Tamara Farber

The moving parties brought a motion to quash an appeal on jurisdictional grounds, arguing that the motion judge's decision dismissing a motion for summary judgment and to strike pleadings was interlocutory.

The Court of Appeal dismissed the motion to quash, finding that the motion judge's decision regarding the 2020 limitation issue was a final determination under Rule 21 of the Rules of Civil Procedure.

Therefore, the appeal properly lies to the Court of Appeal.

Following dismissal of the plaintiff's environmental contamination action after trial, two successful defendants sought substantial indemnity costs or, alternatively, a large mixed-scale costs award.

The court held that elevated costs were not justified because the action, while unsuccessful, was not meritless and the plaintiff's litigation conduct fell within the ordinary thrust and parry of adversarial litigation rather than reprehensible or sanction-worthy conduct.

Applying the governing principles of reasonableness, proportionality, and the Rule 57.01 factors, the court found the claimed partial indemnity costs reasonable given the complexity, duration, and importance of the case.

Costs were awarded on a partial indemnity basis in the amount of $573,334.89 inclusive of HST and disbursements.

The applicants sought leave to appeal the Director's decision to issue an Amended Environmental Compliance Approval (ECA) to an adjacent industrial facility, arguing the approval failed to consider noise and vibration impacts on their proposed residential development.

The Ontario Land Tribunal dismissed the application for leave to appeal.

The Tribunal found that the Director's decision was reasonable, as it followed Ministry guidelines and the proposed residential development was a hypothetical scenario pending zoning approval.

Furthermore, the applicants failed to establish that the Amended ECA could result in significant environmental harm, as the facility's emissions met established standards and the ECA included conditions for future reassessment if zoning changes occurred.

The appellants appealed the Director's decision to issue a Certificate of Property Use (CPU) for a former industrial property in Guelph, arguing that the CPU failed to adequately address the risk of contaminated groundwater migrating offsite to their adjacent properties.

The Tribunal found that while there was a risk of contaminant migration to one of the adjacent properties (10 Kingsmill), there was no risk of migration to the other (490 York).

The Tribunal held that the CPU's groundwater monitoring program and contingency requirements provided sufficient safeguards to address the potential for adverse effects, and that implementing physical barriers would be premature and potentially harmful given the complex fractured bedrock environment.

The Tribunal ordered minor amendments to the CPU to reclassify two monitoring wells as downgradient and to require the City to provide advance notice of groundwater sampling to the adjacent property owners, but otherwise confirmed the CPU.

Electrolux Home Care Products Canada Inc. brought a motion to be added as a Party to an appeal regarding a Certificate of Property Use issued for a neighbouring property.

Electrolux is a defendant in related civil proceedings concerning historic contamination.

The Director and the City opposed the motion.

The Tribunal found that Electrolux had a genuine interest in the proceeding because the issue of historic contamination was relevant to both the Tribunal appeal and the civil proceedings.

The Tribunal granted Electrolux Party status, limited to providing evidence and submissions on the specific issue of historic contamination, and required it to shelter under the appellants' issue without altering the existing procedural schedule.

At a case management conference regarding an appeal of a Director's Order under the Environmental Protection Act, the Tribunal considered requests for party status from Electrolux Home Care Products Canada Inc., Florence Lane Residents Group Inc., and the City of Guelph.

Finding that all three entities had a genuine and direct interest in the proceeding and would assist the Tribunal, party status was granted to each.

The parties also provided an update on settlement discussions and a subsequent case management conference was scheduled.

The Appellant brought a motion to stay a Director's Order requiring it to take actions to address potential contamination at its property, pending an appeal.

The Tribunal found it had the authority to grant a stay under section 143 of the Environmental Protection Act, as the historic contamination did not pose an immediate danger to health or safety.

However, applying the RJR MacDonald test, the Tribunal denied the stay.

The Appellant failed to establish irreparable harm, as its financial costs were potentially recoverable in ongoing civil litigation and did not outweigh the public interest in identifying and managing the source of trichloroethylene contamination.

The appellant brought a motion seeking an interim stay of a Director's Order requiring it to undertake actions to address contamination on its property.

The parties agreed to stay several items, but disputed whether Items 8 and 9, which required a Groundwater Monitoring Program and Report, could be stayed.

The Tribunal found that the items, as they related to existing wells, constituted an order to monitor, record, and report, which cannot be stayed under section 143(2)(a) of the Environmental Protection Act.

The motion for an interim stay of those items was dismissed, though requirements relating to newly installed wells were stayed pending the main motion.

The Ontario Land Tribunal held a Case Management Conference regarding appeals of a Certificate of Property Use issued for a property in Guelph.

The parties agreed on most issues for the hearing, and the Tribunal resolved a disagreement over the wording of one issue regarding contaminant migration.

The Tribunal scheduled a 12-day video hearing to commence in December 2023 and approved the Procedural Order and Issues List.

The appellant appealed a Director's Order issued by the Ministry of the Environment, Conservation and Parks regarding potential contamination at a site in Guelph.

At a Case Management Conference, the appellant sought an interim stay of several items in the Order pending a full motion for a stay.

The Tribunal granted an interim stay of Item 3 on consent, noting that the requirements for Items 4 through 7 are only triggered following the completion of Item 3.

The issue of whether the Tribunal has the authority to stay Items 8 and 9, which relate to a groundwater monitoring program, was adjourned to a further Case Management Conference.

The defendant buyer in an aborted real estate transaction sought to have her case managed and tried together with six other similar actions involving the same developer.

The defendant raised environmental issues as a defence to the plaintiff's claim for damages.

The court dismissed the request for case management and a common trial, finding that a single 30-day trial would cause delay and that proceeding with a summary trial in the present action would be more efficient and could provide early rulings to streamline the other cases.

The appellant appealed a trial judgment finding it liable in nuisance and negligence for the migration of chemical contaminants from its property to the respondent's property.

On appeal, the appellant argued the trial judge failed to assess incremental damage caused after the appellant had knowledge of the migration.

The Court of Appeal dismissed the appeal, holding that the appellant could not advance a fundamentally new theory of defence that was neither pleaded nor supported by evidence at trial.

The court also upheld the trial judge's discretionary award of prejudgment interest.

Intact, an insurer, appealed a summary judgment dismissing its action to recover $2.9 million in excess remediation payments for an environmental spill from other parties (pollutant owners/controllers and their insurer).

Intact sought recovery under s. 99(2)(a) of the Environmental Protection Act and the doctrine of unjust enrichment.

The Court of Appeal dismissed the appeal, holding that Intact, as a voluntary payor beyond its policy obligations and without direct harm to its own property, did not qualify for compensation under s. 99(2)(a) of the EPA.

Furthermore, the unjust enrichment claim failed because the primary benefit of the payments accrued to Intact's own insured, and the payments were made voluntarily with knowledge of the respondents' position.

The appellant appealed a summary judgment order dismissing its claims in nuisance and negligence relating to contamination of its lands.

The Court of Appeal upheld the motion judge's decision, finding that the appellant failed to produce evidence of negligence or that the respondents knew or ought to have known the facts necessary to ground an action in nuisance.

The court rejected the appellant's argument that the respondents had a duty to inspect or supervise the activities of dry-cleaning tenants on their property, and found that environmental reports obtained by the respondents did not put them on notice of contamination migrating to the appellant's lands.

The defendants (Litwacks) successfully obtained summary judgment and sought costs on a substantial indemnity basis for both the motion and the action.

The plaintiff (Sorbam Investments Ltd.) opposed the quantum and scale of costs.

The court considered the Litwacks' settlement offers, the complexity and importance of the issues, and the conduct of the parties, including the plaintiff's late submission of materials and technical objections.

While acknowledging the Litwacks' counsel's expertise, the court reduced the requested costs, particularly for out-of-town travel disbursements and excessive pre-trial time, and disallowed mediation costs.

The court fixed costs at an amount greater than partial indemnity but less than substantial indemnity, recognizing the Litwacks' settlement offers.

The plaintiffs brought a subrogated claim against W.O. Stinson & Son Ltd. for negligence following an oil tank leak in their basement.

The claim alleged Stinson was negligent in repositioning the tank and during annual maintenance, specifically regarding water dip tests, warnings about corrosion, and recognizing signs of damage.

The court found that Stinson met the standard of care required of a fuel oil service contractor and supplier, complying with TSSA regulations and industry standards.

The court also found that the plaintiffs failed to establish causation, as it could not be proven that "but for" Stinson's actions or omissions, the leak would not have occurred.

Consequently, the plaintiffs' claim was dismissed.

Damages were also assessed for completeness, with some criticisms of the remediation costs.

The plaintiff sued the defendants, adjacent property owners, for environmental contamination allegedly caused by a former dry-cleaning tenant on the defendants' lands.

The defendants moved for summary judgment to dismiss the claims of nuisance, negligence, and statutory liability under the Environmental Protection Act.

The court granted the motion, finding that the defendants had no knowledge of the contamination, did not authorize the nuisance, and owed no duty of care to monitor the tenant's activities.

The statutory claim failed because the defendants did not own or control the pollutant.

The appellant property owner appealed a summary judgment order finding it liable for unjust enrichment and quantum meruit after the respondent remediation company cleaned up a 20,000-litre canola oil spill on its property.

The appellant argued it received no direct benefit and that the respondent had no expectation of payment from it.

The Court of Appeal dismissed the appeal, holding that the appellant received a negative benefit by avoiding a potential remediation order from the Ministry of the Environment, and that the services were requested by an officer and director of the appellant.

The appellants appealed a Director's Order requiring remedial measures for groundwater contamination at a former manufacturing site.

Following a settlement agreement where Nortel agreed to pay $300,000 to the new property owner (Taggart) and Taggart agreed to a new Director's Order requiring remediation backed by financial assurance, the Director proposed to revoke the original order.

The Tribunal found the proposed revocation was consistent with the Environmental Protection Act and in the public interest, revoked the order, and dismissed the appeals.

Following settlement of an environmental claim between the plaintiff and a third party for $30,000 shortly before trial, the parties were unable to agree on the wording of the release and the quantum of costs.

The court considered whether a confidentiality clause and an expanded derivative indemnity enforcement clause should be included despite not being specified in the settlement offer.

The court held that such terms cannot be implied where they were not negotiated as part of the settlement agreement.

The court also determined the appropriate quantum of partial indemnity costs and assessed proportionality and fairness in light of the litigation circumstances.

Costs were fixed at $38,000 with pre‑judgment interest calculated according to the settlement terms.