The Court issued an order quashing the appellants’ statutory appeals and applications for review of an Environmental Review Tribunal’s decision. The appellants had been ordered to assume the costs of remediation activities on property formerly owned by two companies which had insufficient funds to cover the cost of remediation. The appellants were all former directors or officers of one or both of the companies.

Administrative law – Decisions of administrative tribunals – Ministerial orders – Environmental matters – Contaminated sites – remediation – Judicial review – Appeals – Jurisdiction of court – Stay of proceedings – Remedies – Interlocutory injunctions

Baker v. Ontario (Director, Ministry of the Environments), [2013] O.J. No. 3145, 2013 ONSC 4142, Ontario Superior Court of Justice, June 19, 2013, H.E. Sachs J.

The Appellants, all of whom were former directors or officers of Northstar Aerospace, Inc. or its wholly-owned subsidiary, Northstar Aerospace (Canada) Inc., appealed a Director’s order from the Minister of the Environment (“MOE”) which ordered them to assume responsibility for a previous Remediation Order issued against Northstar Inc and Northstar Canada. Northstar Canada had previously discovered and reported to the MOE the presence of Trichloroethylene (“TCE”) on a property it owned in 2004.

Northstar Canada had voluntarily completed extensive investigation, remediation and monitoring activities at the site up until August of 2012. In 2012, the MOE became concerned about the financial well-being of both Northstar Inc. and Northstar Canada and issued the aforementioned Remediation Order pursuant to the Environmental Protection Act (the “EPA”) as a result. The MOE then issued a further Director’s order seeking assurance that the remediation efforts would continue notwithstanding the financial difficulties of both companies.

Neither company had sufficient funds to satisfy the MOE’s second order, and both companies applied for protection under the Companies Creditors Arrangement Act. The directors of both companies resigned effective upon the issuance of the CCAA Order. Following the Order and the sale of assets of both Northstar Inc. and Northstar Canada, the MOE assumed responsibility for the work still required by the Remediation order. The MOE subsequently issued the Director’s order against the Appellants requiring them to assume costs of the remediation activities which amounted to $1.4 million annually.

The Appellants appealed the Director’s Order and brought a motion to have the Superior Court assume jurisdiction for their appeal from the Environmental Review Tribunal (the “Tribunal”). As part of their appeal, the Appellants sought a stay and interim stay of the Director’s order pending the outcome of their appeal. The stay motion was dismissed by the Tribunal. The Appellants both appealed and brought an application to judicially review the Tribunal’s stay decision. The MOE moved before the Superior Court for an order quashing the statutory appeals on the basis that there is no right of appeal of interlocutory decisions under the EPA.

The Court issued an order quashing both the Appellants’ statutory appeals and their applications for judicial review of the Tribunal’s stay decision.

The Court found that the Tribunal’s decision was interlocutory as it dealt only with who should bear the cost of remediation pending the hearing of the appeal. Further, the Court agreed with the MOE that the EPA did not afford the appellants with a statutory right to appeal the interlocutory stay decision. Finally, the Court noted that Appellants’ applications for judicial review were premature as they had failed to avail themselves of all effective remedies available to them through the administrative process, namely a review of the order or a new motion in light of new evidence that the CCAA court had decided that the Appellants could not access money from the CCAA proceedings to reimburse them for the costs of complying with the Director’s order.

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