Environmental Law - OCA

In an environmental class action concerning historic nickel emissions from a refinery, the appellant challenged findings of nuisance, strict liability, and aggregate damages for alleged property value stigma following public concern about soil nickel levels.

The Court of Appeal held that a mere chemical alteration of soil, without detrimental effect on the land or its use, does not constitute actual, substantial, physical damage for private nuisance.

The court also held that Ontario law does not recognize strict liability based solely on allegedly extra-hazardous activity, and that the refinery operation was not a non-natural use within the Rylands v. Fletcher framework.

The claimants further failed to prove any compensable diminution in property values on a proper analysis of the valuation evidence.

The appeal was allowed and the action dismissed.

The appellant appealed a jury verdict awarding the elderly respondents damages, including $250,000 each in general non-pecuniary damages, after an oil spill destroyed their home.

The appellant argued that a mistrial should have been declared due to prejudicial evidence regarding insurance and settlement negotiations, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding no unfair prejudice to warrant a mistrial and concluding that while the general damages award was high, it was reasonably open to the jury given the devastating impact of the loss of the respondents' home.

Following the plaintiff's successful appeal to certify an environmental claim as a class proceeding, the court determined the appropriate costs awards for the certification motion, the Divisional Court appeal, and the Court of Appeal.

The court held that the plaintiff was entitled to costs for all stages, imputing success at the certification motion stage despite the plaintiff having substantially narrowed the claim on appeal.

Recognizing the public interest nature of the environmental class action under s. 31(1) of the Class Proceedings Act, the court awarded the plaintiff $90,000 for the motion, $65,000 for the Divisional Court appeal, and $50,000 for the Court of Appeal.

The appellant sought to certify a class proceeding against the respondent for environmental contamination caused by a nickel refinery in Port Colborne.

The motion judge and Divisional Court dismissed the certification motion.

On appeal, the Court of Appeal allowed the appeal and certified the action.

The Court found that the appellant's narrowed claim for property devaluation met all certification requirements under the Class Proceedings Act, 1992, including identifiable class, common issues, preferable procedure, and representative plaintiff.