Administrative law – Decisions of administrative tribunals – Ministerial orders – Environmental matters – Contaminated sites – Remediation – Costs – Judicial review – Natural justice – Procedural requirements and fairness – Compliance with legislation – Human rights – Charter of Rights and Freedoms
Fisher v. Prince Edward Island (Minister of Environment, Labour and Justice),  P.E.I.J. No. 37, 2013 PESC 27, Prince Edward Island Supreme Court, December 6, 2013, B.B. Taylor J.
The applicant, Mr. Fisher, is a property owner in Prince Edward Island. An oil spill occurred on his property, allegedly as the result of sabotage by a former tenant. Following the oil spill, the Minister of Environment, Labour and Justice served an order on Mr. Fisher ordering him to clean up the property. Other than indicating he would not clean up the oil spill on the property, Mr. Fisher provided no response to the order. This was the last formal communication between the Minister and Mr. Fisher for almost two years. Once it learned Mr. Fisher did not intend to clean up the oil spill, the Minister went ahead and retained companies to conduct remediation without consulting Mr. Fisher. Subsequently, the Minister issued an order pursuant the Environmental Protection Act, R.S.P.E.I. 1988, c. E‑9, ordering Mr. Fisher to pay clean up costs of approximately $96,000.
Mr. Fisher applied for judicial review of the Minister’s orders. Mr. Fisher argued the Environmental Protection Act ought not to apply to him in these circumstances because the oil spill was caused by unproven criminal behaviour of another person (notwithstanding that the statute does not establish such a defence even if criminal behaviour were proven), and because the government ought to have acted more quickly to remediate the oil spill. In the context of these arguments, Mr. Fisher asserted there was overbilling and duplication of billing in the remediation costs and that he ought to be permitted a rehearing to assert a due diligence defence to the orders. He also argued the provisions of the Environmental Protection Act permitting the Minister to recover remediation costs from a property owner creates a penalty or offence which violates his rights under the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms.
The court dismissed the application for judicial review. The court held the Environmental Protection Act imposes financial responsibility upon property owners for failure, whether negligent or not, to keep a dangerous product, in this case heating oil, confined, because if it escapes it will permeate the soil and end up in the water table. The province has a clear right to impose a duty and financial obligation on property owners where a spill occurs. The court held the Environmental Protection Act gives the Minister discretion to place responsibility for remediation costs solely on property owners, regardless of fault, and the province has the authority to enact such legislation in relation to property and civil rights in the province.
The court rejected Mr. Fisher’s various arguments regarding the nature of the order and the Minister’s actions. It noted the orders were granted pursuant to an exercise of ministerial discretion, which did not require a detailed written decision setting out facts, issues, law, and findings following a trial or hearing, as would happen if the matter were before a court or administrative tribunal. Rather, the Minister exercised his discretion by making a decision based on the Environmental Protection Act, its objectives, and the interchange between his department, the parties, and other individuals who would be affected by the exercise of discretion or with information relevant to the decision. This decision was owed deference.
There was no basis for Mr. Fisher’s assertion the government ought to have acted more quickly to remediate the oil spill. The government did not have a duty to commence the remediation as soon an oil spill was determined; Mr. Fisher had that responsibility.
It was not open to the court on judicial review to determine whether there was overbilling or duplication in billing in relation to the remediation, as that was a different issue from whether the Minister had authority to demand Mr. Fisher pay remediation costs.
There was no basis for Mr. Fisher’s request that the matter be sent back for rehearing, both because there was no foundation for a due diligence defence in light of the fact Mr. Fisher did nothing beyond notifying the Minister of the oil spill and because the order did not arise out of a hearing for which a rehearing could be ordered; rather, it arose out of actions that were akin to a default proceeding in the absence of a response from Mr. Fisher. The court found the Minister’s orders were one of the possible results which reasonably could have been decided by the Minister absent any response from Mr. Fisher.
The court held that Mr. Fisher’s Canadian Bill of Rights and Charter arguments were without foundation. Citizens have no right under the Bill of Rights or under the Charter to not suffer a financial loss in relation to their property. There is no immunity from financial consequences in these circumstances. The court noted that the Charter is not an economic document and, in particular, s. 7 of the Charter is not generally concerned with economic interests or rights.
The court dismissed Mr. Fisher’s application for judicial review.
This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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