Pinsonnault-Flinn v. Nova Scotia (Environment and Labour)

Pinsonnault-Flinn v. Nova Scotia (Environment and Labour) Court Supreme Court Date 2004-10-20 Citation 2004 NSSC 206 Docket 212837(A) Judge/Registrar/Adjudicator Edwards, Frank C. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Pinsonnault‑Flinn v. Nova Scotia (Environment and Labour) , 2004 NSSC 206 Date: 20041020 Docket: 212837(A) Registry: Halifax IN THE MATTER OF Chapter 1 of the statutes of Nova Scotia 1994-95, the Environment Act - and - IN THE MATTER OF an Order issued pursuant to the provisions of the said Act to Julie Marie Pinsonnault-Flinn of 1601-1607 Cambridge Street, Halifax, in the County of Halifax Regional Municipality, Province of Nova Scotia Between: Julie Marie Pinsonnault‑Flinn Appellant v. The Minister of Environment and Labour for the Province of Nova Scotia Respondent Judge: The Honourable Justice Frank Edwards Heard: September 16, 2004, in Halifax, Nova Scotia Counsel: Stephen Kingston and Kevin Gibson, for the appellant Stephen T. McGrath, for the respondent By the Court: [1] The Appellant appeals an Order of the Minister of Environment and Labour which requires her to clean up oil contamination on her property at her expense. [2] The Appellant, Ms. Pinsonnault-Flinn, resides at 1607 Cambridge Street in Halifax (“the Property”) which she purchased with her former husband in November of 1999 from George Havlovic (“the Vendor”). The Property contains a rental unit in addition to the principal residence. [3] Ron and Deirdre Stubbert rented the Property in August 1996. In March of 1997, a fuel oil spill occurred at the Property. At that time, two fuel oil tanks in the basement of the Property were filled in the morning. By that afternoon, the smell was so overpowering that the Stubberts had to leave the house. They contacted the Vendor’s daughter who hired a contractor to remove a cinder block wall in the basement that enclosed the two fuel oil tanks. [4] There is no evidence that the contractor had any expertise regarding oil spills. The evidence suggests that he was a general contractor who did work around the property for the Vendor from time to time. The contractor’s scope of work in March 1997 was described by him over two years later in a letter dated September 17, 1999. The contractor was apparently payed a total of $1,469.45 for his work. [5] According to the Stubberts, when the cinder block wall was removed, one of the tanks had a number of holes, approximately the diameter of a pencil, in its bottom. They claim that, in the sealed off room, there was a standing puddle of oil and that oil had seeped into the surrounding concrete. The Stubberts estimated that the incident involved the loss of 150 gallons of oil, based apparently on their assessment of the amount of fuel oil in the tanks after the leak. [6] The recollection of the contractor differs from that of the Stubberts regarding the condition of the tanks and the amount of fuel oil spilled in the area. The contractor advised that when the wall around the tanks was removed, the “tank bottom of one of the tanks was a bit wet with an occasional drop of oil every couple of minutes or so on the concrete slab on which the tanks rested”. The contractor confirmed that there was a strong smell of oil at the time but said that “there didn’t appear to be any actual puddle or accumulation of oil around the tanks”. The contractor recommended that the tanks be drained, disconnected and removed from the basement. Once this was done, he re-sealed the space. He did not consider it necessary to remove the old concrete slab or to excavate the slate bedrock underneath, as these did not appear to him to be contaminated. He noted as well that he was not in the excavation business and this was not within the scope of his work. [7] The fuel oil tanks in the basement were removed and a new tank was installed outside with a fuel oil line running exposed along the foundation on the driveway side of the house and then into the foundation wall at or near where the fuel oil tanks used to be on the inside of the basement. According to the fuel oil installer, he does not recall seeing any oil spillage in the furnace room at the time the work was done. [8] The Stubberts did not believe that all of the contamination had been removed but nevertheless continued to live in the Property until the end of July 1999. They noted that the contractor had installed a fan in the laundry room in the basement which vented out into the driveway. The fan had to remain turned on at all times, failing which oil fumes could be detected in the basement. [9] At this point, it is interesting to note that on March 13, 1997, Mr. Stubbert sent a letter to the Vendor’s agent wherein he described the extent of the problem. Mr. Stubbert says he observed the following when the wall enclosing the oil tanks was removed. “There was a standing oil puddle and oil had seeped into all of the surrounding concrete. The leak had been obviously going on for many months but reached a new threshold last week. A new tank was installed and the old tanks were pumped out and removed. One of the tanks had a number of holes come approximately the diameter of a pencil in the bottom of it. The tanks had been freshly filled on Tuesday of that week and five days later 150 gallons of oil were gone.” Further on he noted: “There has been on-going oil loss for many months which will be difficult to estimate.” And later, “There has been an oil smell outside the house for many months which would suggest seepage into the ground.” (Emphasis added) In short, Mr. Stubbert’s letter suggests that the oil leakage problem was months in duration and far exceeded the 150 gallons noted lost in March of 1997. It should also be emphasized that a copy of Mr. Stubbert’s letter was in the hands of Gerard Chisholm of the Nova Scotia Department of Environment and Labour (“DEL”) by June 24, 1999. [10] In January 1999, the Vendor decided to sell the Property. The Stubberts apparently offered to purchase the Property, subject to an environmental assessment but this was refused by the Vendor. [11] In May 1999, the Stubberts contacted the aforementioned Mr. Chisholm of DEL seeking advice on the liabilities associated with purchasing a property that was contaminated. This was the first time that DEL was informed about the March 1997 incident. [12] On May 1, 1999, the Vendor gave the Stubberts three months statutory notice to vacate the house. The Vendor claims that at that time the Stubberts advised him there was still some smell of oil and as a result, he retained the same contractor he had retained in 1997 to undertake further remedial work at the property. This work started on May 18, 1999. [13] The Vendor provided DEL with a description of the scope of the work undertaken and, among other things, this work included the removal of the old concrete slab and overburden in the area where the former fuel oil tanks had been and the replacement of the exterior fuel oil line by burying it approximately six inches below the depth of the driveway on the outside of the foundation wall and drilling a new hole, lower on the foundation wall for it to enter the building. [14] In 2002, it would become a question of whether the source of the oil contamination was the 1997 spill or whether there had been seepage from the oil line on the exterior of the building. Two points deserve emphasis. One, the fuel oil lines had been installed during the tenure of the Vendor and not during that of the Appellant. Secondly, a report dated September 6, 2002, for the Appellant’s insurer noted that when the fuel line was exposed “we found it did not have secondary containment piping and there was a flared connection coupling close to the stained area on the foundation wall. In accordance with Appliance Piping Regulations Section 3.13.4 and 3.14.5, “all underground piping must have secondary containment and all buried joints must be contained within a manhole for visual access.” In short, not only had the external fuel line been installed by the Vendor but it had been improperly installed while the property was subject to the scrutiny of DEL. [15] On June 1, 1999, Mr. Chisholm attended the property and met with Ms. Stubbert but the Vendor was not in attendance. Ms. Stubbert apparently advised Mr. Chisholm that work had been undertaken by the Vendor in May of 1999, but that only limited soil excavation had occurred in the vicinity of the former oil tank and no confirmatory soil samples had been taken to verify whether the boundary conditions of the excavation were at acceptable levels. Significantly, Mr. Chisholm found some evidence of remaining oil impacts in the soil. [16] Equally significant, the Stubberts, with permission of the Vendor, arranged for Bio-Response Systems Limited/OCL Land and Sea Limited to take soil samples on or about June 3, 1999. Two soil samples were taken from the basement of the property, one from the area where the oil tank had been and another sample taken somewhat downgrade from the location of the original tank. [17] These samples reported levels of total petroleum hydro carbon (“TPH”) of 5,000 mg/kg (or parts per million (“ppm”)) and 25,000 mg/kg respectively. These both exceeded DEL’s guidelines for residential properties of 100 mg/kg. In a letter dated June 14, 1999, Mr. Vigerstad, Ph.D., of Bio-Response Systems reported to the Stubberts: “These results indicate that, without further investigation, the precautionary approach is to assume that there is fairly extensive contamination underneath the building. To demonstrate the actual extent of the contamination will require additional and potentially extensive investigation of the soils beneath the basement floor and to the side of the property.” (Emphasis added) [18] This information was immediately forwarded to DEL by Ms. Stubbert. [19] On August 10, 1999, Mr. Chisholm wrote to the Vendor outlining the information that had been passed along to DEL by Ms. Stubbert. He also set out DEL’s request that the Vendor submit a remedial action plan describing what actions were proposed to address the exceedances to the soil remediation guidelines. [20] A field inspection report reveals that Mr. Chisholm and the Vendor met on August 25, 1999 to discuss the matter. The Vendor was requested to assess the soil conditions under the bathroom adjacent to the former tank location to see if environmental impacts were limited in nature. The Department requested that the Vendor retain the services of an environmental consultant to attend to this. The Department also asked for information concerning the initial cleanup work that had been conducted. [21] On September 27, 1999, the Vendor sent a package of materials to the Department responding to Mr. Chisholm’s earlier letter and the Field Inspection Report and requesting that the file be closed. This package included the letter from the contractor regarding the work done in March 1997 and specifications for the work started on March 18, 1999, in addition to which the Vendor noted the application of certain rinsing agents. The package also included a letter from the tank installer, the 1997 tank replacement (which of course was done after the area had been cleaned up by the Vendor’s contractor). The package also contained a report dated September 15, 1999, from the environmental consultant retained by Mr. Havlovic, EARTHTech Engineering Limited. [22] In the EARTHTech report, G.A. McBeath, M.A.Sc.,P.Eng., reports that one test pit was dug beneath the basement floor in the bathroom area of the Property on September 2, 1999. Mr. McBeath noted that this area was selected because it was downgradient of the area where the former fuel oil tanks existed and because the floor slab in the laundry room contained in-floor heating coils. The test pit was about 16 inches deep extending from beneath the floor slab in the basement to bedrock. The environmental consultant reports that a composite soil sample was obtained from the test pit and analyzed for hydrocarbons. The soil analysis was reported to have been “non-detectable”. [23] In addition, Mr. McBeath reported that visual and tactile examination of the basement area revealed no hydrocarbon odours and no signs of any residual contamination (i.e. staining, residue-free product), and that vapour emissions from the test pit recorded using a GasTec metre also reported “non-detectable” for hydrocarbons. Based upon this sampling and testing of the Property and observations made, Mr. McBeath was of the opinion that residual contamination was not present in the subfloor materials within the area of the former spill. [24] There are several obvious problems with the manner in which the remediation work was carried out by the Vendor with the tacit, or at least subsequent, approval of Mr. Chisholm and DEL. First and foremost, the remediation work carried out by the Vendor was not done under the supervision of a qualified environmental site professional. EARTHTech was called in by the Vendor only after the remediation work the Vendor had specified had been carried out by the Vendor’s contractor. That work included digging up the concrete slab in the floor of the basement area, removing the overburden below the slab and removing the soft shale slate working downwards to the floor level of the existing laundry room. When that excavation was complete, the contractor was then instructed to pour the four inch concrete floor ... “to be perfectly flush with the existing concrete slab”. [25] On the outside of the basement wall, the Vendor had specified that the oil line which had run exposed along the wall was to be buried in a six inch trench close to the foundation wall and bury the oil pipe at least five inches below the grade of the asphalt driveway. I would think it apparent that an environmental site professional ought to have been present when both the interior and exterior excavation were still open. Because of the limited depth of the trench dug on the outside of the wall, an environmental specialist would also have had the opportunity to dig further test pits in that area. Instead, as the September 15, 1999, EARTHTech report clearly indicates, their investigation was limited to the excavation of just one test pit beneath the basement floor of the bathroom area. That was done after the concrete slab had been re-poured in the critical area. EARTHTech had no real opportunity to assess the extent of the spill or the adequacy of the cleanup. [26] The EARTHTech report also contains this sentence: “Reportedly, the spill was of small volume and isolated to the basement bathroom and laundry room.” Apparently, EARTHTech were not aware that 150 gallons had apparently leaked in March of 1997 and that significant leakage had been noticed by the Stubberts in the months preceding March 1997. Nor is there any reference in the EARTHTech report to the Bio-Response report dated June 14, 1999. Presumably, therefore, EARTHTech was not aware that very significant contamination had been found by professionals just three months earlier and that “potentially extensive investigation of the soils beneath the basement floor and to the side of the property” had been recommended at that time. [27] Despite the apparent limitations of the EARTHTech report, the evidence of the Stubberts, the Bio-Response report, and his own observations, Mr. Chisholm on behalf of DEL was prepared to sign off on the file. On October 5, 1999, Mr. Chisholm prepared a draft letter which he apparently reviewed with the Vendor. At the Vendor’s request, the following was removed from the last sentence on page one of the October 5, 1999 draft: “... since analytical results of soil conditions under the former tank location identify exceedances of the Nova Scotia Department of the Environment Soil remediation criteria for a residential site that ...”. (Emphasis added) The final sentence of the letter that the Vendor received from Mr. Chisholm on October 6, 1999 reads: “Also, the Department requests that this information be disclosed to any potential purchasers of the property.” There is no reference to the “exceedances” previously recognized by Mr. Chisholm. [28] The October 6, 1999 letter made only passing reference to the Bio-Response/OCL Land and Sea Limited report but laid heavy emphasis on the September 15, 1999 EARTHTech report. The letter implies DEL’s complete satisfaction with the Vendor’s cleanup and states “no further remedial action at the site is required at this time”. [29] With respect, a prudent buyer of the Vendor’s property would not be alerted to a need for further investigation by the October 6, 1999 letter. On the contrary, a potential buyer would be assured that any problem which had existed had been remedied to the satisfaction of an environmental site professional and that DEL was fully satisfied with that opinion. The notation in the second last paragraph of the October 6, 1999 letter that all information would be available through the Freedom of Information Act really adds nothing to the foregoing. A prudent buyer would have no reason to suspect that there was a far more serious problem than that which the October 6, 1999 letter said had already been appropriately dealt with. A prudent buyer would consider a FOIA application pointless. [30] The Appellant and her former husband purchased the property in November 1999. Prior to doing so, the Vendor provided the Appellant with a copy of the Department’s letter of October 6, 1999 and a copy of the EARTHTech report dated September 15, 1999. The Appellant also had a property inspection done by a home inspection company on or about October 13, 1999. I am satisfied that the home inspection company cannot be faulted for not going behind the October 6, 1999 letter or the EARTHTech report. [31] At any rate, the Appellant confirms that at the time she moved into the property there was no observable staining on the foundation and no fuel oil smell in the basement. Presumably, the fan installed in 1997 to exhaust the oil smell was still in operation. [32] On July 30, 2002, DEL was contacted by Irving Oil after the Appellant’s tenant had reported an oil smell to them. On the advice of the DEL representative, the Appellant contacted her insurance company who in turn retained Strum Environmental Services Limited (“Strum”). In its report dated August 28, 2002, Strum noted that they had located the copper supply line next to the north foundation wall located approximately 3 inches below the surface of the driveway’s asphalt. Strum noted that the copper supply line itself had showed no signs of perforations or crimps and there was no oil observed around the supply line next to the house until the asphalt at the location of the foundation surface was uncovered. This area was saturated by oil and, according to the Strum report, “The oil loss appeared to be coming from a flair fitting that joined the exterior supply line to the interior supply line”. [33] According to the Report, Strum dug a test pit beneath the driveway at the location where the oil loss occurred to a depth of approximately 3 feet, 4 inches, where bedrock appeared to be present. Strum described a “moderate to strong hydrocarbon odour ... detected along the sides and base of the test pit.” Strum took two soil samples from the side ad base of the test pit for total petroleum hydrocarbon analysis and a composite soil sample to analyze for metals and polycyclic aromatic hydrocarbons. The samples tested for TPH reported results of 31,000 mg/kg (from the side wall) and 6,300 mg/kg (from the bottom of the test pit). [34] Strum then retained R. Fraser Construction Ltd. (“Fraser”) to excavate, expose and air test the abandoned copper fuel oil line. In a brief report prepared by Fraser, they confirmed having completed this work and also noted the existence of a flared connection coupling close to the stained area on the foundation wall. However, following a pressure test of the line over a two hour period, they reported that the line did not lose any pressure. Details of the exact procedures used for the pressure test are not set out in Fraser’s Report. [35] The Appellant’s insurance company subsequently pressed Strum to provide an opinion on the extent of any “weathering” in an attempt to determine how long the fuel oil would have been present in the soil. While Strum noted that some weathering had taken place, the Appellant’s insurance company was cautioned that the issue of weathering was not clearly defined and “would not present enough evidence that the fuel oil has been present in the soil for an extended period of time”. [36] The Appellant commissioned another pressure test of the abandoned fuel oil line on the Property and it was reported that the “tank and the line maintained a consistent pressure of 5 psi and 40 psi, respectively for a one and a half hour time period.” There is a suggestion in the report of Paul Carrie (discussed below) that a “vacuum” test would have been more reliable than a pressure test. If that is so, the fuel line improperly installed by the Vendor may well have been leaking and the problem undetected because of the unreliability of the pressure tests. [37] Thereafter, numerous pieces of correspondence were exchanged between the Appellant and the Department. Throughout this correspondence, the Appellant reiterated her position that the contamination at the property is a result of the March 1997 fuel oil spill and that the Department should require the former owner to address the problem. [38] At some point in the spring of 2003, the Department had one of its employees, Paul Currie, CET, Environmental Inspector Specialist, review the Department’s file, attend the Property, meet with the Appellant and prepare a report and recommendation. Mr. Currie’s report is dated April 11, 2003. [39] On the first page of his report, Mr. Currie states the following: “If the owner continues to press the Department to get the previous owner to clean up the property, it will likely take months, if not years to get the issue resolved, as it would most certainly involve legal action and court proceedings. In the interim, the tenants of the apartment unit will be exposed to hydrocarbon.” He then goes on to advise that the Appellant be directed to either seal off the basement apartment unit and/or initiate cleanup action at her own expense. [40] The passage is probably a recognition that at that stage the Department could not realistically name the previous owner in the Ministerial Order. After all, the Department, as of October 6, 1999, had told the previous owner that it was satisfied with his cleanup of the property and that “no further remedial action at the site is required at this time”. By April 11, 2003, when Mr. Currie wrote his report, the Department really only had two options; name the Appellant as the person responsible or admit that it had made a huge mistake by letting the previous owner off the hook. Mr. Currie’s report effectively eliminated the second option. [41] Mr. Currie’s report does contain the following observations: “... it is important to note that it is apparent from the file that essentially no clean-up activities took place when the leak was uncovered in 1997. The tanks were simply taken out and replaced with a tank outside. This is confirmed by the contractor himself in his signed letter of September 17, 1999.” [42] The report continues: “Prior to the department becoming involved in June of 1999, the owner apparently hired the same contractor (in May of 1999) to go back and physically remove the concrete slab in the basement where the tanks formerly sat and to remove soil and rock beneath where the tanks once stood.” [43] After reviewing some of the work specified by the Vendor to the contractor, Mr. Currie made the following observations: “The tank that was installed in 1997 to replace the leaking tanks was placed outside and had an exposed oil line running along the foundation above the asphalt. Between May 18 and July 31, 1999, the contractor worked in the area of the lines, both inside and more importantly outside. In fact, the contractor would have needed to cut the line on the outside in order to bury it the specified 5 inches and run it through the new hole he drilled through the concrete. A potential for a spill to occur while this work was conducted is certainly a possibility.” [44] In short the above-quoted evidence referred to by Mr. Currie is consistent with oil contamination during the time of the previous owner and not after the Appellant took possession of the property. In addition, Mr. Currie might have referenced the fact that the contractor who was hired in 1999, being the same fellow who was hired in 1997, is the same fellow who said that “I am not in the excavation business”. Mr. Currie could further have referenced the fact that the oil line which was installed was not inside secondary containment piping and therefore was high risk. [45] Mr. Currie should also have considered that, on its face, the evidence of the Stubberts ought to have been preferred to that of the contractor. The Stubberts’ evidence was contemporaneous with the events in question. The contractor’s evidence was based on his recollection of events almost two years later. There is also the possibility that the contractor’s recollection might favour the Vendor who had from time to time provided the contractor with employment. [46] As previously noted, the Bio-Response findings on June 14, 1999, should have been of particular concern to DEL having been taken just three months before EARTHTech found no residual contamination. In his report, Mr. Currie is dismissive of the Bio-Response testing results noting that it would appear that the samples may have been taken before the Vendor’s May 1999 cleanup. There is no evidence that he attempted to contact the author of the Bio-Response report to make that inquiry. [47] Mr. Currie’s conjecture that the Bio-Tech samples had been taken before the cleanup also appears to be contrary to Mr. Chisholm’s perception. In his letter of August 10, 1999 to the Vendor, Mr. Chisholm stated the following: “Following the limited soil excavation, Ms. Stubbert hired an environmental consulting firm to acquire soil samples from the basement area in the vicinity of the former above-ground furnace oil tank location to confirm boundary conditions.” Further, in a letter dated April 22, 2003 (11 days after Mr. Currie’s report was written), Ms. Stubbert said in a letter to the Appellant that the Bio-Tech soil samples were taken after the excavation because “we again felt that he did not remove enough”. [48] Mr. Currie notes that the EARTHTech report of September 15, 1999, was the basis for the Department closing the site on October 6, 1999. In Mr. Currie’s view, DEL acted appropriately in doing so. He identified none of the deficiencies of the EARTHTech report I have earlier discussed. He continues: “Clearly, the intent of the October 6, 1999 letter was to provide as much factual and site information as possible and to ensure that this information was disclosed to potential purchasers of the property, as per the direction in the last line of page one of the letter.” (Emphasis added) [49] This is a startling statement for Mr. Currie to have made in view of the deletion relating to “exceedances” from the October 5, 1999 draft letter. Mr. Currie goes on to amplify his view that the potential purchaser must exercise due diligence: “To ensure for themselves that the spill, or any other environmental issue that could be on the site, has been addressed... it appears from the file that the current owner relied solely on the October 6, 1999 letter from the Department, which identified the facts in this case, i.e. the Bio-Response and EARTHTech sampling results).” [50] I have already related my view that it was perfectly reasonable for the Appellant to have placed reliance upon the October 6, 1999 letter. [51] In his report under Summary and Conclusions, Mr. Currie states the following: “It is apparent from the findings detailed in this report that a separate release has occurred in the area where the oil line enters the home, unrelated to the actual 1997 oil tank leak. The leak in this area must have occurred sometime between 1997 and 2002, without the Department’s knowledge until now.” [52] With respect, it is irrefutable on the evidence that no proper clean-up was conducted in either 1997 or in 1999. The DEL erroneously seized upon the opinion of the author of the EARTHTech report without sufficient regard for the limitations of that investigation or the pre-existing evidence of significant contamination. Even if one were to accept Mr. Currie’s opinion that a separate release occurred between 1997 and 2002, it is clear that such leakage would likely have been caused by the improperly installed fuel line put in place by the previous owner while he was under DEL’s scrutiny. [53] That may be one explanation for why no staining or odour was detected between November 1999 and July 2002. It is conceivable that such leakage would not be apparent at the surface for months or even years after it began. In any case, there is not one shred of evidence that the Appellant caused or contributed to the oil contamination. In the face of the available evidence, it is unfathomable that DEL would conclude that there was insufficient evidence to find that the Vendor was even partially responsible. But the record is clear that, following the Currie report, that is exactly how the DEL proceeded. [54] In a letter dated May 27, 2003, for example, the district manager of the Department wrote to the Appellant and stated as follows: “This review has been completed, and as a result it is concluded that insufficient information currently exists to adequately demonstrate that the previous owner is solely, or partially responsible for the oil impacts that have been discovered beneath the area where the fuel line once entered the foundation of the home.” The same statement was repeated in a second letter dated July 28, 2003 to the Appellant by the acting district manager of the Department. [55] Further in a briefing note for the Deputy Minister dated August 29, 2003, Department staff stated the following: “Based on Mr. Fanning’s opinion (the DEL solicitor), DEL in May of 2003 wrote to Ms. Pinsonnault indicating that the review by our department solicitor had been completed and that there was insufficient evidence or information to name the previous owner.” [56] Then on October 12, 2003, in a briefing note to the Deputy Minister, staff again repeated the view that there was insufficient evidence or information to name the previous owner. [57] Finally on November 3, 2003, the senior departmental manager in a memo to the Deputy Minister recommended a Ministerial Order be issued against the Appellant. The author noted: “There is insufficient information to demonstrate that the previous owner of the property is solely or partially responsible for the oil impacts that have been discovered beneath the area where the fuel line once entered the foundation of the dwelling”. Accordingly on November 21, 2003, the Ministerial Order was issued directing the Appellant to remediate the Property. Clearly the order was issued on the basis that the Appellant and not the previous owner had caused or contributed to the oil contamination. [58] ISSUE: Should the Ministerial Order be set aside? [59] LAW: The present appeal is brought pursuant to section 138 of the Act, which provides that: (1) Subject to subsection (2), a person aggrieved by [...] (g) an order, may, within thirty days of the decision or order, appeal on a question of law or on a question of fact, or on a question of law and fact, to a judge of the Supreme Court, and the decision of that court is final and binding on the Minister and the appellant, and the Minister and the appellant shall take such action as may be necessary to implement the decision. [60] The Notice of Appeal filed on behalf of the Appellant sets forth the following grounds of appeal: (i) that it is an unreasonable exercise of the Minister’s powers under the Act to issue the Order; (ii) that the Department’s statement of the facts is erroneous in that only one oil spill occurred; and (iii) that, in the circumstances, the Order is unfair to the Appellant and is therefore an abuse of the Minister’s powers under the Act. The first and third of these grounds involve the question of the proper exercise of administrative discretion and may be considered together. The second ground raises the discrete question of the factual basis on which the Ministerial Order was issued and will be addressed first. [61] ERROR OF FACT: The foundation of the Ministerial Order is the factual determination that the contamination of the Property originated with the Appellant. That determination is plain on the face of the Order itself, which specifically states that the Minister “believes on reasonable and probable grounds that [the Appellant] has contravened the Environment Act” and recites the sections of Part VI of the Act, entitled the “Release of Substances”, which prohibit the release, or permission of release, of a substance that may have an adverse environmental effect: 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. 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 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 effect of the substance, and (ii) take any other measures required by an inspector or an administrator; and (b) take any other measures required by an inspector or an administrator; and (c) rehabilitates the environment to a standard prescribed or adopted by the Department. Interpretation 3 In this Act, ak) “person responsible” means (I) the owner of the substance or thing, (ii) the owner or occupier of land on which an adverse effect has occurred or may occur, (iii) a previous owner of the substance or thing, (iv) a person who has or has had care, management or control, including care, management and control during the generation, manufacture, treatment, sale, handling, distribution, use, storage, disposal, transportation, display or method of application of the substance or thing, (v) a successor, assignee, executor, administrator, receiver, receiver manager or trustee of a person referred to in subclauses (I) to (iv), or (vi) a person who acts as the principal or agent of a person referred to in subclauses (I) to (v); (Emphasis added) [62] The DEL consistently maintained that “there is insufficient evidence to name the previous owner as the party responsible” and advised the Appellant of this conclusion in writing. As I have noted, there is no basis in fact for the determination that the Appellant ever released or permitted the release of contaminants at the Property. [63] STANDARD OF REVIEW: The standard of review to be applied on appeal from an Order issued pursuant to the Act was recently considered by this Court in Nova Scotia (Minister of Environment and Labour) v. Pracz, [2004] N.S.J. No. 107, where Pickup J. stated at para. 21 ff: “Recent decisions of the Supreme Court of Canada instruct Courts reviewing administrative decisions to take a ‘functional and pragmatic approach’ to the task. 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. 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. The classification into the appropriate standard of review is to be based on the ‘pragmatic and functional approach’ set out in Pushpanathan, supra.... 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.” (Emphasis added) [64] The nature of the ‘patent unreasonableness’ standard was considered by the Supreme Court of Canada in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] S.C.J. No. 116, where Iacobucci J., writing for the Court, stated at para. 57: “The difference between ‘unreasonable’ and ‘patently unreasonable’ lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, ][i]n the Shorter Oxford English Dictionary ‘patently’, an adverb, is defined as ‘openly, evidently, clearly’. That is not to say, of course that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. See National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at. 1370, per Gonthier J.; see also Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 47, per Cory J. But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.” (Emphasis added) [65] The standard was again considered in Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17, where Iacobucci J., again writing for the Court, stated at para. 52: “The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam, supra, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted ‘in the immediacy or obviousness of the defect’. Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective.” (Emphasis added) [66] Where there is some evidence that can be said to support a finding of fact, generally the court will not interfere with the finding in question; where there is no such evidence it will be quashed. Indeed, even where the finding of fact made by an administrative decision maker may not have been required by the terms of the enabling statute, once it has decided that a particular fact is relevant to its decision, there must be some evidence to support the conclusion reached relating to it. For example, in Quebec (Attorney General) v. Canada (National Energy Board), [1994] S.C.J. No. 39, the Supreme Court of Canada considered an appeal from a judgment severing certain conditions from the licences for the export of electricity granted by the National Energy Board. The appellants had argued that the Board did not properly conduct the required cost‑benefit review, and that there was insufficient evidence before the Board for its conclusion that the consideration of cost recoverability was satisfied. Iacobucci J., writing for the Court, stated at paras. 21‑22: “It appears that both the Canadian Electricity Policy, September 1988, and the Board’s own internal report, entitled The Regulation of Electricity Exports, June 1987, interpret this requirement to mean that all direct and indirect costs, including environmental, land use, and economic costs (‘social costs’), should be considered. However, I need express no opinion on the correctness of these interpretations or on whether the requirement in the regulations that the applicant for a licence furnish such evidence also means that the Board is required to consider it.... In this case, it is clear that the Board considered that evidence of the of the nature and recoverability of such costs was relevant to its decision.... While the respondents are correct in asserting that the principle of curial deference applies to the weighing of the evidence by the Board in the exercise of its discretion, this principle cannot be invoked to save a decision for which there is no foundation in the evidence or that is based on irrelevant considerations. Once the Board decides that a particular factor is relevant to its decision, there must be some evidence to support the conclusion reached relating to it. The Board must not act unreasonably in evaluating the evidence it requests to make its decision: Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722.” (Emphasis added) [67] The Minister has suggested that no factual determination of responsibility for the spill was necessary. But this is clearly what was done. It was never suggested to the Appellant that the Order was issued on any other basis than the fact that the spill originated during her ownership of the Property. However, apart from the bare assertion that there was insufficient evidence to attribute responsibility to the Vendor, and in spite of the Appellant’s repeated requests for an explanation of the Department’s conclusion, no evidence of the spill originating with the Plaintiff was ever produced. The Appellant’s insurer has declined to provide coverage on the basis that all of the evidence supports the conclusion that the current contamination originated with the Vendor. [68] The evidence demonstrates that by the time the tenants’ complaints were given serious attention by the Vendor, a substantial quantity of oil had leaked from the oil tanks concealed behind the walls. When the walls were finally removed, a “standing oil puddle” was visible, and oil had leaked into the surrounding concrete. The tanks, which had been freshly filled, had lost 150 gallons of oil and there is evidence that there had been leakage in the proceeding months. [69] The spill was never reported by the Vendor to the DEL, and when the Property was examined by the Department’s inspector, Gerard Chisholm in 1999 (before the Appellant purchased it, but after the work purported to have been carried out by the Vendor in May, 1999), he found “evidence of remaining impacts in the soil”. One test pit was dug beneath the basement floor in the area of the bathroom in September, 1999, and an analysis of one sample indicated “non‑detectable levels of hydrocarbons”. Yet correspondence from the Department reveals that soil sampling conducted on June 3, 1999 (again, after the work purported to have been carried out by the Vendor in May) under the former fuel tank “identified hydrocarbon impacts at levels which exceeded the Nova Scotia Department of the Environment’s Soil Remediation Criteria for a Residential Site”. Of particular significance is the fact that reference to these “exceedances” of the Soil Remediation Criteria was made in correspondence from the Department in October, 1999 (again, after the work purported to have been carried out by the Vendor), but removed at the request of the Vendor. [70] There could be no clearer evidence of an absence of factual basis for the decision to issue the Order than is disclosed by the background of the present appeal. Although Justice Iacobucci in Southam, supra, contemplated the possibility that “a great deal of thinking and reading” may be necessary for a determination of patent unreasonableness, even the most cursory examination of this background reveals the overwhelming evidence that the spill originated during the Vendor’s ownership of the Property. [71] A factual determination that the spill originated with the Appellant was made by the DEL; this is evident on the face of the Order and, more particularly, in DEL’s conclusion that there was insufficient evidence to attribute responsibility for the spill to the Vendor. There was no basis for that factual determination. In these circumstances, that determination is patently unreasonable and the Order should be set aside. [72] Unlawful Exercise of Administrative Discretion: The first and third grounds of appeal assert the unreasonableness of the exercise of Ministerial discretion in these circumstances. It is clear that where such administrative action involves an arbitrary, unfair or capricious exercise of discretion it may be set aside by the Court. In the leading case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39, L’Heureux‑Dubé, writing for the Court, at para. 53: “Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision‑makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: see, for example, Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7‑8; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. A general doctrine of ‘unreasonableness’ has also sometimes been applied to discretionary decisions: Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation, [1948] 1 K.B. (223 (C.A.). In my opinion, these doctrines incorporate two central ideas ‑ that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision‑makers by courts in reviewing the exercise of that discretion and determining the scope of the decision‑maker’s jurisdiction. These doctrines recognise that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision‑makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121], in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038).” (Emphasis added) [73] Failure to Consider Relevant Factors: The discretion conferred upon the Minister in the issuance of the Order is not unlimited. Indeed, Section 129 of the Act specifically requires the Minister to consider several factors when deciding whether to exercise the discretion to issue an Order: “(1) In deciding whether to issue an order pursuant to this Part, the Minister shall be guided by the following considerations, if such information is available or accessible to the Minister: (a) when the substance became present over, in, on or under the site; (b) in the case of an owner, occupier or operator, or previous owner, occupier or operator of the site (I) whether the substance was present over, in, on or under the site at the time that person became an owner, occupier or operator, (ii) whether the person knew or ought reasonably to have known that the substance was present over, in on or under the site at the time that person became an owner, occupier or operator, (iii) whether the presence of the substance over, in, on or under the site ought to have been discovered by the owner, occupier or operator had the owner, occupier or operator exercised due diligence in ascertaining the presence of the substance before the owner, occupier or operator became an owner, occupier or operator, and whether the owner, occupier or operator exercised such due diligence, (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, (v) the economic benefits the person may have received and the relationship between that price and the fair market value of the site had the substance not been present over, in, on or under it; (c) in the case of a previous owner, occupier or operator whether that person disposed of the interest in the site without disclosing the presence of the substance over, in, on or under the site to the person who acquired the interest; (d) whether the person took all reasonable care to prevent the presence of the substance over, in, on or under the site; (e) whether a person dealing with the substance ignored industry standards and practices in effect at the time or complied with the requirements of applicable enactments in effect at the time; (f) whether the person contributed to further accumulation or the continued release of the substance on becoming aware of the presence of the substance over, in, on or under the site; (g) what steps the person took to deal with the site on becoming aware of the presence of the substance over, in, on or under the site; (h) any other criteria the Minister considers to be relevant.” (Emphasis added) [74] Section 2 of the Act specifically provides that: “The purpose of this Act is to support and promote the protection, enhancement and prudent use of the environment while recognizing the following goals: [...] (c) the polluter‑pay principle confirming the responsibility of anyone who creates an adverse effect on the environment to take remedial action and pay for the costs of that action.” [75] Unlike the circumstances of the Pracz case, supra, where there was no question that the oil contamination occurred during the appellants’ ownership of the property, the evidence here clearly shows the contamination to have originated during the Vendor’s ownership of the Property, and that it was not properly remediated at that time. The Order issued against the Appellant is grossly disproportionate to the legislative factors which the Minister is required consider, the majority of which clearly militate against issuance of the Order against her and favour issuance of the Order against the Vendor. It is also contrary to the goal of the statutory framework that the polluter should pay the costs of remedial action. [76] The failure to take account of relevant considerations has been found to constitute grounds for review of a decision. For example, in Danson v. Alberta (Labour Relations Board), [1983] A.J. No. 782 (Alta. Q.B.), notwithstanding the “patent unreasonableness” standard of review, the Court quashed a decision of the Alberta Labour Relations Board where it failed to take into account relevant factors when it dismissed the complaint of an applicant without considering evidence advanced by the applicant. There, Wachowich J. stated at para 14 ff.: “The argument is that the Board failed to take this extremely relevant evidence into consideration. The applicant is not arguing that given this evidence the Board’s decision cannot be supported for that would clearly be asking this court to re‑try the complaint on the merits. The argument is that the error complained of, if established, is a jurisdictional defect. That is, the Board empaneled to hear this complaint failed to exercise their jurisdiction by not hearing relevant matters. If the record supports this ground of attack, there is no doubt that this court would be authorized to set aside the Board’s decision. Authority for the proposition is in the House of Lords’ decision in Anisminic v. Foreign Compensation Commission, [1969] 1 All E.R. 208. There is even more direct authority, however, in the dicta of Dickson, J., in Services Employees International Union Local 333 v. Nipawin District Staff Nurses Association (1973), 41 D.L.R. (3d) 6 (S.C.C.), (at 11‑12), where he states: ‘A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it. If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the courts: Anisminic Ltd. v. Foreign Compensation Comm’n et al., [1969] 1 All E.R. 208; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board et al., supra; R. v. Quebec Labour Relations Board, ex p. Komo Construction Inc. (1967), 1 D.L.R. (3d) 125, [1968] S.C.R. 172.’ This statement in my view remains good law notwithstanding the recent line of cases which have established ‘patently unreasonable’ as the standard of reviewing the decisions of administrative tribunals protected by privative clauses: A.U.P.E. Branch 63 v. Alta. P.S.E.R.B. and Board of Governors of Olds College (1982), 37 A.R.; 42 N.R. 559 (S.C.C.); Teamsters Union Local 938 v. Massicotte (1982), 134 D.L.R. (3d) 385; 44 N.R. 340 (S.C.C.); and Suncor Inc. v. McMurray Independent Oil Workers Local 1, [1983] 1 W.W.R. 604; 42 A.R. 166 (Alta. C.A.). These latter cases dealt with mere error of law on the face of the record and not with jurisdictional infirmity, as here. Moreover, the failure of a decision‑making body to consider relevant factors can be ‘patently unreasonable.” (Emphasis added) [77] The principle was considered at length by the Supreme Court of Canada in Oakwood Development Ltd. v. St François Xavier (Rural Municipality), [1985] 2 S.C.R. 164, where Wilson J. writing for the Court, stated at para. 15 ff.: “There are no allegations of bad faith or discrimination in this case. The question before the Court, in essence, is whether the Council exercised its discretion ‘according to law’ and in accordance with proper principles reflected in the ‘policy and objects of the [governing] Act’: per Lord Reid in Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 at pp. 1030, 1034. More specifically, was it entitled to consider the potential flooding problem and make it the ground of its decision to refuse approval of the subdivision? As Rand J. said in Roncarellli v. Duplessis, [1959] S.C.R. 121, at p. 140, any discretionary administrative decision must ‘be based upon a weighing of considerations pertinent to the object of the administration’. For the reasons already given I am of the view that the Council was entitled to take the flooding problem into consideration. The issue does not, however, end there. As Lord Denning pointed out in Baldwin & Francis Ltd. v. Patents Appeal Tribunal, [1959] A.C. 663, at p. 693, the failure of an administrative decision‑maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration. In R. v. Paddington Valuation Officer, ex parte Peachey Property Corp. Ltd., [1966] 1 Q.B. 380 (C.A.), where a property owner applied for a quashing of what was alleged to have been an erroneous municipal tax assessment, Danckwerts L.J. noted at p. 414: ‘In order to succeed in their application for an order of mandamus and certiorari, the appellants have to show that the valuation officer of the borough council has gone wrong in law in such a way as to render the valuation lis invalid, because he has taken into consideration matters which were not proper to be regarded, or has omitted to consider matters which were of direct importance in ascertaining the values to be put upon the hereditaments.’ The respondent municipality, therefore, must be seen not only to have restricted its gaze to factors within its statutory mandate but must also be seen to have turned its mind to all the factors relevant to the proper fulfilment of its statutory decision‑making function.” (Emphasis added) [78] In the circumstances of the present case, the statutory factors by which the Minister shall be guided in the exercise of his discretion, supra, clearly militate against issuance of the Order against the Appellant. An application by the Minister of those factors to the evidence in this case reveals that his discretion was improperly exercised against her. [79] Unreasonableness: There is also a general residual ground of review for abuse of discretion where a result is produced that is so unreasonable that no reasonable authority would have reached it. This so‑called Wednesbury standard of review arose from the judgment of Lord Greene A.R. in Associated Provincial Picture Houses v. Wednesbury Corporation, [1948] 1 K.B. 223, where his Lordship stated at page 229: “Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J., I think it was, gave the example of the red‑haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense, it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all these things largely fall under one head.” [80] This review has been exercised by the Court in Nova Scotia. In N.S. Forest Industries v. N.S. Pulpwood Marketing Board, [1975] N.S.J. No. 368, the Nova Scotia Court of Appeal set aside the registration of an association as bargaining agent for woodlot owner, which supplied only 6.8% of the pulpwood supplied to the mills in the province. In that case, to certify the association amounted to unreasonableness in the Wednesbury sense. There, Coffin J.A. stated at para. 101 ff.: “The question raised by this point is whether there was here an abuse of the jurisdiction in a manifestly unreasonable decision. De Smith on Judicial Review of Administrative Act (3rd ed.) at p. 350 suggests that certiorari does not issue solely because a tribunal’s final discretionary decision was unreasonable, but under those circumstances the aggrieved party can obtain a declaration that the decision was invalid and certiorari might issue in a proper case. Halsbury’s Laws of England (4th ed.) vol. 1, p. 72 is to the same effect: ‘A tribunal arriving at a manifestly unreasonable decision has not necessarily exceeded its jurisdiction; but it may be held to have done so if the unreasonableness is a consequence of taking irrelevant considerations into account, failing to have regard to relevant considerations or addressing itself to and answering the wrong question.’ Examples of unreasonableness, include the failure of one exercising discretion to ‘direct himself properly in law’, to ‘ call his own attention to the matters which he is bound to consider’, and to exclude irrelevant considerations ‑ ‘something so absurd that no sensible person could ever dream that it lay within the powers of the authority’. (Lord Greene A.R. in Associated Provincial Picture Houses Limited v. Wednesbury Corporation, [1948] 1 K.B. 223, at p. 229).” [81] In the present appeal, the Appellant has been unable to rent the basement of the Property on a permanent basis because of the persistent effects of the 1997 spill. She has no assets beyond any equity she now has in the Property and is financially incapable of paying for the clean‑up of the spill, which occurred before she purchased the Property. She has already expended substantial amounts of money to investigate the cause of the spill. These investigations fortify the conclusion of her insurer that only one spill occurred at the Property and that spill occurred before she acquired it. To require her to bear the cost of implementing a Remedial Action Plan pursuant to the Order would effectively terminate her ability to continue to reside at the Property, care for her family and continue her employment, and is contrary to the goals of the very legislative scheme under which the Order was issued. [82] The Minister has suggested that he need not be concerned with questions of the civil liability of the party responsible for the contamination, and that it is not this Court’s task to determine civil liability for the contamination, for which the civil remedies remain undisturbed pursuant to section 141 of the Act. It is certainly the Minister’s discretion to determine the best way in which to address the problem of contamination, as set forth above. However, that discretion must be exercised in conformity with the overarching objectives of the statutory scheme and the numerous factors which must be weighed before issuing an Order. Those considerations require that discretion be exercised in a manner consistent with the “polluter‑pay” principle explicitly stated in section 2 of the Act, and require the Minister to give consideration to when the contamination occurred, and who was responsible for the contamination. The decision of a Minister to issue a Ministerial Order is not to be made in a vacuum. It is not a tenable suggestion in these circumstances that the presence of other options ‑ even better options ‑ is irrelevant. The issuance of the Order against the Appellant cannot rationally be supported by the relevant legislation; it is patently unreasonable and should be set aside. [83] Conclusion: The Appeal is allowed and the Ministerial Order is set aside. Had I the authority to do so, I would order DEL to clean up the Appellant’s property at DEL’s expense. Further, I would order DEL to reimburse the Appellant for any lost rental income. Hopefully, DEL will recognize that what I have just suggested is the honourable course of action and will proceed accordingly. [84] The Appellant shall have her costs taxed by me on a solicitor-client basis. She will also recover her reasonable disbursements. Counsel for the Appellant should simultaneously submit their account to the Respondent and to me within ten (10) days of the receipt of this decision. The Respondent may then submit its comments on the account in writing to the Appellant and to me seven (7) days after receipt. The Appellant may then submit a brief written reply five (5) days after that. J.