Rubin v MOECC: Balancing Environmental Protection And Financial Hardship

When the Ontario Ministry of the Environment and Climate Change (MOECC) orders businesses or individuals to complete work required to protect the environment, the costs to comply can lead to financial hardship for those ordered. If those ordered cannot afford to complete the work, leaving a site partially remediated, the MOECC may be forced to complete the work itself at taxpayers' expense.

How should Ontario's Environmental Review Tribunal balance environmental protection and financial hardship?

The Tribunal had to strike this balance in Rubin v Ontario (Environment and Climate Change).1 The Tribunal found that ordering individuals to complete the work, where those individuals cannot afford to complete the work, does not benefit the environment. In these circumstances, the Tribunal can make recommendations to the MOECC Director to look to others, not included in the Director's Order, to protect the natural environment.2

Background

From the late 1950s to the 1990s, Harry Rubin & Son Ltd. operated a metal recycling business in St. Catharines, Ontario. In the 1990s, under MOECC Director's Instructions, the company had PCB and other waste transported to and stored at its property in Thorold, Ontario (the "Property").

In 2012, the MOECC Director alleged that Allan, Howard and Ronald Rubin (the "Rubins") had management and control of the waste stored at the Property and ordered the Rubins to remove and dispose of waste stored at the Property, including PCB waste, and provide financial assurance. The MOECC Director relied on the fact that the Rubins were former directors and officers of the company in issuing the Director's Order. The MOECC Director also named the company, now owned by a Trust, and the Trustee of the Trust. The Rubins appealed the Director's Order to the Tribunal. The company and Trustee, who vacated her position, did not appeal.

The Rubins issued a Notice of Allegation concurrently with their appeal. The Tribunal's "Rules of Practice and Practice Directions" require Notices of Allegation where a party asks the Tribunal to provide relief in an appeal because of the acts or omissions of another party.3 The Rubins produced information about the origins of the waste and requested that Horizon Utilities Corporation and the City of St. Catharines be included in the Director's Order and that they undertake the waste removal work.

Implications for Future Cases

The Rubin decision has implications for future Directors' Orders in three...