Strict Liability under the EPA (Ontario)

While it is sometimes difficult to imagine under our common law system, there is a place for strict liability.

Just a quick digression. There are two areas of the common law: contract and tort. In contract, two parties will have entered an agreement. A Court will assess damages for breach of contract. In tort, there is no contractual relationship between the parties. They are strangers, but nevertheless one has been injured as a result of the wrongdoing of another. Here, Courts will impose liability for damages in tort. An automobile accident is a good example, and so is a “trip and fall”.

Under the law of torts, liability is imposed where the tortfeasor has done something wrong, that is, has been negligent, has caused a nuisance or has trespassed. But, in all such cases, the tortfeasor has done something wrong and the Courts seek to have the tortfeasor change his behaviour in some way, so as to prevent such recurrences in the future.

The concept of strict liability arose in the case of Rhylands and Fletcher. The owner of a tiger was held responsible for the damage caused by the tiger when it escaped, even though he was not personally negligent. The Court held that the tiger was an “inherently dangerous animal” and the owner should be strictly liable for any damage it caused, no matter what.

That doctrine now brings us to Ontario’s Environmental Protection Act (EPA). This is a strict liability statute. Liability is imposed regardless of fault. It should be mentioned that this is not the case in every jurisdiction. And, in some jurisdictions which do utilize the strict liability approach, there is a special exemption for “innocent landowners”.

You may wish to see the U.S. Comprehensive Environmental Response, Compensation and Liability Act, or the “innocent purchaser” exemption under the British Columbia Waste Management Act.

The EPA provides that no “person responsible” for a source of contamination shall permit the discharge into the natural environment of any contaminant in an amount in excess of that which is prescribed by regulation. A “person responsible” is specifically defined in the EPA to mean:

1) the owner, or
2) the person having the charge, management or control,

of a source of contaminant.

So, the owner does not need to be negligent, nor does the person having charge, management or control. They both have a positive obligation to prevent the contamination. If they fail to do so, then, they are responsible. It may not be their fault, but it is their responsibility and they are liable for the damages caused.

It’s just like owning the tiger!

Brian Madigan LL.B., Broker

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