Environmental Law - ONCA

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 appellants were charged with unlawfully damaging and/or destroying protected rattlesnake habitat contrary to the Endangered Species Act, 2007.

They brought a s. 11(b) Charter application for a stay of proceedings based on unreasonable delay, which was dismissed by the trial judge.

The appellants then sought certiorari and s. 24(1) Charter relief in Superior Court, arguing the trial judge failed to characterize certain disclosure as "obviously relevant" and failed to attribute all delay to the Crown.

The Superior Court dismissed both applications.

The Court of Appeal upheld the dismissal, finding no jurisdictional error and rejecting the argument that the degree of relevance of outstanding disclosure alleviates the defence's obligation to act diligently.

The appeal was dismissed.

The appellants, Fredrick and Patricia Kentner, appealed the summary dismissal of their first appeal to the Provincial Offences Appeal Court, which concerned convictions and a sentence for environmental offences related to unlawful fill operations.

The appeal was based on claims of ineffective assistance of counsel by their paralegal and errors in the original conviction and sentence.

The Court of Appeal dismissed the appeal, finding no ineffective assistance as the appellants' failure to pay fines (a mandatory condition for appeal) was a deliberate choice unrelated to the paralegal's conduct, and a waiver application would have had no prospect of success.

The court also found no merit in the conviction appeal, affirming the trial judge's reliance on regulatory maps for jurisdiction, and no basis to interfere with the sentence, which included a $25,000 fine and a property rehabilitation order.

The appellants, a group of First Nations, appealed a Divisional Court decision that dismissed their application for judicial review.

They argued that Ontario's revocation of a forest management regulation (MNR-75) and amendments to the Environmental Assessment Act (Bill 197) breached the Crown's duty to consult and the honour of the Crown.

The Court of Appeal upheld the Divisional Court's decision, finding that the duty to consult does not apply to the law-making process (Bill 197) and that the revocation of MNR-75 did not give rise to a duty to consult as the alleged adverse effects were speculative and equivalent protections remained in force through other legally binding instruments.

The applicants sought an extension of time to bring a motion for leave to appeal an order of the motion judge.

The Court of Appeal dismissed the motion, finding that while the applicants had a timely intention to appeal, their explanation for the delay was inadequate, there was continuing prejudice to the public interest due to delayed enforcement of an environmental order, and the proposed appeal lacked merit.

The court emphasized that lack of merit alone can be determinative in such motions.

This appeal concerned a constitutional challenge by National Steel Car Limited to the costs of Ontario's Feed-in-Tariff (FIT) Program, arguing they constituted an unconstitutional tax disguised as a regulatory charge, primarily intended for economic stimulus.

The appellant contended that the program's true purpose was not related to electricity regulation.

The Court of Appeal upheld the application judge's decision, dismissing the appeal.

The court found that the FIT Program's primary purpose was regulatory, aimed at increasing renewable energy generation, improving air quality, planning for future supply needs, and encouraging Indigenous and community participation, with economic stimulus being an incidental, not dominant, characteristic.

The court also affirmed the sufficiency of the application judge's reasons and his assessment of expert witness bias.

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.

Vidhya Ramdas appealed two permanent injunction orders issued against her for undertaking unauthorized work on her property within a regulated wetland.

She argued the application judge erred by denying an adjournment and by not requiring the matter to proceed to trial due to contested facts.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the adjournment refusal given the overwhelming evidence that Ramdas proceeded with excavations without the requisite permits.

The court also provided observations on the duties of judges and counsel when dealing with self-represented litigants, noting that opposing counsel were remiss in not fully informing the application judge about the interim injunction and served materials.

The proposed interveners, Environmental Defence Canada Inc. and Federation of Ontario Naturalists, sought leave to intervene in an appeal concerning the statutory interpretation of s. 10(1) of the Endangered Species Act, 2007, which prohibits damage to habitats of endangered species.

The Town of South Bruce Peninsula opposed the intervention, arguing it would not offer a useful contribution.

The court granted leave to intervene, finding the matter to be of public interest with broad implications, and that the interveners, as reputable environmental organizations, could offer a unique and useful perspective on the interpretation of "damage" and the application of principles like de minimis and the precautionary principle, without causing injustice to the appellant.

The appellants, proposed representative plaintiffs in a securities class action, appealed a motion judge's order that granted leave for one misrepresentation claim but denied leave for others under the Ontario Securities Act.

The primary issues on appeal concerned the motion judge's approach to determining "public correction" of alleged misrepresentations, particularly by assuming falsity and applying a narrow textual analysis without considering market context.

The Court of Appeal found that the motion judge erred in principle by not engaging in a reasoned consideration of evidence regarding how alleged public corrections would be understood in the secondary market.

The Court remitted the issues of leave for capital expense/scheduling and accounting/financial reporting misrepresentations back to the lower court for redetermination, while upholding the denial of leave for certain environmental misrepresentations due to chronology issues.

A corn grower who neither purchased nor planted genetically modified corn seed brought a proposed class action against the seed manufacturer for negligence, negligent misrepresentation, and breach of the Competition Act.

The manufacturer had commercialized the seed in North America before obtaining approval in China.

The seed's traits commingled with all North American corn, causing China to ban all North American corn imports, resulting in a market glut and price collapse.

The motion judge struck all claims.

The Court of Appeal allowed the appeal in part, reinstating the negligence claim for premature commercialization while upholding dismissal of the misrepresentation and Competition Act claims.

The applicant, a construction company, sought leave to appeal from a judgment of the Ontario Court of Justice dismissing its appeal from sentences imposed for environmental offences.

The company was convicted of two counts of discharging material into a watercourse contrary to the Ontario Water Resources Act and two counts of failing to notify the Ministry of the Environment of those discharges.

The total sentence imposed was $220,000 in fines.

The applicant argued the fines were excessive and that aggravating and mitigating circumstances should have been weighed differently.

The Court of Appeal dismissed the motion for leave to appeal, finding no error of principle and noting that the sentencing judge's weighing of relevant factors was owed deference.

The appellant appealed a motion judge's order dismissing her motion to set aside a settlement regarding property in Highland Falls, New York and finding respondents in contempt.

The motion judge had granted the respondents' cross-motion for relief permitting implementation of the settlement terms.

The appellant raised four main grounds of appeal: (1) the motion judge erred in requiring leave to bring the motion; (2) the motion judge erred in rejecting her argument that the Final Order should be set aside due to environmental dumping issues; (3) the motion judge erred in approving a Deed Transfer that created an easement not contemplated by the Final Order; and (4) the motion judge erred in approving a Conservation Easement that was substantially more restrictive than agreed.

The Court of Appeal dismissed all grounds of appeal and upheld the motion judge's decision.

The Court of Appeal for Ontario considered a reference question regarding the constitutionality of the Greenhouse Gas Pollution Pricing Act, Part 5 of the Budget Implementation Act, 2018, No. 1.

The Act establishes a federal carbon pricing scheme applicable to provinces that have not adopted sufficiently stringent carbon pricing mechanisms.

The majority held that the Act is constitutional under the national concern branch of the Peace, Order, and Good Government power, as establishing minimum national standards to reduce greenhouse gas emissions is a matter of national concern.

The fuel charge and excess emissions charge were found to be valid regulatory charges, not taxes.

Justice Huscroft dissented, arguing that the Act improperly expands federal jurisdiction over greenhouse gas emissions, which are generated by virtually all provincial activities.

The appellants, two cottagers' associations, appealed a decision dismissing their application for a declaration that individual cottage sewage systems were subject to the Building Code Act rather than the Ontario Water Resources Act.

The central issue was whether the relevant "lot or parcel of land" for determining regulatory jurisdiction was the five registered parcels owned by the Grand River Conservation Authority or the individual cottage lots described in leases.

The Court of Appeal upheld the lower court's decision, finding that "lot or parcel of land" means land that is legally recognized for municipal and planning law purposes and for which title can be conveyed.

Since the individual cottage lots were not formally severed or registered, the five registered parcels constituted the relevant "lot or parcel of land," bringing the collective sewage systems (exceeding 10,000 litres per day) under the jurisdiction of the Ministry of the Environment.

Two appeals from a trial judgment concerning liability for environmental remediation of real property contaminated by dry cleaning solvents.

The trial judge found Fraser Hillary's Limited liable in nuisance and under section 99 of the Environmental Protection Act, awarding over $1.8 million in damages for remediation.

The action against David Hillary was dismissed.

Fraser appealed on grounds that the trial judge erred in finding it liable in nuisance and under the EPA.

The plaintiff appealed on grounds that the trial judge erred in failing to find negligence, failing to find the individual defendant liable in nuisance or negligence, and in assessing damages.

The appellate court dismissed both appeals, upholding the trial judgment.

Indigenous peoples from Ecuador obtained a US$9.5 billion judgment against Chevron Corporation for environmental devastation caused by oil exploration.

After failing to enforce the judgment in the United States due to findings of fraud by the plaintiffs' counsel, they sought to enforce it in Ontario against Chevron Canada, a seventh-level subsidiary.

The motion judge dismissed the claim, finding that Chevron Canada's shares and assets were not exigible under the Execution Act and that the corporate veil should not be pierced.

The appellants appealed, arguing both that the Execution Act permitted seizure of Chevron Canada's assets and that the corporate veil should be pierced in the interests of justice.

The Court of Appeal dismissed the appeal on the merits but reduced the costs award, recognizing the litigation as public interest litigation.

The appellants were convicted of two counts of breaching a regulation under the Conservation Authorities Act.

At trial, they were sentenced to fines of $5,000 each and a two-year probation order requiring reconstruction of a seawall.

The Conservation Authority appealed to the Provincial Offences Appeal Court, seeking removal of a home addition as a sentencing term.

The POAC judge allowed the appeal, set aside the original sentence, remitted the fines, and ordered removal of the addition.

The appellants appealed to the Court of Appeal for Ontario, arguing the POAC judge exceeded the scope of appellate review by reversing factual findings without identifying palpable and overriding error.

The Court of Appeal allowed the appeal, finding the POAC judge impermissibly substituted his own findings regarding whether the conduct constituted a flagrant and deliberate breach of the regulations.

A motion by Ecojustice for leave to intervene as a friend of the court in an appeal concerning environmental contamination liability.

The underlying judgment held the defendant corporation liable in nuisance and under the Environmental Protection Act for approximately $1.8 million in damages.

Ecojustice sought to provide submissions on environmental law implications and the retrospective application of statutory provisions.

The motion judge dismissed the intervention motion, finding that Ecojustice's proposed submissions would not materially assist the court and would cause injustice to the respondents by requiring them to address new arguments without adequate notice.

Homeowners sought to build a residence on property partially located on a floodplain designated as hazardous land under the Conservation Authorities Act.

The Nottawasaga Valley Conservation Authority denied the application.

The Mining and Lands Commissioner, conducting a de novo hearing, upheld the denial based on safety concerns and the need to maintain the natural floodway.

The Divisional Court reversed, applying a correctness standard and finding the regulation did not presumptively prohibit development.

The Court of Appeal reversed the Divisional Court, holding that the reasonableness standard applied to the commissioner's interpretation of the regulation and that the commissioner's decision was reasonable.