Intervenor: Vol 23. No 1 January - March 1998

Casework: CELA Clients Sue Ontario MoE

The Canadian Environmental Law Association is representing Karl and Vicki Braeker who reside at a farm in Grey County, Ontario next to an illegal tire dump. The tires had been brought onto the property by the owner of the site almost eight years ago. The Ontario Ministry of the Environment (MoE) had inspected the property at that time and advised the owner that the site constituted an illegal waste disposal site since it did not have a Certificate of Approval. The owner of the site was also ordered by the local fire department to store the tires in accordance with the requirement of the Ontario Fire Code.

The owner of the dump, therefore, advised the Ministry of Environment (MoE) that he would "temporarily store" the tires by encapsulating and burying them. The proposal was considered to be a sound approach by the MoE which had become increasingly concerned with illegal tire dumps, following the fire at the Hagersville tire dump which resulted in the discharge of toxic fumes and caused extensive contamination.

In January of 1991, approximately 33,000 tires were buried in a trench. These events were observed and video taped by municipal and MoE staff. Prior to the burial operations, the MoE failed to undertake any detailed hydrogeological assessment to determine if the tires could be buried without causing ground water or surface water contamination. The MoE did not object to the burial of tires with the understanding that this would be for only two years. However, MoE sampling of the trench water where the tires were buried indicated that it was contaminated with cresols; manganese; cobalt; diphenylamine; and NDMA (which was the carcinogen involved in a recent controversy over the water supply in Elmira, Ontario). The contaminants are in concentrations which greatly exceed levels permitted under provincial water quality objectives.

In December 1994, a MoE groundwater specialist made an internal recommendation that: "Since leachate from the tires could contaminate the groundwater resources in the area, I strongly recommend that all measures be taken to have the tires removed from the trench and disposed of in an environmentally acceptable manner as soon as possible."

Consequently, the MoE indicated to the owner of the site and the mortgagee that the MoE intended to issue an order requiring the tires be removed and to register notice of the tire dump on title.

The owner of the property was later charged and convicted of operating an illegal waste dump. The former owner, who has since disappeared, was also convicted for failing to comply with the Ministry order to remove the tires. The Director of the MoE, therefore, issued an order against the mortgagee to remove the tires. The mortgagee appealed the order to the Environmental Appeal Board (EAB).

At the hearing before the EAB, the board ruled that the mortgagee was responsible for removing the tires, provided the tires were first unearthed and cleaned by the public officials who had caused or acquiesced in the tire burial. However, the tires remain buried to date and the mortgagee has since appealed the EAB decision to the Divisional Court.

It has been three years since the MoE's specialist recommended removal of the tires and, at this writing, the MoE has failed to excavate and remove the tires.

CELA's clients have issued a Notice of Claim Proceedings Against the Crown Act against the government alleging negligence, in monitoring, inspection and enforcement, and seeking damages for loss, injury and harm.

This case is indicative of a growing number of cases where the government is being sued for regulatory negligence for its failure to exercise its regulatory powers to protect the natural environment. With the drastic cuts to the MoE budget and staff, the capacity of the government to fulfil its core regulatory mandate is open to question. Citizens will, therefore, be increasingly resorting to the courts to prompt the government to exercise its statutory powers to ensure that environmental protection in Ontario is achieved and maintained.

Ramani Nadarajah is a lawyer at CELA