Deavitt v. Greenly, et al, 2017 ONSC 5674
CITATION: Deavitt v. Greenly, et al, 2017 ONSC 5674
DIVISIONAL COURT FILE NO.: DC-16-988 and DC-16-989
DATE: 20170925
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: William Deavitt and Wendy Deavitt, Plaintiffs/Respondents in the Appeal
AND:
Terry Floyd Greenly, Sandra Lynn Greenly, Terratec Environmental Ltd./American Water, Tri-Land Environmental (1529086 Ontario Limited), Corporation of the Town of Cobourg, Cobourg Water Pollution Control Plants #1 and #2, Corporation of the Municipality of Trent Hills, Dr. Lynn Noseworthy and Her Majesty the Queen in Right of Ontario, Defendants/Appellants Greenly, Greenly and Cobourg
AND
Terratec Environmental Ltd. and 1529086 Ontario Limited, carrying on business as Triland Environmental, Third Parties
BEFORE: Kiteley, Wilton-Siegel, Broad JJ.
COUNSEL: D. Good, for the Plaintiffs/Respondents in the Appeal G. Carr, for Terry Floyd Greenly and Sandra Lynn Greenly/Appellants K. Muszynski, for the Corporation of the Town of Cobourg, Appellant D. Huard, for Terratec Environmental Ltd., Third Party
HEARD at Oshawa: June 26, 2017
ENDORSEMENT
By the Court
[1] This is an appeal[^1] by Terry Floyd Greenly and Sandra Lynn Greenly and the Town of Cobourg from the order made March 24, 2016 by B.G. MacDougall J.,[^2] in which he dismissed their motions for summary judgment on the claims for damages arising from nuisance, trespass to property and negligence all relating to the spreading of biosolids by the Greenlys on their farm. At the conclusion of submissions before this Court on June 26, 2017, the appeals were granted with reasons to follow. These are those reasons.
[2] Counsel for the three appellants had both filed an appeal book, factum and book of authorities. Mr. Good attended on behalf of the respondents, William Deavitt and Wendy Deavitt. Although he had not filed any responding material, he asked to make oral submissions. Counsel for the appellants were opposed on the basis that it was not fair that they would be expected to deal with any oral submissions without a factum to alert them to the position that the respondents would take on the appeal. The members of the panel accepted that submission and accordingly, Mr. Good made submissions only as to costs.
[3] Counsel for Terratec attended but had not filed responding material and did not make submissions.
[4] After announcing that the appeals were granted, counsel for the appellants and the respondents made submissions as to costs as indicated in the endorsement made June 26 and repeated below. Counsel pointed out that the Third Party claims were not resolved by the granting of the appeals. The Court indicated that if counsel for Terratec reported by June 29 that there was a further agreement on costs and/or dismissal of the outstanding claims, that agreement would be incorporated into this endorsement. Counsel did provide that confirmation and it is reflected in the order below.
Decision of Motion Judge
[5] The Greenlys have farmed their land since 1994. In 2001, the Respondents purchased the abutting property. Both properties are located in a rural setting in which the uses of the property are overwhelmingly of agriculture operations.
[6] Cobourg owned and operated the treatment plant that supplied biosolids. With the consent of the Greenlys, Cobourg applied to the Ministry of the Environment (the “MOE”) for a Certificate of Approval to spread biosolids on the Greenlys’ land which Certificate was issued. Terratec purchased, delivered and applied the biosolids.
[7] The biosolids that were alleged to be the substance that caused the nuisance, negligence and trespass to property were applied to the Greenlys’ land intermittently between 2005 and 2007 with the last occasion of the biosolid application on August 15, 2007.
[8] The Notice of Action was issued on October 21, 2009. On the limitations motion, the judge held[^3] that the claims of alleged damages arising from the applications of biosolids on the Greenlys’ fields prior to August 2007 were statute-barred but that any damages in respect of biosolids applications in August 2007 may have led to damage into the spring of 2008 which was within the two year limitation period. As a result, he ordered that the claim for damages for the August 2007 biosolids application could proceed to the next phase of the litigation.
[9] In support of its motion for summary judgment, counsel for Cobourg filed two affidavits of Bill Peeples (Water Pollution Control Manager for Cobourg), the affidavit of Lee-Ann McIlwham (Environmental Technician for Cobourg) and the affidavit of Anita Schoeleber (Environmental Technician for Cobourg). Counsel also relied on the transcript of the examination for discovery of Wendy Deavitt. In support of their motion for summary judgment, counsel for the Greenlys filed the affidavits of Jennifer Leno Scollars, Brian Wagner and Terry Floyd Greenly. In response to the motion for summary judgment, the respondents filed two affidavits of Wendy Deavitt. There was no evidence from William Deavitt.
[10] I refer to the decision of Woodley J. that includes her analysis of the bases upon which the motion judge dismissed the motion for summary judgment. Emphasis in the quoted excerpts below has been added.
A. Trespass claim against Greenlys
[11] At paragraph 19, Woodley J. identified the noteworthy portions of the ruling as follows:
After factoring in the “limits” of the evidence available to the plaintiffs, I find that there is evidence available more than what the defendants submit is, “an affidavit containing bald, self-serving allegations.”
. . . If there was ponding of biosolids on the Greenly fields, a reasonable inference could be drawn that there could well have been seepage of biosolids onto the Plaintiffs’ property which would constitute a trespass.. . .
Bearing in mind the principles set out above from the Hyrniak decision, I am satisfied that the trespass liability issue is an issue requiring a trial. I am unable to have a full appreciation of the evidence that is required to make dispositive findings on a summary judgment motion having taken into account whether the dispute on this issue could be fairly and justly adjudicated in a timely, affordable and proportionate procedure. The defendants’ motion on this issue is therefore dismissed.
B. Negligence claim against the Greenlys:
[12] At paragraph 20 Woodley J. identified the noteworthy portions of the ruling as follows:
The evidence filed on the motions by the defendants on whether any of the biosolids did or did not seep onto the Plaintiffs’ lands is restricted to: 1) the conditions that the MOE set out in the Provisional Certificate of Approval that the defendant say were complied with, however, as noted earlier, the inspections were restricted to the application days and none thereafter; and, (ii) Greenly attesting that “all conditions were complied with”. . . .
. . . it would be open to the court to accept Wendy Deavitt’s testimony that she did observe biosolids “pooling” on the Greenly fields after the biosolids applications, and then subsequently observed the biosolids seeping onto her property after the August 2007 biosolids applications.
. . . the MOE conditions applicable to the use of biosolids are “minimum” conditions only and therefore to only say in response to an allegation of negligence, “I followed the conditions”, might not be a complete answer to whether or not, in these particular circumstances, that satisfies the acknowledged “duty of care”.
I find that the negligence issue, against the Greenlys, is a genuine issue requiring a trial. The evidence before me does not qualify for a fair and justly adjudication of this issue even taking into account the, “timely, affordable, and proportionate” factors set in Hyrniak.
C. Negligence claim against Cobourg
[13] At paragraph 21 Woodley J. identified the noteworthy portions of the ruling as follows:
On the evidence before me, I find that the biosolids were processed and treated as required under the applicable legislation. There is no evidence that Cobourg did not comply with all of the provincial requirements with respect to the testing and sampling as required by the provincial legislation.
However, as stated above, the conditions set out in the Provisional Certificate of Approval were “minimum conditions” so, even if they were complied with, they may not have been adequate in the particular circumstances of this case. . .
It would also be open for the plaintiffs to argue that, given that the plaintiffs’ property was at a lower elevation than the Greenly fields, and that the MOE had noted that in an area of the Greenly fields closest to the plaintiffs’ property, there was a greater than 9% slope, combined with the fact that the biosolids were spread on the fields as opposed to being incorporated into the soils, it could be reasonably argued that this particular situation required the Cobourg’s inspector to return to the site after the applications to confirm that there was no “ponding” or seepage of the biosolids from the Greenlys fields. This did not happen.
With respect to the plaintiff’s claim of negligence against Cobourg, there is evidence before me to confirm that the plaintiffs could be successful in establishing that the duty of care on Cobourg was breached if it is found that there was seepage of the biosolids onto the plaintiffs property.
For the reasons set out above regarding the issue of negligence of the Greenlys, I am of the same view that this issue requires a trial and Cobourg’s summary judgment motion on this issue is also dismissed.
D. Nuisance claim against the Greenlys
[14] At paragraph 22 Woodley J. identified the noteworthy portions of the ruling as follows:
- The plaintiffs . . . summarize their claim in nuisance:
The essence of the nuisance in this case is the transmission of a noxious substance from the Greenly farm to the Deavitt property with the effect that the Deavitts have had their enjoyment of their property interfered with. . . .
Damages for injury to health can be recovered in an action for nuisance if there is an unreasonable interference with the use and enjoyment of land. . .
Even if the plaintiffs were unable to prove that the Greenly spreading of biosolids did not cause physical damage to the plaintiffs’ property, they could still assert a claim for damages for “amenity nuisance”, that is, that the odour from the biosolids substantially interfered with the use and enjoyment of their lands.
The Issue and Standard of Review
[15] Counsel for Cobourg and the Greenlys submitted that the motion judge adopted an outdated and incorrect approach to summary judgment by failing to properly evaluate the respondents’ case based on the evidence before him. Counsel both take the position that the motion judge erred in law in failing to apply the principles relating to summary judgment as outlined by the Supreme Court in Hryniak v. Mauldin.[^4] If they succeed on the appeal, they ask that this court dismiss all remaining claims against the appellants.
[16] This appeal involved questions of law that are reviewed for correctness.[^5]
Analysis:
[17] The affidavits from Wendy Deavitt included bald allegations that she observed “contaminated runoff” coming from the Greenlys’ fields and “seeping” into her property at least until February, 2008; that she observed pooling of an unidentified liquid on the Greenlys’ property in the spring of 2008; that she experienced various ailments due to the presence of biosolids on the Greenlys’ property; that her animals got sick due to the presence of biosolids on the Greenlys’ property; and that the value of her property decreased as a result of the Greenlys’ application of biosolids on their property.
[18] However, other than bald allegations, the affidavits of Wendy Deavitt did not include evidence on the following points: that any runoff from the Greenlys’ property at any time entered their property; that the liquid pooling on the Greenlys’ fields was anything other than water; that the sickness of their animals during the relevant time was causally linked to the application of the biosolids; that the respondents’ property value decreased, let alone that it decreased due to the application of the biosolids; and that any ailments the respondents experienced during the relevant time were causally linked to the application of the biosolids. The respondents left the property in 2009 and according to the evidence, took no samples of material at any time.
[19] The respondents also provided no expert evidence.
[20] In other words, the evidence on behalf of the respondents would not improve if there were a trial.
A. Trespass Claim against Greenlys
[21] The tort of trespass to land protects a person’s possession of land against wrongful interference. It involves only direct interference with the plaintiff’s possession of land, is actionable without proof of actual damage, and must be committed either intentionally or negligently in order to be actionable. Once the trespass (i.e., the direct interference with possession) is proven, the defendant has the onus of disproving that it was committed wrongfully.[^6]
[22] The respondents offered no evidence that the “liquid” claimed to seep onto their property was “contaminated” or “biosolids”. Nor was there evidence that the “liquid” was ever tested or that such test results would be available at trial. Furthermore, there was no evidence of intention.
[23] The respondents were required to “put their best foot forward”. If there was no proof at the hearing of the summary judgment motion as to all of the elements of the tort of trespass, the court must assume that the evidence will not be available at trial. The motion judge erred in law by finding that the respondents had established that there was a genuine issue requiring a trial as it relates to the trespass claim.
B. Negligence Claims against Greenlys
[24] In order to establish liability as against the Greenlys or Cobourg, the respondents are required to establish that a duty of care existed and that the appellants fell below the applicable standard of care. Once the standard of care is established, the court makes findings of fact to determine whether the standard was met. If the standard of care is not met, factual and legal causation must be considered to determine liability in negligence.
[25] As indicated at paragraphs 61 and 75 of the decision of the motion judge, the Greenlys conceded that they owed the plaintiffs a duty of care in the circumstances of their application of biosolids but they did not concede the standard of care required of them to discharge their duty of care. The motion judge did not describe the duty or the standard of care and it is not articulated in the statement of claim. In order to succeed, the respondents have to establish on a balance of probabilities the nature of the standard of care, the manner in which the appellants fell below the standard of care, that the respondents incurred damages, and that the damages they incurred were as a result of the conduct of the appellants. The respondents provided no expert evidence on any of those elements.
[26] In Krawchuk v. Scherbak[^7] the Court of Appeal held that there are two situations where it is acceptable to determine professional negligence without the benefit of expert evidence: (a) where there are non-technical matters of which an ordinary person may be expected to have knowledge; and (b) where the matter is so egregious that the negligence is obvious. Neither of those situations exists in this case. While Krawchuk dealt with professional negligence, the same principles apply in this case. The issues involved are technical, especially as they relate to the “noxious” fumes, “seepage”, identity of the “contaminated” run-off, and the damages alleged to have been suffered to the health of the respondents and their animals.
[27] The respondents offered no evidence that would establish that any of the allegations actually occurred or that would support a reasonable inference that they occurred. The motion judge noted that the biosolids were processed and treated as required under applicable regulations. There was no evidence that established that any other standards were customary or required. In addition, the conditions of the Provisional Certificate of Approval were complied with in the application of the biosolids. There was no evidence that the application of the biosolids was “not in line with farming practices”; no evidence that the liquid (pooling or otherwise) was contaminated, noxious, or caused harm or damage to the Respondents’ health or the health of their animals; and no evidence that required set backs were breached or that any other aspect of the application of the biosolids was negligent.
[28] In addition, the respondents offered no evidence that the conduct of appellants was so egregious that negligence could be found in a prima facie or self-evident manner without recourse to experts.
[29] In the absence of any evidence, expert or otherwise, that establishes the standard of care, the respondents were unable to prove their claim of negligence as against the Greenlys. The motion judge erred in law in finding that the respondent had established that there was a genuine issue requiring a trial with respect to the negligence claim against the Greenlys.
C. Negligence claim against Cobourg
[30] The respondents alleged that there is an implied statutory duty of care on Cobourg to protect public health and safety and prevent adverse effects as related to environmental issues and contaminated lands. The respondents also alleged that Cobourg permitted the spread of biosolids on the Greenlys’ fields from Cobourg’s Sewage Treatment Plant that also created a duty of care.
[31] The respondents provided no evidence as to the existence of either duty of care and no evidence of any breach of such duties of care. The motion judge held that the biosolids were processed and treated as required under the applicable legislation and there was no evidence that Cobourg had not complied with all of the provincial requirements with respect to testing and sampling. However, he went on to find at paragraph 81 that the Provisional Certificate of Approval constituted “minimum conditions” and therefore, even if they had been complied with, they may not have been adequate in the particular circumstances of the case. Furthermore, the motion judge observed that Cobourg had contracted with an agent to apply the biosolids and, at paragraph 82, he found that if the applications of the biosolids were in some way improper or negligently done, Cobourg could be responsible. At paragraph 83, the motion judge went on to hypothesize, as the principal basis for his determination, that it would be open for the respondents to pursue an argument based on the combined effect of the difference in elevation and the manner of application of the biosolids.
[32] The Respondents offered no expert evidence or other evidence that would establish the standard of care, the breach or causation including, in particular, any expert evidence that would support the hypothesis. The motion judge erred in law in finding that the Greenlys had established a genuine issue requiring a trial with respect to the negligence claim against Cobourg.
D. Nuisance claim against the Greenlys
[33] A private nuisance is an interference with an owner or occupier’s use, enjoyment or comfort that is substantial and unreasonable in all of the circumstances.[^8]
[34] The Greenlys were farmers and their property was used for an agricultural purpose in accordance with the zoning by-laws. The Greenlys provided reports from the Ministry of the Environment and from Cobourg which described the odours as either “acceptable” or as “not terribly strong odour”. Assuming that the respondents provided evidence from which the motion judge could find that their use, enjoyment or comfort had been interfered with, the only evidence that the odour was offensive was the subjective evidence of Wendy Deavitt while the test to establish nuisance is objective.
[35] The motion judge erred in law in finding that the respondents had established a genuine issue requiring a trial with respect to the nuisance claim against the Greenlys.
Conclusion
[36] On a motion for summary judgment under rule 20.04, the motion judge must first determine if there is a genuine issue requiring a trial based only on the evidence. If the motion judge concludes that there is a genuine issue requiring a trial s/he must then determine if a trial can be avoided by using the fact finding powers under rules 20.04(2.1) and (2.2).
[37] The motion judge erred in law in finding that the respondents had established a genuine issue for trial with respect to each of the torts. Furthermore, he erred in law in failing to use the enhanced powers available to him such as weighing the evidence, drawing reasonable inferences and assessing credibility. Had he done so, he would have been driven to the conclusion that the respondents did not have evidence to substantiate any of their claims.
[38] Instead of holding the respondent to the requirement that they “put their best foot forward”, the motion judge erred in law by applying the outdated “full appreciation” test and conjectured, as demonstrated in the highlighted passages from the decision, as to what evidence the respondents might advance at trial and what inferences a trial judge might make.
[39] The motion judge erred in law in failing to find that the respondents did not meet the burden of proof required by the Supreme Court.
[40] The respondents failed to establish that there was a genuine issue requiring a trial with respect to any of the claims and accordingly the motion for summary judgment should have been granted. The appeals by the Greenlys and Cobourg are allowed.
[41] Logically, it follows from the granting of the appeal that the action as against those defendants should be dismissed.
ORDER TO GO AS FOLLOWS:
[42] The appeals by the Greenlys and Cobourg from the order made March 24, 2016 are allowed.
[43] The claims, including cross-claims, in action #125/09 are dismissed.
[44] On consent and as a consequence of the order in paragraph 43 the Third Party Claim #125/09A as against Terratec Environmental Ltd. and 1529086 Ontario Limited, carrying on business as Triland Environmental is dismissed without costs.
[45] The plaintiffs shall pay to the Corporation of the Town of Cobourg $60,000 with respect to costs of its motion for summary judgment, costs of this appeal and costs of the case.
[46] The plaintiffs shall pay to Terry Floyd Greenly and Sandra Lynn Greenly $20,000 with respect to the costs of their motion for summary judgment, costs of this appeal and costs of the case.
Kiteley J.
Wilton-Siegel J.
Broad J.
Date: September 25, 2017
[^1]: With leave from Woodley J. 2016 ONSC 5146 [^2]: 2016 ONSC 1693 [^3]: 2014 ONSC 5069 [^4]: 2014 SCC 7 [^5]: Housen v. Nikolaisen, 2002 SCC 33 [^6]: Lewis N. Klar Tort Law, 4th ed. (Thomson Carswell, 2008) at page 106 was referred to by the motion judge. The author has published a sixth edition. [^7]: 2011 ONCA 352 at paras. 130-135 [^8]: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at para. 19