COURT OF APPEAL FOR ONTARIO

CITATION: 1317424 Ontario Inc., v. Chrysler Canada Inc., 2015 ONCA 104

DATE: 20150213

DOCKET: C59238

Feldman, Simmons and Pardu JJ.A.

BETWEEN

Mark French, a Trustee of the Chippewas of the Thames Land Claim Trust, on behalf of 1317424 Ontario Inc. and Mark French, a Trustee of the Chippewas of the Thames Land Claim Trust

Plaintiffs (Appellants)

and

Chrysler Canada Inc., Benchmark Real Estate Services Canada Inc., Charles Brudenell, George Murray Shipley & Bell, Frank Fazio, RSJ Holdings Inc. and The D’Andrea Group Inc.

Defendants (Respondent)

and

176695 Canada Inc., Chester Engineers, Inc. (a.k.a. The Chester Engineers) and N.A. Water Systems, LLC

Third Parties

Raymond F. Leach and Michael A. Polvere, for the appellants

Barry Bresner, for the respondent, Chrysler Canada Inc.

Jennifer Fairfax and Patrick G. Welsh, for the third party N.A. Water Systems, LLC

Heard: January 14, 2015

On appeal from the order of Justice Thomas A. Heeney of the Superior Court of Justice, dated August 6, 2014, with reasons reported at 2014 ONSC 4573, 86 C.E.L.R. (3d) 139.

ENDORSEMENT

[1] The appellants sought to amend their statement of claim to include a claim in nuisance. The motion was dismissed on the ground that on the facts pled, the claim in nuisance is not a viable claim in law. The appellants argue that the scope of nuisance is not finally settled, and that the claim should therefore be allowed to proceed. The specific issue is whether a claim in nuisance can be made when the nuisance emanates from the plaintiff’s own land and not from outside that land.

[2] The land in issue was operated as a foundry and asbestos insulation producer for several decades, resulting in significant contamination. It was acquired by Chrysler in 1987 and decommissioned to then-current standards. In 1989, Chrysler sold the land to The D’Andrea Group Inc., with a certificate from the Ministry of the Environment confirming that the land had been decommissioned in accordance with existing regulatory requirements. The D’Andrea Group in turn sold the land to the appellants in 1999. The appellants’ suit against Chrysler is for negligence in decommissioning the property and failing to remediate it, negligent misstatement that Chrysler had properly remediated the land, and the creation of a stigma to the land.

[3] The appellants later sought to amend to add a claim against Chrysler for nuisance by failing to remediate, causing an unreasonable interference with the use and enjoyment of the land. That amendment was denied by the motion judge. He concluded that, to form a tenable nuisance claim, the interference with the use and enjoyment of the claimant’s land must originate outside the plaintiff’s land. See the Honourable Allen M. Linden and Bruce Feldthusen, Halsbury’s Laws of Canada: Torts, 2012 Reissue (Markham: LexisNexis Canada Inc., 2012), at p. 243. One cannot therefore have a claim in nuisance for the unreasonable use of one’s own land.

[4] The appellants relied on Morguard Real Estate Investment Turst v. ERM Canada Corp., 2012 ONSC 4195, 68 C.E.L.R. (3d) 175, a recent pleadings decision of the Ontario Superior Court of Justice. In that case, three property owners hired a company to remediate contamination on their properties. The contamination originated on one of the properties and spread onto the two others. Two of the owners, including the owner of the originally contaminated property, then sued the remediation company in nuisance for failing to remediate the land. The issue addressed by the court was whether a remediation company that did not own or occupy land adjoining the plaintiffs’ land could be sued in nuisance. The court declined to strike the nuisance claim on that basis. However, in so doing, the court did not address the fact that one of the claimants was the owner of the offending property itself and therefore the law of nuisance could not apply. We agree with the motion judge in this case that Morguard does not assist the appellants.

[5] The issue of whether a nuisance must emanate from another’s land was recently specifically addressed by the Nova Scotia Court of Appeal in W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavation Ltd., 2007 NSCA 92, 258 N.S.R. (2d) 41.

[6] In Whebby, at para. 128, Cromwell J.A. (as he then was) stated that regardless of who causes the nuisance, the interference with the plaintiff’s land must be indirect and not direct, meaning it must originate elsewhere than on the plaintiff’s land. He explained, at para. 131, that this distinction is not a mere legal technicality, but that it reflects

the role of the modern law of nuisance as a means of reconciling conflicting interests in connection with competing uses of land: see Royal Anne Hotel [Co. v. Ashcroft, 1979 2776 (BC CA), [1979] 2 W.W.R. 462 (B.C.C.A).] at 467; Tock v St. John’s Metropolitan Area Board, 1989 14 (SCC), [1989] 2 S.C.R. 1180 per LaForest, J. at 1196. Before there can be conflicting interests in connection with the use of land, there must be uses of different lands which come into conflict.

[7] In Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19, this court set out the four factors to consider on a motion to amend a pleading under rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. One factor is that an amendment will not be allowed if it would have been struck out had it been originally pleaded. Applying the analysis from Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, a claim will be struck out under rule 21.01(1)(b) if it has no reasonable chance of success. See also R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 20-25.

[8] The appellants are effectively arguing that they should be entitled to seek to fundamentally change the law of nuisance. That would be a tenable position if, for example, the appellants sought to expand the tort to a new fact situation not before considered. However, the tort of nuisance has certain defined, long-standing characteristics, which courts have considered to be essential to the tort. In particular, the alleged nuisance must originate somewhere other than on the plaintiff’s land. In this case, the appellants seek to establish the tort where that essential characteristic is missing. Their claim has no reasonable chance of success.

[9] The appeal is therefore dismissed, with costs fixed in the amount of $12,000 inclusive of disbursements and HST.

“K. Feldman J.A.”

“J. Simmons J.A.”

“G. Pardu J.A.”