Bill 56, Brownfields Statute Law Amendment Act, 2001

Hodgson, Hon. Chris Minister of Municipal Affairs and Housing

Versions

Bill 56 2001

An Act to encourage the revitalization
of contaminated land and to make
other amendments relating
to environmental matters

CONTENTS

Part

III

VII

VIII

Education Act Amendments

Environmental Protection Act Amendments

Municipal Act Amendments

Municipal Tax Sales Act Amendments

Ontario Water Resources Act Amendments

Pesticides Act Amendments

Planning Act Amendments

Commencement and Short title

______________

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

PART I
EDUCATION ACT AMENDMENTS

1. (1) Clause (b) of the definition of "education funding" in subsection 234 (14) of the Education Act, as re-enacted by the Statutes of Ontario, 2000, chapter 25, section 45, is repealed and the following substituted:

(b) from taxes under Division B of this Act or Part XXII.3 of the Municipal Act, other than taxes for the purposes of,

(i) paying a board's share of the costs of rebates, if any, under section 442.1, 442.2, 442.4, 442.5 or 442.6 of the Municipal Act,

(ii) paying a board's share of the tax assistance provided under section 442.7 of the Municipal Act, or

(iii) paying rebates under section 257.2.1 or 257.12.3 of this Act,

(2) Subsection 257.11 (17) of the Act, as re-enacted by the Statutes of Ontario, 2000, chapter 25, section 45, is repealed and the following substituted:

Amounts deemed to be education funding

(17) Amounts paid by the Minister under subsection (14) or (15) shall be deemed to be education funding within the meaning of subsection 234 (14), other than amounts paid for the purposes of,

(a) paying a board's share of the costs of rebates, if any, under section 442.1, 442.2, 442.4, 442.5 or 442.6 of the Municipal Act;

(b) paying a board's share of the tax assistance provided under section 442.7 of the Municipal Act; or

(3) The definition of "tax rates for school purposes" in subsection 257.12 (1.1) of the Act, as re-enacted by the Statutes of Ontario, 2000, chapter 25, section 45, is amended by adding the following clause:

(a.1) paying a board's share of the tax assistance provided under section 442.7 of the Municipal Act, or

. . . . .

PART II
ENVIRONMENTAL PROTECTION ACT AMENDMENTS

2. (1) Subsection 1 (1) of the Environmental Protection Act, as amended by the Statutes of Ontario, 1992, chapter 1, section 22, 1998, chapter 35, section 1 and 2000, chapter 26, Schedule F, section 12, is further amended by adding the following definitions:

"certificate of property use" means a certificate of property use issued under section 168.6; ("certificat d'usage d'un bien")

"certification date" means, in respect of a record of site condition, a date determined in accordance with the regulations that is not later than the date the record of site condition is filed in the Environmental Site Registry; ("date d'attestation")

"fiduciary" means an executor, administrator, administrator with the will annexed, trustee, guardian of property or attorney for property, but does not include a trustee in bankruptcy or trustee in bankruptcy representative; ("représentant fiduciaire")

"fiduciary representative" means, with respect to a fiduciary, an officer, director, employee or agent of the fiduciary, or a lawyer, consultant or other advisor of the fiduciary who is acting on behalf of the fiduciary; ("représentant d'un représentant fiduciaire")

"municipal representative" means, with respect to a municipality, an officer, employee or agent of the municipality, or a lawyer, consultant or other advisor of the municipality who is acting on behalf of the municipality; ("représentant municipal")

"receiver" means a person who has been appointed to take or who has taken possession or control of property pursuant to a mortgage, hypothec, pledge, charge, lien, security interest, encumbrance or privilege or pursuant to an order of a court, and includes a receiver-manager and an interim receiver; ("séquestre")

"receiver representative" means, with respect to a receiver, an officer, director, employee or agent of the receiver, or a lawyer, consultant or other advisor of the receiver who is acting on behalf of the receiver; ("représentant d'un séquestre")

"secured creditor" means a person who holds a mortgage, hypothec, pledge, charge, lien, security interest, encumbrance or privilege on or against property, but does not include a person who has taken possession or control of the property; ("créancier garanti")

"secured creditor representative" means, with respect to a secured creditor, an officer, director, employee or agent of the secured creditor, or a lawyer, consultant or other advisor of the secured creditor who is acting on behalf of the secured creditor; ("représentant d'un créancier garanti")

"trustee in bankruptcy representative" means, with respect to a trustee in bankruptcy, an officer, director, employee or agent of the trustee in bankruptcy, or a lawyer, consultant or other advisor of the trustee in bankruptcy who is acting on behalf of the trustee in bankruptcy; ("représentant d'un syndic de faillite")

(2) Section 1 of the Act, as amended by the Statutes of Ontario, 1992, chapter 1, section 22, 1998, chapter 35, section 1, 2000, chapter 26, Schedule F, section 12 and 2001, chapter 9, Schedule G, section 5, is further amended by adding the following subsection:

Health or safety

(4) For the purposes of this Act, a danger to existing water supplies that are used for human consumption shall be deemed to be a danger to the health or safety of persons.

(3) Clause 9 (4) (a) of the Act is amended by striking out "and any order or approval" and substituting "and any order, approval or certificate of property use".

(4) Section 19 of the Act is repealed and the following substituted:

Successors and assigns

19. (1) A certificate of property use or an order or approval of a court, the Minister, the Director or a provincial officer under this Act is binding on the executor, administrator, administrator with the will annexed, guardian of property or attorney for property of the person to whom it was directed, and on any other successor or assignee of the person to whom it was directed.

Limitation

(2) If, pursuant to subsection (1), an order is binding on an executor, administrator, administrator with the will annexed, guardian of property or attorney for property, their obligation to incur costs to comply with the order is limited to the value of the assets they hold or administer, less their reasonable costs of holding or administering the assets.

Receivers and trustees

(3) A certificate of property use or an order or approval of a court, the Minister, the Director or a provincial officer under this Act that relates to property is binding on a receiver or trustee that holds or administers the property.

Limitation

(4) If, pursuant to subsection (3), an order is binding on a trustee, other than a trustee in bankruptcy, the trustee's obligation to incur costs to comply with the order is limited to the value of the assets held or administered by the trustee, less the trustee's reasonable costs of holding or administering the assets.

Exception

(5) Subsection (3) does not apply to an order that relates to property held or administered by a receiver or trustee in bankruptcy if,

(a) within 10 days after taking or being appointed to take possession or control of the property, or within 10 days after the issuance of the order, the receiver or trustee in bankruptcy notifies the Director that they have abandoned, disposed of or otherwise released their interest in the property; or

(b) the order was stayed under Part I of the Bankruptcy and Insolvency Act (Canada) and the receiver or trustee in bankruptcy notified the Director, before the stay expired, that they abandoned, disposed of or otherwise released their interest in the property.

Extension of period

(6) The Director may extend the 10-day period for giving notice under clause (5) (a), before or after it expires, on such terms and conditions as he or she considers appropriate.

Notice under subs. (5)

(7) Notice under clause (5) (a) or (b) must be given in the manner prescribed by the regulations.

Holder

(8) For the purposes of this Act, a person who is bound by a certificate of property use or approval under this section shall be deemed to be the holder of the certificate or approval.

Index record

(9) The Ministry shall maintain an alphabetical index record of the names of all persons to whom orders, approvals or certificates of property use are directed under this Act.

Expiry of order, etc.

(10) When an order, approval or certificate of property use has expired or is revoked or set aside, the Ministry shall note that fact in the index record.

Search of index record

(11) The Ministry shall, on the request of any person, make a search of the index record and inform the person making the request as to whether or not the name of a particular person appears in the index record and shall permit inspection of any order, approval or certificate of property use relating to that person.

(5) Clause 96 (1) (c) of the Act is repealed and the following substituted:

(c) in accordance with an approval, order, certificate of property use, requirement or direction by the Director under any other Part of this Act or by a Director or provincial officer under any other Act administered by the Minister, but such an approval, order, certificate of property use, requirement or direction shall not be contrary to the regulations.

(6) The definition of "environmental measures" in section 131 of the Act is amended by striking out "clauses 132 (1) (a) to (c)" and substituting "clauses 132 (1) (a) to (c) or 132 (1.1) (a) to (c)".

(7) The definition of "financial assurance" in section 131 of the Act, as amended by the Statutes of Ontario, 1997, chapter 19, section 34, is repealed and the following substituted:

"financial assurance" means one or more of,

(a) cash, in the amount specified in the approval, order or certificate of property use,

(b) a letter of credit from a bank, in the amount and terms specified in the approval, order or certificate of property use,

(c) negotiable securities issued or guaranteed by the Government of Ontario or the Government of Canada in the amount specified in the approval, order or certificate of property use,

(d) a personal bond accompanied by collateral security, each in the form, terms and amount specified in the approval, order or certificate of property use,

(e) the bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance in the form, terms and amount specified in the approval, order or certificate of property use,

(f) a bond of a guarantor, other than an insurer referred to in clause (e), accompanied by collateral security, each in the form, terms and amount specified in the approval, order or certificate of property use,

(g) an agreement, in the form and terms specified in the approval, order or certificate of property use, and

(h) an agreement, in the form and terms prescribed by the regulations; ("garantie financière")

(8) Section 132 of the Act is amended by adding the following subsection:

Financial assurance for
certificate of property use

(1.1) The Director may include in a certificate of property use a requirement that the person to whom the certificate is issued provide financial assurance to the Crown in right of Ontario for any one or more of,

(a) the performance of any action specified in the certificate of property use;

(b) the provision of alternate water supplies to replace those that the Director has reasonable and probable grounds to believe are or are likely to be contaminated or otherwise interfered with by a contaminant on, in or under the property to which the certificate of property use relates; and

(c) measures appropriate to prevent adverse effects in respect of the property to which the certificate of property use relates.

(9) Subsections 132 (2) and (3) of the Act are repealed and the following substituted:

Changes in amount of financial assurance

(2) A requirement under subsection (1) or (1.1) may provide that the financial assurance may be provided, reduced or released in stages specified in the approval, order or certificate of property use.

Amendment of approval, order
or certificate of property use

(3) The Director may amend an approval, order or certificate of property use to change a requirement as to financial assurance contained in the approval, order or certificate of property use.

(10) Section 133 of the Act is amended by adding the following subsection:

Same, certificate of property use

(3) Failure to provide financial assurance specified in a certificate of property use or in accordance with a stage specified in a certificate of property use is grounds for an order in writing by the Director prohibiting or restricting the use of the property to which the certificate of property use relates.

(11) Subsection 134 (1) of the Act is amended by striking out "in respect of a works" and substituting "in respect of a works or certificate of property use".

(12) Subsection 134 (2) of the Act is amended by striking out "in respect of the works" at the end and substituting "in respect of the works or certificate of property use".

(13) Subsection 136 (2) of the Act is amended by striking out "required by the approval or order" and substituting "required by the approval, order or certificate of property use".

(14) Subsection 136 (3) of the Act is repealed and the following substituted:

Parties affected

(3) An order under this section shall be directed to,

(a) the person to whom the approval, order or certificate of property use was issued or any other person who is bound by the approval, order or certificate of property use; and

(b) any person that to the knowledge of the Director has provided the financial assurance for or on behalf of a person referred to in clause (a), or any successor or assignee of a person that to the knowledge of the Director has provided the financial assurance for or on behalf of a person referred to in clause (a).

(15) Subsection 139 (1) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12, is further amended by striking out "or" at the end of clause (d), by adding "or" at the end of clause (e) and by adding the following clause:

(f) issues a certificate of property use,

(16) Clauses 139 (2) (c) and (d) of the Act are repealed and the following substituted:

(c) alters the terms and conditions of a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit after it is issued; or

(d) imposes new terms and conditions on a certificate of approval or certificate of property use,

(17) Subsection 139 (2) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12, is further amended by striking out "the person to whom the licence or permit or certificate of approval or provisional certificate of approval is issued" in the portion after clause (d) and substituting "the person to whom the licence, permit, certificate of approval, provisional certificate of approval or certificate of property use is issued".

(18) Clause 142 (1) (a) of the Act is amended by striking out "the order, direction, term, condition, suspension, revocation or licence" and substituting "the order, certificate of property use, direction, term, condition, suspension, revocation or licence".

(19) Subsection 142 (2) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12, is further amended by striking out "the order, direction, term, condition, suspension, revocation or licence" and substituting "the order, certificate of property use, direction, term, condition, suspension, revocation or licence".

(20) Subsection 143 (2) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12, is repealed and the following substituted:

Tribunal may grant stay

(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a decision or order, other than,

(a) an order to monitor, record and report; or

(b) an order issued under section 168.8, 168.14 or 168.20.

(21) Subsection 147 (1) of the Act is amended by striking out "or" at the end of clause (a) and by adding the following clause:

(a.1) a receiver or trustee in bankruptcy is not required to do the thing because of subsection 19 (5) or 168.20 (7); or

. . . . .

(22) Subsection 147 (2) of the Act is repealed and the following substituted:

Notice of intent to cause things to be done

(2) The Director shall give notice of an intention to cause a thing to be done under subsection (1),

(a) to each person required by an order or decision made under this Act to do the thing; and

(b) if a receiver or trustee in bankruptcy is not required to do the thing because of subsection 19 (5) or 168.20 (7), to the receiver or trustee in bankruptcy.

(23) The Act is amended by adding the following section:

Parts XV.1 and XV.2:
Director may cause things to be done

148.1 (1) If, but for Part XV.1 or XV.2, the Minister, the Director or a provincial officer would be authorized by this Act to make an order requiring a person to do a thing, the Director may cause the thing to be done.

Same

(2) Subsection (1) applies even if the Director is authorized to make an order requiring another person to do the thing.

(24) Subsection 149 (1) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 13, is amended by striking out "A person who is responsible for doing a thing under section 146, 147 or 148" and substituting "A person who is responsible for doing a thing under section 146, 147, 148 or 148.1".

(25) Subsection 149 (2) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 13, is amended by striking out "for the purpose of doing a thing under section 146, 147 or 148" and substituting "for the purpose of doing a thing under section 146, 147, 148 or 148.1".

(26) Section 150 of the Act is amended by adding the following subsections:

Same

(2.1) If the Minister or Director has caused any thing to be done under this Act in circumstances where, pursuant to subsection 19 (5) or 168.20 (7) or a stay granted under Part I of the Bankruptcy and Insolvency Act (Canada), a receiver or trustee in bankruptcy was not required to do the thing, the Director may issue an order to the receiver or trustee in bankruptcy to pay the costs of doing the thing.

Same

(2.2) If an order to pay the costs of doing a thing is issued under subsection (1), (2) or (2.1) to a receiver or trustee in bankruptcy, the receiver or trustee in bankruptcy is not personally liable for those costs unless the order or decision that required the thing to be done arose from the gross negligence or wilful misconduct of the receiver or trustee in bankruptcy or of a receiver representative or trustee in bankruptcy representative.

(27) Subsection 150 (3) of the Act is amended by striking out "under subsection (1) or (2)" in the portion before clause (a) and substituting "under subsection (1), (2) or (2.1)".

(28) Section 152 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12, is further amended by adding the following subsection:

Same, receiver or trustee in bankruptcy

(2) For the purpose of subsection (1), if the order under subsection 150 (1) or (2.1) was issued to a receiver or trustee in bankruptcy,

(a) the receiver or trustee in bankruptcy shall be deemed to have been required to do any thing that was required to be done by the person whose property the receiver or trustee in bankruptcy holds or administers; and

(b) the receiver or trustee in bankruptcy shall be deemed to have been required to do a thing that, pursuant to subsection 19 (5) or 168.20 (7), the receiver or trustee in bankruptcy was not required to do.

(29) Section 155 of the Act is repealed and the following substituted:

Costs may be recovered from deposit or financial assurance

155. Where an order to pay costs is directed to a person who has given a deposit under section 35 or is in respect of works or property for which financial assurance is required under Part XII, the deposit or financial assurance may be used to recover amounts specified in the order to pay costs.

(30) Subclause 156 (1) (d) (i) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 14, is amended by striking out "provisional certificate of approval, program approval" and substituting "provisional certificate of approval, certificate of property use, program approval".

(31) Subclause 156 (1) (e) (i) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 14, is amended by striking out "provisional certificate of approval, program approval" and substituting "provisional certificate of approval, certificate of property use, program approval".

(32) Subsection 156 (1) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 14, is amended by adding the following clause:

(e.1) entering any property for which a record of site condition has been filed in the Environmental Site Registry established under section 168.3 for the purpose of sampling, testing or examining anything referred to in the record of site condition;

(33) Clause 157 (1) (c) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 16, is repealed and the following substituted:

(c) a term or condition of a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under this Act.

(34) Section 165 of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 25, is amended by striking out "certificate of approval or provisional certificate of approval" wherever it occurs and substituting in each case "certificate of approval, provisional certificate of approval or certificate of property use".

(35) Section 165.1 of the Act, as enacted by the Statutes of Ontario, 1992, chapter 1, section 33, is amended by adding the following subsections:

Copies or extracts

(2) The provincial officer may, on giving a receipt, remove any record referred to in subsection (1) for the purpose of making copies or extracts and shall promptly return the record.

Records in electronic form

(3) If a record is retained in electronic form, the provincial officer may require that a copy of it be provided to him or her on paper or in a machine-readable medium or both.

(36) The Act is amended by adding the following Part:

PART XV.1
RECORDS OF SITE CONDITION

Definitions

168.1 In this Part,

"building" has the same meaning as in the Building Code Act, 1992; ("bâtiment")

"construct" has the same meaning as in the Building Code Act, 1992; ("construire")

"owner" includes a person prescribed by the regulations; ("propriétaire")

"phase one environmental site assessment" means an assessment of property conducted in accordance with the regulations by or under the supervision of a qualified person to determine the likelihood that one or more contaminants have affected all or part of the property; ("évaluation environnementale de site de phase I")

"phase two environmental site assessment" means an assessment of property conducted in accordance with the regulations by or under the supervision of a qualified person to determine the location and concentration of one or more contaminants in the natural environment; ("évaluation environnementale de site de phase II")

"qualified person" means a person who meets the qualifications prescribed by the regulations; ("personne compétente")

"Registry" means the Environmental Site Registry; ("Registre")

"risk assessment" means an assessment of risks prepared in accordance with the regulations by or under the supervision of a qualified person. ("évaluation des risques")

Interpretation

168.2 Except as provided in subsections 168.3 (3) and 168.9 (2), this Part shall not be construed as affecting any cause of action that a person would have in the absence of this Part.

Environmental Site Registry

168.3 (1) The Director shall establish, maintain and operate a registry known in English as the Environmental Site Registry and in French as Registre environnemental des sites.

Purposes

(2) The purposes of the Registry are:

1. To allow persons to file records of site condition for the purpose of this Part.

2. To facilitate public access to information contained in records of site condition that have been filed under this Part and to other information filed in accordance with this Act and the regulations.

3. Such other purposes as are prescribed.

Protection from liability

(3) Despite subsection 180 (2), no action or other proceeding shall be commenced against the Crown in right of Ontario, a Crown employee within the meaning of the Public Service Act, a person or body to whom powers and duties of the Director are delegated under section 168.9 or an employee of a person or body to whom powers and duties of the Director are delegated under section 168.9 arising from any inaccuracy contained in a record of site condition that is filed in the Registry under this Act.

Filing record of site condition

168.4 (1) An owner of property may file a record of site condition in the Registry in respect of the property if all of the following criteria are satisfied:

1. A qualified person has certified in the record of site condition that a phase one environmental site assessment of the property has been conducted.

2. A qualified person has certified in the record of site condition that,

i. a phase two environmental site assessment of all or part of the property was conducted with respect to one or more contaminants, or

ii. as of the certification date, no phase two environmental site assessment is required by the regulations for any part of the property and, in the opinion of the qualified person, it is not necessary for any other reason to conduct a phase two environmental site assessment for any part of the property.

3. If a phase two environmental site assessment was conducted but for only part of the property, a qualified person has certified in the record of site condition that, as of the certification date,

i. no phase two environmental site assessment was required by the regulations for any other part of the property, and

ii. in the opinion of the qualified person, it was not necessary for any other reason to conduct a phase two environmental site assessment for any other part of the property.

4. If a phase two environmental site assessment was conducted for all or part of the property, a qualified person has certified in the record of site condition that,

i. as of the certification date, the property for which the phase two environmental site assessment was conducted meets,

A. the applicable full depth background site condition standards prescribed by the regulations for all contaminants prescribed by the regulations, except for those contaminants specified by the qualified person,

B. the applicable full depth generic site condition standards prescribed by the regulations for all contaminants prescribed by the regulations, except for those contaminants specified by the qualified person, or

C. the applicable stratified site condition standards prescribed by the regulations for all contaminants prescribed by the regulations, except for those contaminants specified by the qualified person, and

ii. for each contaminant excepted by the qualified person from the certification under subparagraph i,

A. a risk assessment was prepared for the contaminant with respect to the property for which the phase two environmental site assessment was conducted,

B. the Director has accepted the risk assessment under clause 168.5 (1) (a), and

C. as of the certification date, the property for which the phase two environmental site assessment was conducted meets the standards specified in the risk assessment for the contaminant.

5. The record of site condition contains everything required by subsection (2) and has been completed in accordance with the regulations.

Contents of record of site condition

(2) The person who files a record of site condition in respect of a property shall ensure that, in accordance with the regulations, the record contains the following:

1. A description of the property.

2. The name of the person filing the record of site condition and the names of any other owners of the property.

3. The type of property use for which the record is filed.

4. Which standards prescribed by the regulations were applied for the purpose of the record of site condition.

5. A description of any soil removals or other action taken to reduce the concentration of contaminants on, in or under the property.

6. For each contaminant for which sampling and analysis has been performed, the maximum known concentration of the contaminant on, in or under the property as of the certification date.

7. A statement indicating whether a certificate of property use has been issued in respect of the property.

8. A list of all reports relied on by qualified persons in making the certifications referred to in subsection (1).

9. Such other certifications, information and documents as are prescribed by the regulations.

Acknowledgment of filing

(3) If a record of site condition is filed in the Registry under this section, the Director shall promptly give the person who filed the record of site condition a written acknowledgment in the form approved by the Minister.

Date of filing

(4) A record of site condition that is filed in the Registry under this section shall be deemed to have been filed in the Registry on the date specified in the acknowledgment given under subsection (3).

Retention of reports

(5) A qualified person who relied on a report in making a certification referred to in subsection (1) shall retain a copy of the report for the period prescribed by the regulations.

Transition

(6) If, pursuant to the Ministry publication entitled "Guideline for Use at Contaminated Sites in Ontario", originally dated June 1996 and later revised, a record of site condition in respect of a property was submitted to the Ministry before this section came into force, the owner of the property may, despite subsections (1) and (2), file the record of site condition in the Registry if both of the following criteria are satisfied:

1. The Ministry has acknowledged in writing receipt of the record of site condition.

2. The owner of the property files a notice in the Registry certifying that the requirements prescribed by the regulations have been complied with.

Same

(7) If a record of site condition is filed in the Registry under subsection (6),

(a) the notice referred to in paragraph 2 of subsection (6) shall be deemed to be part of the record of site condition;

(b) the land use specified in the record of site condition shall be deemed to have been specified as the type of property use under paragraph 3 of subsection (2); and

(i) a certification under sub-subparagraph 4 i A of subsection (1), if the record of site condition indicates that a background assessment or restoration approach was used,

(ii) a certification under sub-subparagraph 4 i B of subsection (1), if the record of site condition indicates that a generic full depth assessment or restoration approach was used,

(iii) a certification under sub-subparagraph 4 i C of subsection (1), if the record of site condition indicates that a generic stratified assessment or restoration approach was used, or

(iv) a certification under subparagraph 4 ii of subsection (1), if the record of site condition indicates that a site specific risk assessment approach was used.

Director's response to risk assessment

168.5 (1) If an owner of property submits a risk assessment relating to a contaminant and the property to the Director, the Director shall, within the time prescribed by the regulations,

(a) give the person notice in writing that the Director accepts the risk assessment; or

(b) give the person notice in writing that the Director does not accept the risk assessment for reasons specified by the Director in the notice.

Validity of decision

(2) A decision of the Director to accept or not accept a risk assessment is not invalid solely on the ground that the decision was not made within the time prescribed by the regulations.

Certificate of property use

168.6 (1) If the Director accepts a risk assessment relating to a property, he or she may, when giving notice under clause 168.5 (1) (a), issue a certificate of property use to the owner of the property, requiring the owner to do any of the following things:

1. Take any action specified in the certificate that, in the Director's opinion, is necessary to prevent, eliminate or ameliorate any adverse effect on the property, including installing any equipment, monitoring any contaminant or recording or reporting information for that purpose.

2. Refrain from using the property for any use specified in the certificate or from constructing any building specified in the certificate on the property.

Restriction

(2) A certificate of property use shall not require an owner of property to take any action that would have the effect of reducing the concentration of a contaminant on, in or under the property to a level below the level that is required to meet the standards specified for the contaminant in the risk assessment.

Revocation or amendment

(3) The Director may, on his or her own initiative or on application by the owner of the property in respect of which a certificate has been issued under subsection (1),

(a) alter any terms and conditions in the certificate or impose new terms and conditions; or

(b) revoke the certificate.

Occupants

(4) If a certificate of property use contains a provision requiring the owner of property to refrain from using the property for a specified use or from constructing a specified building on the property,

(a) the owner of the property shall ensure that a copy of the provision is given to every occupant of the property;

(b) the provision applies, with necessary modifications, to every occupant of the property who receives a copy of the provision; and

Consequences of filing record of site condition

168.7 (1) If a record of site condition is filed in the Registry in accordance with section 168.4, no order shall be issued to any of the following persons under section 7, 8, 12, 17, 18, 97, 157 or 157.1 in respect of a contaminant that was discharged into the natural environment before the certification date and was on, in or under the property as of the certification date:

1. The person who filed the record of site condition or a subsequent owner of the property.

2. A person who is in occupation of the property or who was in occupation of the property at any time after the record of site condition was filed.

3. A person who has charge, management or control of the property or who had charge, management or control of the property at any time after the record of site condition was filed.

4. A person who meets the requirements prescribed by the regulations and who, before the certification date,

i. owned the property,

ii. was in occupation of the property, or

iii. had charge, management or control of the property.

False or misleading information

(2) Subsection (1) does not apply if the record of site condition contains false or misleading information.

Contaminants that move to other property

(3) Subsection (1) does not apply if, after the certification date, any of the contaminant moved from the property to which the record of site condition relates to another property.

Different use

(4) If the actual use of the property is different from the use specified under paragraph 3 of subsection 168.4 (2) in the record of site condition, subsection (1) does not apply to a person who causes or permits the actual use unless,

(a) the record of site condition did not contain any certification under subparagraph 4 ii of subsection 168.4 (1);

(b) all of the full depth background site condition standards that are applicable under the regulations to the actual use are less stringent than the full depth background site condition standards that are applicable to the use specified in the record of site condition, if the record of site condition contained a certification under sub-subparagraph 4 i A of subsection 168.4 (1);

(c) all of the full depth generic site condition standards that are applicable under the regulations to the actual use are less stringent than the full depth generic site condition standards that are applicable to the use specified in the record of site condition, if the record of site condition contained a certification under sub-subparagraph 4 i B of subsection 168.4 (1); and

(d) all of the stratified site condition standards that are applicable under the regulations to the actual use are less stringent than the stratified site condition standards that are applicable to the use specified in the record of site condition, if the record of site condition contained a certification under sub-subparagraph 4 i C of subsection 168.4 (1).

Contravention of certificate of property use, etc.

(5) Despite subsection (1), an order may be issued under section 157 against a person who contravenes a term or condition of,

(a) a certificate of property use; or

(b) an order made under this Act in respect of risk management measures described in a record of site condition filed in the Registry under subsection 168.4 (6).

Contravention of soil management
or disposal regulations

(6) Despite subsection (1), an order may be issued under section 157 against a person who contravenes a provision of a regulation made under clause 176 (1) (g) or 176 (10) (m).

Consent order

(7) Subsection (1) does not apply if the person to whom the order is issued consents in writing to the order.

Emergencies relating to old contaminants

168.8 (1) If a record of site condition is filed in the Registry in accordance with section 168.4 with respect to a property, the Director may issue an order described in subsection (2) to the owner of the property if the Director has reasonable grounds to believe that, as a result of the presence of a contaminant that was on, in or under the property as of the certification date, there is danger to the health or safety of any person.

Scope of order

(2) An order under subsection (1) may only require the owner, within such times as are specified in the order, to comply with such directions specified in the order as are reasonably necessary to ensure that there is no danger to the health or safety of any person.

Same

(3) The directions referred to in subsection (2) may include the following:

1. A direction requiring the doing of anything mentioned in section 124.

2. A direction requiring the removal or disposal of the contaminant or anything affected by the contaminant.

3. A direction to secure, by means of locks, gates, fences, security guards or other means, any land, place or thing.

4. If the presence or discharge of the contaminant has damaged or endangered or is likely to damage or endanger existing water supplies, a direction to provide alternate water supplies.

Information to be included in order

(4) An order under subsection (1) shall briefly describe the reasons for the order and the circumstances on which the reasons are based.

Notice of order to be filed in Registry

(5) The Director shall file notice of an order under subsection (1) in the Registry in accordance with the regulations.

Notice of compliance with order

(6) If the Director is satisfied that an order under subsection (1) has been complied with, the Director shall file notice of the compliance in the Registry in accordance with the regulations.

Filing of new record of site condition

(7) If the Director is satisfied that an order under subsection (1) has been complied with but the Director is of the opinion that a certification contained in the record of site condition filed in the Registry does not accurately reflect the current state of the property, subsection (6) does not apply until a new record of site condition is filed in accordance with section 168.4.

Delegation agreement

168.9 (1) The Minister may enter into an agreement with an individual, partnership or corporation, delegating to the individual, partnership or corporation any of the Director's powers and duties relating to the establishment, maintenance and operation of the Registry, including the Director's duties under subsection 168.4 (3).

Contents of agreement

(2) A delegation agreement shall contain any limitations, conditions and requirements applicable to the delegation and such other provisions as the Minister considers advisable in the public interest, including provisions,

(a) requiring that the delegate comply with applicable Ministry standards and policies, including standards and policies relating to quality assurance and audits;

(b) setting the financial terms of the delegation;

(d) providing that the Minister may appoint persons to the board of directors of the delegate, if the delegate is a corporation without share capital;

(e) authorizing the delegate to carry on other activities unrelated to the delegated powers and duties.

Regulation

(3) A delegation under a delegation agreement is not effective unless the Minister makes a regulation,

(a) prescribing the powers and duties that are to be delegated by the agreement; and

(b) specifying the individual, partnership or corporation to which the powers and duties are to be delegated.

Revocation of delegation

(4) The Minister may by regulation revoke a delegation if, in the opinion of the Minister,

(a) the delegate has contravened or failed to comply with this Act or the regulations;

(b) the delegate has contravened or failed to comply with the delegation agreement; or

Effect of regulation

(5) The delegation is revoked by a regulation made under subsection (4) on the day specified in the regulation or, if no day is specified in the regulation, on the day the regulation comes into force.

Notice

(6) The Minister may give the delegate such notice of the intention to make a regulation under subsection (4) as the Minister considers reasonable in the circumstances.

Other remedies not affected

(7) The power to revoke a delegation is in addition to and does not bar or affect the Minister's right to exercise any other remedy under the delegation agreement or at law.

Obligations of delegate

(8) The delegate shall exercise and perform the powers and duties delegated to the delegate in accordance with the law and, in particular, in accordance with this Act, the regulation prescribing the delegated powers and duties and the delegation agreement.

Minister may appoint directors

(9) If a delegation agreement with a corporation without share capital so provides, the Minister may appoint one or more persons to the board of directors of the delegate, as specified in the agreement, for such terms of office as the Minister considers appropriate.

Remuneration, expenses of Ministerial appointees

(10) The remuneration and expenses of the directors appointed by the Minister shall be the responsibility of the delegate.

Delegate not a Crown agency

(11) A delegate is not an agent of Her Majesty for any purpose, despite the Crown Agency Act, and shall not hold itself out as such.

Crown not liable for delegate's
acts

(12) No action or other proceeding shall be instituted against the Crown, the Minister or any employee of the Ministry,

(a) for any act done in the execution or intended execution of a power or duty delegated under this section or for an alleged neglect or default in the execution of a power or duty delegated under this section; or

(b) for any tort committed by a delegate or an employee or agent of a delegate in relation to a power or duty delegated under this section.

Annual report

(13) A delegate shall report annually to the Minister on its activities over the previous year with respect to the delegated powers and duties.

Additional reports

(14) A delegate shall provide additional reports to the Minister as may be required by the delegation agreement or requested by the Minister.

Regulations

(15) The Minister may make regulations,

(a) prescribing the powers and duties of the Director that are to be delegated under a delegation agreement;

(b) specifying the individual, partnership or corporation to whom such powers and duties are to be delegated;

(c) respecting any matter that the Minister considers advisable to carry out effectively the intent and purpose of this section.

General or particular

(16) A regulation made under subsection (15) may be general or particular in its application.

Definition

(17) In this section,

"delegation agreement" means an agreement under subsection (1).

(37) The Act is amended by adding the following section:

Prohibition on certain changes of use

168.3.1 (1) Subject to subsection (2), a person shall not,

(a) change the use of a property from industrial or commercial use to residential or parkland use;

(b) change the use of a property in a manner prescribed by the regulations; or

(c) construct a building if the building will be used in connection with a change of use that is prohibited by clause (a) or (b).

Exception

(2) Subsection (1) does not apply if,

(a) a record of site condition has been filed in the Registry in respect of the property under section 168.4; and

(b) the use specified under paragraph 3 of subsection 168.4 (2) in the record of site condition is the use to which the property is changed under clause (1) (a) or (b).

(38) Section 168.6 of the Act, as enacted by subsection (36), is amended by adding the following subsections:

Notice to prescribed persons

(5) If a certificate of property use is issued, altered or revoked under this section, the Director shall give notice of the certificate, alteration or revocation to the persons prescribed by the regulations.

Prohibition on construction or use

(6) Despite any other Act, if a certificate of property use contains a provision requiring the owner of property to refrain from using the property for a specified use or from constructing a specified building on the property, no permit, licence, approval or other instrument shall be issued to any person, under any provision prescribed by the regulations, that would authorize the person to use the property for the specified use, to construct the specified building or to construct a building that will be used for the specified use.

(39) The Act is amended by adding the following Part:

PART XV.2
SPECIAL PROVISIONS APPLICABLE TO MUNICIPALITIES, SECURED CREDITORS, RECEIVERS, TRUSTEES IN BANKRUPTCY,
FIDUCIARIES AND PROPERTY INVESTIGATORS

Interpretation

Definitions

168.10 In this Part,

"contaminant" means,

(a) a contaminant as defined in section 1, or

(b) waste as defined in Part V; ("contaminant")

"fiduciary property" means property held or administered by a fiduciary in the capacity of fiduciary, or property in respect of which a fiduciary has powers or duties in the capacity of fiduciary; ("bien fiduciaire")

"non-municipal property" means, with respect to a municipality, property that is not owned, leased or occupied by the municipality. ("bien non municipal")

Interpretation

168.11 This Part shall not be construed as affecting any cause of action that a person would have in the absence of this Part.

Municipalities

Actions taken by municipalities

168.12 (1) A municipality or a municipal representative who takes an action described in subsection (2) is not, for that reason alone,

(a) a person who is or was in occupation of a source of contaminant for the purpose of subsection 7 (1) or 8 (1);

(b) a person who has or had the charge, management or control of a source of contaminant for the purpose of subsection 7 (1) or 8 (1);

(d) a person who has or had management or control of an undertaking or property for the purpose of subsection 18 (1);

(e) a person who has or had charge and control of land, a building or waste for the purpose of section 43;

(f) an occupant or previous occupant of land or a building for the purpose of section 43;

(g) a person having control of a pollutant for the purpose of subsection 97 (1);

(h) a person having the charge, management or control of any real property or personal property for the purpose of subsection 97 (1); or

(i) a person who has management or control of an undertaking or property for the purpose of subsection 157.1 (1).

Actions

(2) The actions referred to in subsection (1) are the following:

1. Any action taken for the purpose of conducting, completing or confirming an investigation relating to non-municipal property.

2. Any action taken for the purpose of preserving or protecting non-municipal property, including action to,

i. ensure the supply of water, sewage services, electricity, artificial or natural gas, steam, hot water, heat or maintenance,

ii. secure the property by means of locks, gates, fences, security guards or other means, or

iii. ensure that the property is insured under a contract of insurance.

3. Any action taken on non-municipal property for the purpose of responding to,

i. any danger to the health or safety of any person that results from the presence or discharge of a contaminant on, in or under the property,

ii. any impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it that results from the presence or discharge of a contaminant on, in or under the property, or

iii. any injury or damage or serious risk of injury or damage to any property or to any plant or animal life that results from the presence or discharge of a contaminant on, in or under the property.

4. Any action taken with respect to non-municipal property to exercise a right under any Act to collect rent or levy by distress in relation to an unpaid amount.

5. Any action taken on non-municipal property under or for the purpose of the Municipal Tax Sales Act.

6. Any action taken on non-municipal property under or for the purpose of the Building Code Act, 1992, the Fire Protection and Prevention Act, 1997 or an Act prescribed by the regulations.

7. Any other action prescribed by the regulations.

Ownership under the
Municipal Tax Sales Act

168.13 (1) If a municipality is the owner of property by virtue of the registration of a notice of vesting under the Municipal Tax Sales Act, the Minister, the Director or a provincial officer shall not, in respect of the period described in subsection (4), issue any order under any provision of this Act to the municipality or a municipal representative with respect to the property unless the order arises from,

(a) the gross negligence or wilful misconduct of the municipality or municipal representative; or

(b) circumstances prescribed by the regulations.

Exception

(2) Subsection (1) does not apply to an order under paragraph 4, 5 or 6 of subsection 97 (1).

Consent order

(3) Subsection (1) does not apply to an order issued with the written consent of the municipality or municipal representative.

Time period

(4) Subsection (1) only applies to the municipality or municipal representative in respect of the period that begins on the day the municipality became the owner of the property by virtue of the registration of the notice of vesting and ends on the fifth anniversary of that day.

Extension of period

(5) The Director may extend the period referred to in subsection (4), before or after it expires, on such terms and conditions as he or she considers appropriate.

Exceptional circumstances

168.14 (1) Despite section 168.13, the Director may issue an order described in subsection (3) to a municipality if the municipality is the owner of property by virtue of the registration of a notice of vesting under the Municipal Tax Sales Act and the Director has reasonable grounds to believe that, as a result of the presence or discharge of a contaminant on, in or under the property, any of the following circumstances exist:

1. There is danger to the health or safety of any person.

2. There is impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it.

3. There is injury or damage or serious risk of injury or damage to any property or to any plant or animal life.

Restriction if record of site condition

(2) If a record of site condition has been filed in the Environmental Site Registry under section 168.4 with respect to the property, no order shall be issued under subsection (1) unless the Director has reasonable grounds to believe that, as a result of the presence of a contaminant that was on, in or under the property as of the certification date, there is danger to the health or safety of any person.

Scope of order

(3) An order under subsection (1) may only require the municipality, within such times as are specified in the order, to comply with such directions specified in the order as are reasonably necessary to ensure that,

(a) none of the circumstances listed in subsection (1) exist, if no record of site condition has been filed in the Environmental Site Registry under section 168.4 with respect to the property; or

(b) there is no danger to the health or safety of any person, if a record of site condition has been filed in the Environmental Site Registry under section 168.4 with respect to the property.

Same

(4) The directions referred to in subsection (3) may include the following:

1. A direction requiring the doing of anything mentioned in section 124.

2. A direction requiring the removal or disposal of the contaminant or anything affected by the contaminant.

3. A direction to secure, by means of locks, gates, fences, security guards or other means, any land, place or thing.

4. If the presence or discharge of the contaminant has damaged or endangered or is likely to damage or endanger existing water supplies, a direction to provide alternate water supplies.

Information to be included in order

(5) An order under subsection (1) shall briefly describe the reasons for the order and the circumstances on which the reasons are based, including the circumstances listed in subsection (1) that exist.

When notice of order filed in Registry

(6) The Director shall file notice of an order under subsection (1) in the Environmental Site Registry in accordance with the regulations if a record of site condition has been filed in the Registry under section 168.4 with respect to the property.

Notice of compliance with order

(7) If notice of an order has been filed in the Registry under subsection (6) and the Director is satisfied that the order has been complied with, the Director shall file notice of the compliance in the Registry in accordance with the regulations.

Filing of new record of site condition

(8) If notice of an order has been filed in the Registry under subsection (6) and the Director is satisfied that the order has been complied with but the Director is of the opinion that a certification contained in the record of site condition filed in the Registry does not accurately reflect the current state of the property, subsection (7) does not apply until a new record of site condition is filed in accordance with section 168.4.

Notice of prescribed circumstances

168.15 (1) If, in the course of or as a result of taking any action described in subsection 168.12 (2), a municipality or municipal representative becomes aware of circumstances prescribed by the regulations, the municipality shall give notice to a provincial officer in the manner prescribed by the regulations.

Same

(2) If a municipality became the owner of property by virtue of the registration of a notice of vesting under the Municipal Tax Sales Act and, during the period described in subsection 168.13 (4), the municipality or a municipal representative becomes aware of circumstances prescribed by the regulations, the municipality shall give notice to a provincial officer in the manner prescribed by the regulations.

Reports of investigations of contaminants

168.16 On the written request of the Director, a municipality shall, within the time specified in the request, provide the Director with a copy of any report that is in the possession or control of the municipality and that was prepared in the course of or as a result of an investigation to determine whether a contaminant is present or is being discharged on, in or under property.

Secured Creditors, Receivers and
Trustees in Bankruptcy

Actions taken by secured creditors

168.17 (1) A secured creditor or a secured creditor representative who takes an action described in subsection (2) is not, for that reason alone,