Pracz v. Nova Scotia (Environment and Labour)

Pracz v. Nova Scotia (Environment and Labour) Court Supreme Court Date 2004-03-16 Citation 2004 NSSC 61 Docket SH 200776 A, SH 207667 A Judge/Registrar/Adjudicator Pickup, Arthur W. D. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Pracz v. Nova Scotia (Environment and Labour), 2004 NSSC 61 Date: 20040316 Docket: SH 200776A & SH 207667(A) Registry: Halifax Between: Danuta Pracz and Estate of Tadeusz Pracz Appellants v. Minister of The Environment and Labour Representing Her Majesty The Queen in Right of The Province of Nova Scotia Respondent - and - Between: Tadeusz Pracz and Danuta Pracz Appellants v. Minister of the Environment Representing Her Majesty The Queen in Right of The Province of Nova Scotia Respondent Judge: The Honourable Justice Arthur W.D. Pickup Heard: March 1, 2004, in Halifax, Nova Scotia Written Decision: March 16, 2004 Counsel: Brian Casey, for the Appellants Stephen T. McGrath, for the Respondent Pickup, J: FACTS: [1] This is an appeal from three Ministerial Orders issued by the Minister of the Environment pursuant to the Environment Act, S.N.S. 1994 - 1995, C-1. [2] The Appellants Tadeusz and Danuta Pracz entered into an agreement of purchase and sale with Brighton Homes Limited to purchase a house to be constructed on Lot 31, Kingswood Subdivision in Hammonds Plains. [3] The sale closed on March 11, 2003. On March 27, 2003 the oil tank was filled and on March 30 - 31, 2003 the oil tank tipped over and poured heating oil onto the ground. The oil tank was situate on concrete blocks over sand and during heavy rains the sand underneath the oil tank washed out, the concrete pad shifted and caused the oil tank to tip. [4] Mr. and Mrs. Pracz notified their home heating supplier, the contractor, their insurer and legal counsel of the spill. The contractor denied any liability. The subcontractor who installed the tank denied liability. [5] Esso Home Comfort, the oil supplier notified the Department of the Environment of the spill. Inspectors from Environment attended the site. [6] On one such visit to the site on April 11, 2003, Paul Currie, an inspector with Environment was advised by Mr. and Mrs. Pracz that they were unwilling to take any action to remediate the site as they believed that their contractor had negligently installed the oil tank and that it was the contractor’s responsibility. [7] During a subsequent site visit on April 16, 2003 Paul Currie was advised by Mr. Pracz that after receiving legal advice he was not prepared to initiate clean-up of the site. After the inspection Mr. Currie issued a field order under the Environment Act directing the Praczes to initiate containment of the oil spill. [8] On April 17, 2003 a Ministerial Order was issued pursuant to s. 125 of the Environment Act ordering the Praczes to do listed tasks to initiate containment of the oil spill. [9] Mr. and Mrs. Pracz did not comply with this Order and Environment advised by letter dated May 12, 2003 that it intended to retain a contractor to perform the work required to be carried out under the terms of the Containment Order. The Praczes consented to this work and a contractor was hired by Environment to carry out the work. After completion an invoice was issued by the contractor to Environment. [10] Formal charges were laid against the Praczes for failing to comply with the Containment Order. [11] Mr. Pracz died in late May of 2003. [12] On September 11, 2003 the Minister of Environment issued an Order pursuant to Subs. 132(3)(a) of the Environment Act to Mrs. Pracz and the estate of her late husband requiring them to reimburse the money paid by Environment to initiate the work completed by the contractor. [13] On the same date, the Minister issued a Ministerial Order pursuant to s. 125(1) of the Environment Act requiring full remediation of the site. [14] Mrs. Pracz and her late husband’s estate appeal the three Ministerial Orders: (1) On April 17, 2003 directing Mr. and Mrs. Pracz to contain an oil spill; (2) On September 11, 2003 requiring Mr. and Mrs. Pracz to pay $4,902.45 ( the amount charged by the contractor to contain the oil spill); (3) On September 11, 2003 requiring the Praczes to remediate the site of the oil spill. [15] The Praczes argue that the Ministerial Orders should not have been issued without affording them an opportunity to make representations and the decision to issue these Orders was unreasonable. ISSUES: [16] (1) What is the appropriate standard of review to be applied to the Ministerial Orders in this case? (2) Should the Ministerial Orders be set aside? Legislative Framework [17] Before I turn to these issues I will review the legislative framework under which these Orders were issued. [18] The Containment Order and the Remediation Order were issued under s. 125 of the Environmental Act, S.N.S. 1994 - 1995 C.1 : Ministerial control order 125(1) Where the Minister believes on reasonable and probable grounds that a person has contravened or will contravene this Act, the Minster may, whether or not the person has been charged or convicted in respect of the contravention, issue an order requiring a person, at that person’s own expense, to... (b) stop, limit, alter or control the release of any substance into the environment or part thereof in accordance with the directions set out in the order, either permanently or for a specified period; (e) take interim measures to control, eliminate or manage the adverse effect, including the provision of potable water to affected parties; (f) undertake remedial action to control, reduce, eliminate or mitigate an adverse effect; (h) carry out clean-up, site rehabilitation or management, site security and protection or other remedial actions in accordance with directions set out in the order; (s) do all things and take all steps necessary to comply with this Act, or to repair any injury or damage, or to control, eliminate or manage an adverse effect. [19] The Order to Pay was authorized by s. 132 of the Environmental Act: Person to comply with order 132(1) When an order is served on a person to whom it is directed, that person shall comply with the order forthwith or, where a period for compliance is specified in the order, within the time period specified. Non-compliance (2) Where the person to whom an order is directed does not comply with the order or part thereof, the Minister may take whatever action the Minister considers necessary to carry out the terms of the order. Reasonable costs recoverable (3) Reasonable costs, expenses or charges incurred by the Minister pursuant to this Part are recoverable by order of the Minister (a) against the person to whom the order was directed; or (b) directing any person who has purchased real property from the person to whom the order was directed to pay to the Minister from any money which is still owed to the vendor, a sum not to exceed the amount owing in respect of the costs, expenses or charges. Discharge (4) A purchaser who pays an amount to the Minister pursuant to clause (3)(b) is discharged from any obligation to pay that amount to the vendor. Reasonable costs (5) For the purpose of this Section, the costs referred to in subsection (3) include any costs incurred in investigating and responding to (a) any matter to which an order relates; or (b) the failure to comply with an order. Certificate is proof (6) In any claim or action under this Section, a certificate purporting to be signed by the Minister setting out the amount of the cost, expense or charge is admissible in evidence and is, in the absence of evidence to the contrary, proof (a) of the amount of the cost, expense or charge set out in the certificate; and (b) that the cost, expense or charge was made necessary or caused by the release of a substance, contaminant, waste or thing to which the claim or action relates. [20] The Containment Order and the Remediation Order both refer to the Minister’s belief that the Praczes had contravened s. 67(2) and s. 71 of the Act. These provisions read as follows: Prohibition 67(2) No person shall release or permit the release into the environment of a substance in an amount, concentration or level or at a rate of release that causes or may cause a significant adverse effect, unless authorized by an approval or the regulations. 1994-95, c. 1, s. 67. Duty to take remedial measures 71 Any person responsible for the release of a substance under this Part shall, at that person’s own cost, and as soon as that person knows or ought to have known of the release of a substance into the environment that has caused, is causing or may cause an adverse effect, (a) take all reasonable measures to (i) prevent, reduce and remedy the adverse effects of the substance, and (ii) remove or otherwise dispose of the substance in such a manner as to minimize adverse effects; (b)take any other measures required by an inspector or an administrator; and (c) rehabilitate the environment to a standard prescribed or adopted by the Department. 1994-95, c.1, s. 71. ISSUES What is the appropriate standard of review [21] Recent decisions of the Supreme Court of Canada instruct Courts reviewing administrative decisions to take a “functional and pragmatic approach” to the task. [22] In The Law Society of New Brunswick v. Ryan [2003] 1. S.C.R. 247 (para. 24) Justice Iacobucci states that at present there are only three standards of review: A pragmatic and functional approach should not be unworkable or highly technical. Therefore I emphasize that, as presently developed, there are only three standards. Thus a reviewing court must not interfere unless it can explain how the administrative action is incorrect, unreasonable, or patently unreasonable, depending on the appropriate standard. [23] In Pushpanathan v. Canada Minister of Citizenship and Immigration [1998] 1 S.C.R. 982 the Supreme Court of Canada noted that the factors to be taken into account when determining the standard of review are divided into four categories: 1. privative clauses; 2. expertise; 3. purpose of the Act as a whole and the provision in particular; and 4. the nature of the problem: a question of law or fact. [24] The classification into the appropriate standard of review is to be based on the “pragmatic and functional approach” set out in Pushpanathan, supra. [25] Mrs. Pracz and the estate suggest that the standard of review in this case is correctness. The Minister argues the proper standard of review is patent unreasonableness. [26] Having considered the evidence before me and considering the factors outlined in Pushpanathan, supra. I find that the appropriate standard of review is the standard of patent unreasonableness. The following is an analysis as to how I have reached that conclusion. (1) Privative Clause [27] In this case there is no privative clause and the Environment Act permits an appeal. The Praczes argue that the absence of the privative clause and the existence of an appeal as of right would indicate the Court should perform a more searching review. [28] The presence of a privative clause is more significant than the absence of one. [29] In Pushpanathan, supra. Justice Bastarache stated at para. 30: The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard. However, the presence of a “full” privative clause is compelling evidence that the court ought to show deference to the tribunal’s decision, unless other factors strongly indicate the contrary as regards the particular determination in question. 2. Expertise [30] The next factor is the expertise of the decision maker. This is acknowledged as one of the most important factors to be considered. [31] In Pushpanathan, supra, Justice Bastarache discussed the nature of a Court’s consideration of the expertise of the decision maker at para: 32: Described by Iacobucci J. in Southam, supra, at para. 50 as “the most important of the factors that a court must consider in settling on a standard of review”, this category includes several considerations. If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded. [32] In this case the Minister’s decision to issue these Orders is being challenged. The Minister under s. 8 of the Environment Act is charged with the administration and enforcement of the Act. He makes decisions that result in Orders being issued under the Act. He would need to be aware of the policy considerations involved. A Minister has advice from within his or her department. A Minister makes decisions under the mandate he has been given to administer his department and in this instance the mandate given is under the Environment Act. [33] In an Alberta decision Fenske (c.o.b. Glombick Farms) v. Alberta (Minister of Environment) [2002] A. J. No. 823 the Alberta Court of Appeal dealt with the standard of review applicable to an Order of the Minister of Environment in that Province. Costican J.A. at para.26 stated: In this case, the expertise of the Appellant is apparent from the scheme of the EPEA which vests in the Appellant and his ministry, the complex task of assessing and weighing the often competing technical and public policy considerations inherent in the protection of the environment. Indeed, the Appellant’s expertise is such that he is free to confirm, reverse, or vary the recommendations of an expert Board. [34] The Alberta Court found the appropriate standard of review was patent unreasonableness. [35] The Praczes argue that the Minister has no expertise in determining what led to the oil tank tipping or the special expertise needed to determine the matter or to assess the reasonableness of the position taken by the Praczes. The Praczes argue that the Minister must act like a Court to determine issues of causation and civil liability and that the Minister would lack such expertise. [36] The Minister in my view is not charged with determining civil liability under the Act but rather to determine the most appropriate method to address the environmental issue before him. S. 141 of the Act preserves the right of all parties to a civil remedy. Any action by the Praczes against the contractor or others are unaffected by these Ministerial Orders. [37] In Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services) [2001] 2 S.C.R. 281 (para. 58 - 59). The Supreme Court of Canada reviewed action by a Minister of Health and Social Services for Quebec relating to the alteration of a permit for a care facility. The majority of the Supreme Court of Canada concluded that the Minister had already exercised his discretion leaving him no authority to subsequently refuse to issue a permit. The minority analysed the relationship between the parties and in the course of doing so commented on the extent to which a Court should show deference to decisions of Ministers of the Crown: Decisions of Ministers of the Crown in the exercise of discretionary powers in the administrative context should generally be reviewable only on a standard of patent unreasonableness. The broad regulatory purpose of the permit in the context of the legislation designed to regulate the provision of health services “ in the public interest” favours a high degree of deference, as does the expertise of the Minister and his advisors, and the Minister’s position in the upper echelon of decision makers under statutory and prerogative powers. [38] In my view, the Minister’s actions being discretionary require a high degree of deference. (c) Purpose of the Act as a whole and the provision in particular [39] In Pushpanathan (para. 36) Justice Bastarache noted that the factors relating to purpose and expertise often overlap: Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balance between different constituencies, then the appropriateness of court supervision diminishes. ... While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. Where an administrative structure more closely resembles this model, courts will exercise restraint. The polycentricity principle is a helpful way of understanding the variety of criteria developed under the rubric of the “statutory purpose”. [40] The Praczes submit the Minister’s decision to issue the Ministerial Orders does not involve the balancing of interest but rather is a straight forward bipolar issue - the Minister and the Praczes. The Minister has made a decision to order the Praczes to take a particular action where the cost alleged is to be in the vicinity of $80,000.00. The Praczes further submit a determination that one party should pay for damage caused by an oil spill is the kind of decision frequently made in the Courts and therefore the nature of the decision made in this case does not entitle the Minister’s decision to be treated with deference. [41] In Legal Oil and Gas Ltd. v. Alberta (Minister of Environment), the Alberta Court of Queen’s Bench, (2000), 265 A.R. 346 on an application for judicial review of an order issued by the Minister of Environment, commented at para. 25 on the Alberta Environment Act: The Act is broadly structured to deal with all aspects of environmental management. Section 2 sets out the purpose of the Act. It encompasses matters of sustainable development, environmental limitations on economic decisions, environmental research, public input on environmental issues, limiting pollution and assigning responsibility for pollution. Against that backdrop, the Board has been established as a final arbiter in relation to certain actions authorized by the statute and an expert advisor on other matters upon which the Minister is the final decision-maker. [42] The Court’s decision continued at para. 33: As explained earlier, this Act is about protection and remediation based upon policy concerns. The Act requires consideration of many competing interests and involves a variety of non-judicial strategies for resolution of interests. As such, it can safely be concluded that the Legislature would expect the courts to defer to the decision of those charged with effecting the purposes of the Act. [43] These comments by the Alberta Court are equally appropriate here. The Minister here, similar to the Minister in Alberta must balance many interests and policies which flow from the Act and therefore deference to these decisions are appropriate. Although these Orders have been issued against the Praczes with particular sanctions, there is nothing to prevent an action by the Praczes against others whom they consider responsible or liable. The Minister has not fixed civil liability on the Praczes but rather based on his mandate under the Environment Act has decided a course of action to deal with an environmental issue and as such requires deference from the Court. (4) Nature of the Problem: A question of law or fact [44] Generally matters of fact require a higher degree of deference than legal questions. [45] The Praczes argue that the Minister’s decision has a large legal component: whether the builder is responsible . The Praczes argue that since this is a decision fixing a party with a legal and financial responsibility that this decision is not entitled to deference from the Court. [46] Again, the issue is not who is responsible for the spill. This can be determined by civil action. The Minister’s decision is a discretionary one. The Praczes were “persons responsible” within Section 3 (a k) of the Act as owners of the property. The Minister has not made any legal determination as to who is ultimately responsible in negligence for the spill. The Minister has determined that the Praczes as “owners of the property” must take steps to remediate the environmental damage caused by the oil spill. [47] Having found that the appropriate standard of review is the standard of patent unreasonableness, I will turn to a determination as to whether or not there was anything patently unreasonable in the issuance of the Ministerial Orders. Issue # 2 - Should the Ministerial Orders be set aside? [48] Is there anything patently unreasonable in the issuance of the Ministerial Orders to enable this Court to set aside these Orders as requested by the Praczes? [49] The Praczes suggest the following as a basis for the Court to overturn the Ministerial Orders: (1) There was no opportunity given to the Praczes to make representations; (2) The spill was caused by act or omission of an independent third party (ie. the contractor or sub-contractor); (3) That the Praczes took all reasonable care to prevent the spill (ie. due diligence) (4) That the spill was caused because the contractor ignored industry standards. [50] I will now comment on each of these issues raised by the Praczes. (1) No opportunity was given to the Praczes to make representations. [51] The Praczes submit that the Minister’s decision to issue Orders in this case attracted a duty of fairness which required that they be afforded an opportunity to make submissions “in some fashion”. The Praczes do acknowledge in their submissions that this right to make representations does not include an entitlement to evidence under oath or the right to cross-examine witnesses. It is unclear from the Praczes submission as to what form these submissions would take. [52] There is nothing in the legislation which requires a Minister to receive submissions prior to issuing a Ministerial Order. Staff of the Department did discuss with the Praczes the particulars surrounding the spill on several occasions. In his Affidavit, Paul Currie, an Inspector Specialist II with Environment listed occasions when he spoke with the Praczes: (1) On April 11, 2003 he met with the Praczes in the Bedford offices of Environment where he received, “further particulars regarding their contractor and the insurance adjusters representing the sub-contractor who installed the tank”; (2) On April 11, 2003 he met and spoke with Mr. and Mrs. Pracz at the spill site; (3) On April 11, 2003 he spoke with the Praczes’ adjuster and contractor; (4) On April 16, 2003 along with another inspector Mr. Currie met and spoke with the Praczes. [53] In my view there is no procedural right for the Praczes to make submissions prior to the issuance of the Ministerial Orders. [54] The Praczes suggest that the financial burden imposed by the Ministerial Order require that they be given the right to make submissions to the Minister. [55] The Praczes have put their position forward to Environment through Mr. Currie. Mr. Currie spoke to the Praczes, their contractor and adjuster. [56] The position put forward by the Praczes to Mr. Currie and before this Court is that others are responsible for the oil spill. Mr. Currie’s evidence is that the contractor and subcontractor both deny liability. [57] I find that the Praczes had ample opportunity to communicate their position to Environment through their employee John Currie. I find no procedural unfairness. (2) The spill was caused by an act or omission of an independent third party [58] The Praczes suggest that the Minister erred in determining that the Order should actually be issued because they alleged there was a failure to properly consider the provisions of s. 129 of the Environment Act. This provision provides for factors to be considered by the Minister before making an Order. The Statute provides that: “the Minister shall be guided by the following considerations, if such information is available or accessible to the Minister.” [59] The Praczes point to the criteria in s. 129(1)(b)(iv) and suggest that the Minister should have considered that the contractor was responsible for the spill. S. 129(1) (b)(iv) is as follows: (iv) whether the presence of the substance over, in, on or under the site was caused solely by the act or omission of an independent third party. [60] The evidence by Mr. Currie is that the contractor is denying liability and therefore the issue of who is at fault is still alive. [61] The Act stipulates the Minister “shall be guided” and “if such information is available or accessible to the Minister”. In other words, a Minister’s decision is guided by these factors “if available or accessible”. [62] Under s. 129(1)(h) the Minister is guided by what she or he considers relevant. [63] The Praczes had made their position known to Environment through their contact with John Currie and had ample opportunity to communicate their position that they considered others liable for the spill. [64] The Praczes own the property and ownership under s. 129 of the Act was a relevant fact to be considered by the Minister whether or not others were responsible as well. [65] The onus is on the Praczes. There is no evidence before this Court that the Minister has not been “guided” by the principles set out in s. 129. [66] I find that all requirements relating to the considerations in s. 129 have been met. The burden is on the Praczes to establish that the factors in s. 129 were not properly considered and in this case have failed to do so. (3) That the Praczes took all reasonable steps to prevent the spill [67] The Praczes argue that they took “all reasonable” care to ensure that their home including their oil tank was properly installed and constructed. Having done so they asked the Court to overturn the Order. [68] In Contaminated Property in Canada, edited by Leonard J. Griffiths (Carswell: Ontario, looseleaf update to July 1998), the section dealing with Nova Scotia notes: 9.3 Standards of Liability 9.3.1 Absolute Civil liability, under Ministerial orders, is generally absolute. With the exception of reference to the exercise of due diligence with respect to receivers and trustees, civil liability cannot be avoided by showing that all due diligence was exercised to prevent the release or contamination. [69] Even if I were to find that the Praczes took all “reasonable care” this will not result in the overturning of the Ministerial Order. Given that civil liability under Ministerial Orders is generally absolute there is no due diligence defence available to overturn the Order of the Minister. (4) The spill was caused because the contractor ignored industry standards [70] The Praczes suggest that the builder breached industry standards and that as a result the Ministerial Order should be made against the contractor and not the Praczes. [71] There is no evidence before me to support this allegation by the Praczes that the spill is a result of the contractors or subcontractors negligence. In fact both the contractor and the sub-contractor has denied liability. Because Mrs. Pracz suggests the oil tank support base was inadequate is of little weight. CONCLUSION [72] The Praczes have not established that there was anything patently unreasonable in the issuance of the Ministerial Orders. The Praczes fall within the definition of “persons responsible” under the Act. The fact that another party may fall within this definition or be ultimately responsible for the spill does not preclude the issuance of the Ministerial Orders. [73] The onus is on the Praczes and I have concluded that they have not discharged their burden. [74] The Praczes advised Environment of their position and their position was investigated by Environment staff. [75] The duty of fairness was met by Environment on the facts of this case. [76] The Appeal is dismissed. The appellant will have 90 days to comply with the Ministerial Orders. Environment shall have their costs in the amount of $750.00 payable forthwith. Environment is requested to prepare an appropriate Order for approval by the Court. Justice Arthur W.D. Pickup