The defendant, Imperial Oil Ltd., moved for summary judgment to dismiss the plaintiff's (Valco Instruments Canada Corporation) action for damages in negligence and nuisance due to petroleum hydrocarbon (PHC) migration.
Imperial Oil argued the claim was statute-barred by the Limitations Act, having been discovered in 2001 or 2006, and that there was no genuine issue for trial regarding continuing nuisance.
The court found the claim for initial damages was discovered in 2006, making it statute-barred by October 2008.
However, the court found a genuine issue for trial regarding continuing nuisance, specifically whether there has been ongoing migration of PHCs from the defendant's property to the plaintiff's property since November 4, 2009, and the extent of resulting damages.
The motion for summary judgment was granted in part, dismissing the initial claim but allowing the continuing nuisance claim to proceed to trial.