Cheryl Gerhardt McLuckie

Following a judgment awarding the plaintiff damages for diminution in property value and engineering expenses due to environmental contamination, the parties disputed the calculation of prejudgment interest.

The plaintiff sought interest from the date the defendant was put on notice of the contamination at the presumptive rate of 1.3%, while the defendant argued for a later date and lower rate.

The court agreed with the plaintiff, finding no reason to depart from the presumptive rate or the date the cause of action arose, and awarded prejudgment interest accordingly.

Following a successful motion for class action certification regarding PFAS groundwater contamination, the plaintiffs sought costs against the unsuccessful defendant, the National Research Council of Canada (NRC).

A successful co-defendant, Carleton University, sought costs against the plaintiffs.

Applying the factors under Rule 57, the court ordered NRC to pay the plaintiffs $207,500 in costs on a partial indemnity scale.

The plaintiffs were ordered to pay Carleton University $20,000 plus HST in costs.

The plaintiff, former owner of a commercial property, sued the neighbouring property owner for environmental contamination caused by the migration of dry-cleaning solvents (PCE, TCE, DCE).

The defendant purchased the neighbouring property in 2007 and was put on notice of the contamination in 2010 but failed to take reasonable steps to investigate or remediate the issue, ignoring Ministry of the Environment requests until a Provincial Officer's Order was issued.

The court found the defendant liable in nuisance and negligence for allowing the continuing migration of contaminants after acquiring knowledge of the issue.

The plaintiff was awarded $1,291,307.21 in damages, representing the diminution in the property's market value and reasonable engineering expenses incurred to obtain a Record of Site Condition.

The plaintiffs brought a motion to certify a class proceeding against the National Research Council of Canada (NRC) and Carleton University, alleging that PFAS contaminants from NRC's National Fire Laboratory migrated into the groundwater of adjacent properties.

The court certified the class action against NRC for claims in strict liability, nuisance, negligence, and statutory breaches, finding that the pleadings disclosed causes of action and that a class proceeding was the preferable procedure.

The court dismissed the claim for punitive damages against NRC and refused to certify the common issues against Carleton University due to a lack of evidence connecting its activities to the contamination.

Following the dismissal of the plaintiff's motion for summary judgment, the court determined the issue of costs.

The court awarded costs to the defendant on a partial indemnity basis, fixed at $5,898.75 plus disbursements and HST.

The costs were ordered payable only upon the final resolution of the action by judgment or settlement.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' environmental contamination action on the basis that it was commenced after the expiry of the two-year limitation period.

The plaintiffs argued that the limitation period was tolled under s. 5(1)(a)(iv) of the Limitations Act because the ongoing involvement of the Ministry of the Environment constituted an alternative process, making a court proceeding inappropriate.

The court held that the Ministry's involvement did not toll the limitation period because it was not an alternative dispute resolution process with a reasonably ascertainable end date, and the plaintiffs' decision to delay litigation was tactical.

The motion for summary judgment was granted and the action was dismissed.

The plaintiff sought damages of approximately $4.8 million for breach of contract, negligent misrepresentation, and breach of the duty of good faith arising from a renewable energy contract.

The plaintiff acquired the secured debt of a company that had a contract with the defendant to build a biomass energy facility.

When the company filed for bankruptcy, the defendant treated the contract as automatically terminated pursuant to its terms, requiring the plaintiff to seek a new agreement.

The court dismissed the action, finding that the contract unambiguously provided for automatic termination upon bankruptcy, the defendant did not act in bad faith, and the plaintiff failed to mitigate its damages and prove an enforceable agreement for the sale of the contract.

Two appeals from a trial judgment concerning liability for environmental remediation of real property contaminated by dry cleaning solvents.

The trial judge found Fraser Hillary's Limited liable in nuisance and under section 99 of the Environmental Protection Act, awarding over $1.8 million in damages for remediation.

The action against David Hillary was dismissed.

Fraser appealed on grounds that the trial judge erred in finding it liable in nuisance and under the EPA.

The plaintiff appealed on grounds that the trial judge erred in failing to find negligence, failing to find the individual defendant liable in nuisance or negligence, and in assessing damages.

The appellate court dismissed both appeals, upholding the trial judgment.

Following a trial where the plaintiff was awarded over $1.8 million in damages for environmental contamination against one defendant but was unsuccessful against another, the court determined the costs payable by the unsuccessful defendant.

The court rejected the plaintiff's request for substantial indemnity costs, finding the defendant's conduct was not egregious.

The court applied a partial indemnity scale, reducing the fees by 10% to account for the successful co-defendant's involvement, and by a further 15% to reflect divided success on the issues and limited financial success compared to the amount claimed.

Total costs of $214,890.44 were awarded to the plaintiff.

The plaintiff brought a motion to strike out the defendants' Statement of Defence and Counterclaim, or specific parts thereof, alleging contravention of Rule 25 of the Rules of Civil Procedure by pleading evidence (especially technical opinion evidence), improper references to legal counsel, and argument.

The defendants argued their pleading contained material facts relevant to their defence and limitations.

The court found that many paragraphs contained opinion evidence, irrelevant references to legal counsel, or argument, and ordered specific paragraphs and sentences struck out with leave to amend, but declined to strike the entire pleading.

This addendum to reasons for decision addresses a request by the defendant, Fraser Hillary’s Limited, to present supplementary submissions concerning compensation under s. 99 of the Environmental Protection Act, citing the Court of Appeal decision in McCann v. Environmental Compensation Corp. The court declined the request, affirming the principle of finality and finding that the issue did not warrant reconsideration.

The court also clarified its prior finding that applying s. 99(2) was not retroactive and questioned the applicability of McCann to the present case.

The plaintiff property owner sued the adjacent dry cleaning business and its principal for environmental contamination caused by the migration of dry cleaning solvents (PCE/TCE) onto his lands.

The court dismissed claims in trespass, strict liability, and negligence, but found the corporate defendant liable in private nuisance and under section 99 of the Environmental Protection Act.

The individual defendant was not found liable as he did not own or control the pollutant at the time of the spills and his subsequent inaction did not cause the plaintiff's damages.

The court awarded the plaintiff $1,632,500 for remediation costs and $201,726.71 for engineering expenses.

Following a trial where the plaintiff had mixed success on a construction lien claim and failed on a breach of trust claim, both parties sought costs.

The court found equal success on the lien action, as the plaintiff proved the value of his claims but the defendant established the lien was registered out of time, resulting in no costs for either party.

The defendant was awarded $10,000 in costs for successfully defending the meritless breach of trust claim.

This trial involved two consolidated actions: a construction lien claim by S & L Mechanical for unpaid invoices and a breach of trust claim against Robert Dompierre, the former president of Lexus Mechanical Inc. The court found that S & L's construction lien was not registered in a timely manner and had expired.

The breach of trust claim against Dompierre was also dismissed as it was commenced outside the two-year limitation period, as the plaintiff knew or ought to have known of the loss much earlier.

However, the court determined the amounts owing to S & L from Lexus Mechanical Inc. (which was bankrupt but continued by order) and allowed certain set-offs claimed by Lexus for incomplete work by S & L. Ultimately, S & L was awarded a net judgment against Lexus Mechanical Inc.

The plaintiff sued the defendants for environmental contamination of his properties caused by dry cleaning chemicals originating from the adjacent property owned by the corporate defendant.

The individual defendant, who owned another adjacent residential property, moved for summary judgment dismissing the claims against him in negligence, nuisance, trespass, and statutory liability.

The court dismissed the motion, finding that genuine issues for trial existed because determining the individual defendant's liability required a comprehensive understanding of complex and evolving expert opinions regarding the source and migration of the contaminants, which necessitated oral testimony and cross-examination at trial.

The defendant bank sought leave to appeal to the Divisional Court from an order certifying a class proceeding arising from unauthorized access to customer information by a bank employee.

The proposed appeal challenged the class definition, the certification of a waiver of tort claim, and the certification of claims for non‑pecuniary damages in negligence and contract without proof of psychiatric injury.

The court held that the certification judge had applied the correct low threshold applicable at the pleadings and certification stage and that the bank had not shown conflicting authority or good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The court further held that the class definition was not impermissibly over‑inclusive and that the waiver of tort issue met the “some basis in fact” standard for certification.

Leave to appeal was therefore refused.

The plaintiffs sought certification of a class proceeding against a bank and a former employee who improperly accessed customers’ confidential financial information and disclosed it to third parties, leading to identity theft and fraud affecting numerous customers.

The court considered the requirements for certification under s. 5(1) of the Class Proceedings Act, 1992, including whether the pleadings disclosed causes of action such as negligence, breach of contract, intrusion upon seclusion, vicarious liability, and waiver of tort.

The court held that several pleaded claims disclosed viable causes of action and that the proposed class of 643 customers whose information had been accessed constituted an identifiable class.

The court further found that the issues of negligence, breach of contract, vicarious liability for intrusion upon seclusion, and waiver of tort raised common issues and that a class proceeding was the preferable procedure for resolving them.

The proposed representative plaintiffs were found to be suitable and capable of advancing the litigation.

Following the dismissal of a corporate plaintiff’s claim on summary judgment arising from a failed commercial real estate transaction, the court determined the appropriate allocation and quantum of costs among multiple parties.

The defendants sought elevated costs relying on offers to settle and alleged litigation tactics by the plaintiff.

The court awarded enhanced costs to the defendants and held that the controlling individual behind the corporate plaintiff could be personally liable for costs by piercing the corporate veil.

The court also interpreted an indemnity clause signed by a corporate officer as creating joint personal liability for full indemnity costs to one defendant.

Various additional costs claims by other parties were dismissed.

The defendant commercial tenant brought a Rule 21 motion to determine a question of law, arguing that the commercial lease agreement allocated the risk of loss from an oil spill to the plaintiff landlord, thereby barring claims in negligence and contract.

The court reviewed the lease provisions and the Supreme Court of Canada trilogy on the allocation of risk in commercial leases.

The court found no clear language in the lease absolving the tenant of liability for its own negligence, nor any evidence the tenant paid increased insurance premiums.

The motion was dismissed, with the court also declining to dismiss the motion solely on the basis of the defendant's delay in bringing it.

The respondents brought a motion under Rule 59.06(2)(d) of the Rules of Civil Procedure to vary a previous judgment to include a declaration that the applicant had abandoned a portion of a right-of-way on the respondents' property.

The applicant opposed the motion, arguing the relief was not pleaded at trial.

The court found that the issue of the applicant's use of the right-of-way was fully canvassed at trial and that it was in the interest of justice to provide finality.

The court varied the judgment to declare the right-of-way abandoned, but granted the applicant an easement over a narrow strip to allow for inspection of her garage.