an appeal lies to the Divisional Court “on a question of law” under s.145.6(1), and s.143(1) confirms no automatic stay. Non-compliance is an offence under section 186(2), with corporate fines under s.187(2) reaching $250,000 on a first conviction “for each day or part of a day on which the offence occurs or continues”.
So price the investigation, not the promise. An indemnity, holdback or cap carve-out allocates cost between the parties — see Treadstone Law on what an environmental indemnity should cover — but none changes who the Ministry may order. This is Ontario law; environmental regulation is provincial. Federal law applies in parallel on its own terms: CEPA 1999 section 235 lets an enforcement officer order a person who “owns or has the charge, management or control of” the substance or “the property on which the substance or product is located”.
Yes. Section 18(1) of Ontario’s Environmental Protection Act lets a Director order work against anyone who owns or owned, or has or had management or control of, an undertaking or property — having caused the contamination is not part of that test. The Court of Appeal upheld exactly this kind of order against an owner all parties agreed bore no responsibility for the spill.
Less than buyers expect. Environmental orders target ownership and control of property, not who signed which contract, so the usual asset-versus-share protection does less work here. An existing order also binds successors and assignees, and can be registered on title so it follows the property to the next owner.
Not completely. The filing blocks orders under eight named sections for contamination discharged before the certification date, but five carve-outs survive it — including a false or misleading record, contamination that later migrates off-site, and a change to a more sensitive land use. An order can still issue where old contamination creates a danger to health or safety.
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