Rosalind H. Cooper

The appellant, a property developer, purchased contaminated land in 1990 and commenced an action in January 2004 seeking damages for soil contamination.

The motion judge granted summary judgment, finding the action was statute-barred because the appellant had actual knowledge of the contamination by April 1991, triggering a six-year limitation period that had expired long before the action was commenced.

The appellant appealed, arguing the motion judge erred in principle, made palpable and overriding errors of fact, and failed to consider whether its continuing nuisance claim was statute-barred.

The Court of Appeal dismissed the appeal, holding that the appellant's knowledge of contamination in 1991, albeit to an uncertain extent, was sufficient to trigger the limitation period, and the appellant was not required to know the full extent of the contamination for the period to begin running.

The court considered the allocation and quantum of costs following summary judgment in favour of Canadian Pacific Railway Company (CPR), where the third party, Canada Colors and Chemicals Limited (CCCL), sought costs from the plaintiff, 863880 Ontario Limited.

The court found that exceptional circumstances justified ordering the plaintiff to pay CCCL’s costs, but not the full amount claimed.

The court directed a revised calculation, holding the plaintiff responsible for half of CCCL’s reasonable costs up to the discontinuance of a related third party claim, and all reasonable costs thereafter, subject to a 20% reduction and further specific deductions.

The defendant, Canadian Pacific Railway Company (CPR), brought a motion for summary judgment to dismiss an action by 863880 Ontario Limited (863) as statute-barred.

The action sought damages for TCE contamination on a property purchased by 863 from CPR's predecessors.

CPR argued 863 had sufficient knowledge of the contamination by April 1991, triggering the six-year limitation period. 863 contended it only gained full knowledge in 1998.

The court found that 863 had actual knowledge of the contamination in April 1991, sufficient to trigger the limitation period, as perfect or complete knowledge of the extent or source of damage is not required.

The motion for summary judgment was granted, and 863's action against CPR was dismissed.

This endorsement addresses the costs arising from a dismissed motion brought by Evergreen Community (Burlington) Ltd. for an injunction and an order for inspection against FirstCanada ULC.

FirstCanada, the successful party in the motion, sought costs on a mixed partial/substantial indemnity scale, while Evergreen argued for partial indemnity.

The court awarded FirstCanada costs on a partial indemnity scale, finding that Evergreen was not unreasonable in rejecting FirstCanada's non-Rule 49 settlement offer, which included a broad release that would have precluded future claims.

The total costs awarded to FirstCanada were $175,214.10.

Evergreen Community (Burlington) Ltd. brought a motion seeking an interim or interlocutory injunction against FirstCanada ULC to prevent alleged ongoing environmental contamination (LNAPL) from FirstCanada's property onto Evergreen's, and an order for inspection under Rule 32 to conduct groundwater and soil testing.

Evergreen argued the contamination stalled its billion-dollar development project.

The court dismissed both requests, finding that the injunction sought was mandatory and Evergreen failed to meet the strict 'strong prima facie case' test, particularly regarding irreparable harm and the ongoing nature of contamination.

The court preferred FirstCanada's expert evidence that a Record of Site Condition (RSC) or Risk Assessment could be obtained despite existing contamination.

The order for inspection was denied due to procedural unfairness and lack of demonstrated necessity for the upcoming summary judgment motion.

The London Transit Commission (LTC) appealed a motion judge's decision to strike its third-party claim against Eaton Industries (Canada) Company (Eaton) as statute-barred under the Limitations Act, 2002.

LTC argued the motion judge erred in determining when it had actual or constructive knowledge of the claim.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that LTC had actual or constructive knowledge of its claim against Eaton by May 22, 2013, and failed to exercise due diligence in investigating the contamination.

The court rejected LTC's arguments regarding a general rule for discoverability in environmental claims, continuing torts, and standalone claims, and declined to consider a new argument under the Environmental Protection Act.

Following a successful motion by the defendants to enforce a settlement agreement and the dismissal of the plaintiff's cross-motion, the court determined the quantum of costs.

The plaintiff argued the defendants' costs claims were excessive.

Applying the principle of reasonableness and the factors under Rule 57.01(1), the court ordered the plaintiff to pay costs of $45,000 to Leggett and $3,500 to Garlock.

The plaintiff, 1207717 Ontario Inc., and defendants, Leggett & Platt Canada Co. and Garlock of Canada Ltd., brought motions and cross-motions to enforce a settlement agreement concerning environmental contamination.

Leggett sought a declaration that the Remedial Action Plan (RAP) was complete and dismissal of the action and crossclaim. 1207717 Ontario sought further groundwater testing, arguing the RAP was incomplete.

The court interpreted the settlement agreement, finding that the specified two-year monitoring period and "stable or decreasing" contamination standard had been met by Leggett's consultant's reports.

The court rejected 1207717 Ontario's arguments for further testing or that Ministry of Environment standards were relevant, as these were not part of the contract.

Leggett's motion was granted, and 1207717 Ontario's cross-motion was dismissed, leading to the dismissal of the action and crossclaim without costs.

The proposed intervenors brought a motion to intervene as added parties in an application concerning the interpretation of an indemnity agreement.

The proposed intervenors were defendants in a related main action regarding environmental contamination, but were not parties to the indemnity agreement.

The court dismissed the motion, finding that the proposed intervenors had no direct interest in the subject matter of the application, would not be adversely affected by its outcome, and shared no common questions of law or fact with the parties.

The court also noted that intervention would likely complicate and delay the proceedings without providing a useful contribution.

The moving plaintiff sought to set aside a registrar's dismissal for delay and obtain leave to file a substantially expanded amended statement of claim in contamination litigation.

Applying a contextual approach under rule 37.14 and related jurisprudence, the court found the delay had adequate explanation in light of counsel changes, document-production disputes, and evolving contamination evidence.

The court also held the proposed amendments did not plead a new cause of action, and alternatively found limitation issues unsuitable for determination on a pleadings motion.

The dismissal order was set aside, leave to amend was granted subject to limitation defences, costs were fixed against one responding party, and costs as between the plaintiff and the railway were reserved to the trial judge.

The appellant, General Electric Canada Company, sought a declaration that its insurers had a duty to defend it regarding a request by the Ministry of the Environment (MOE) to delineate the source of TCE contamination on its former property.

The application judge dismissed the application, finding the MOE letter was a request for voluntary action and the costs incurred were compliance costs, not defence costs.

The Court of Appeal upheld the decision, applying the pleadings rule and concluding that the MOE letter did not constitute a claim that triggered the insurers' duty to defend.

The defendants sought leave to appeal a motion judge's decision granting the plaintiffs' motion to amend their statement of claim to convert their individual environmental contamination action into a class proceeding.

The defendants argued the court lacked jurisdiction to convert an individual action to a class proceeding, applied the wrong test for the amendment, and improperly allowed the addition of potentially statute-barred claims.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that the court had jurisdiction, that the Rule 26.01 test for amendments applied, and that limitation period issues were best left for the certification stage.