Environmental Law - ONCA

The appellant railway company appealed a partial summary judgment dismissing its claims for ongoing coal tar contamination as an abuse of process.

The appellant had previously commenced an action in 1989 for historical and continuing coal tar migration, which was dismissed for inordinate delay and failure to preserve evidence.

The appellant commenced a new action in 2014 claiming damages for continuing migration since 2012.

The Court of Appeal dismissed the appeal, holding that the continuing tort claims were exhausted by the dismissal of the 1989 action, and allowing the 2014 action to proceed would undermine finality and bring the administration of justice into disrepute.

The appellant City of Hamilton appealed a trial judgment finding it and ArcelorMittal Dofasco Inc. (AMD) jointly and severally liable for damages arising from periodic flooding of the respondent National Steel Car Limited's industrial property caused by wastewater discharge into a clogged drainage channel.

The trial judge awarded compensatory damages of approximately $5.3 million (apportioned equally between the defendants), punitive damages of $400,000 against the City and $500,000 against AMD, and granted a mandatory injunction requiring remediation and maintenance of the channel.

The City appealed on four grounds: (1) the equal apportionment of liability; (2) failure to find mitigation by National; (3) the punitive damages award; and (4) the terms of the injunction.

The Court of Appeal dismissed the appeal except for a clarification to the injunction language.

The Crown sought leave to appeal a decision of the Ontario Court of Justice that overturned the respondent's conviction under the Endangered Species Act for damaging Blanding's turtle habitat.

The appeal judge had entered an acquittal after finding the circumstantial evidence of turtle sightings from prior and subsequent years insufficient to prove the land was habitat at the time of the offence.

The Court of Appeal held that while the appeal judge's conclusion raised a question of law alone, the Crown failed to demonstrate that granting leave was essential in the public interest or for the due administration of justice.

The decision below was highly fact-specific and unlikely to establish a binding precedent requiring direct evidence of habitat use.

Leave to appeal was denied, and the respondent's request for costs was dismissed.

The appellant municipality was charged with contraventions under the Endangered Species Act for road maintenance activities that allegedly harmed an endangered butterfly species.

The municipality sought declaratory relief stating that its road maintenance obligations under the Municipal Act superseded the Endangered Species Act, exempting it from compliance.

The application judge dismissed the application as premature and not ripe for adjudication, noting the municipality had not attempted to obtain a permit.

The Court of Appeal dismissed the appeal, upholding the finding that the issues were not justiciable and should be addressed either through the permit process or in the ongoing quasi-criminal prosecution.

The appellants, several local governments, appealed the dismissal of their application for declarations and injunctions against Canadian National Railway Company (CN) regarding the construction of an intermodal hub.

The appellants sought to compel CN to comply with over 65 provincial and municipal laws.

The application judge dismissed the application, finding that the majority of the claims lacked a factual foundation and were premature, and that the three specific bylaws at issue impaired the core of the federal railway undertaking under the doctrine of interjurisdictional immunity.

The Court of Appeal upheld the decision, confirming that the construction and operation of the intermodal hub is a vital part of a federal railway undertaking and that the municipal bylaws requiring official plan amendments impaired this core federal power.

The appeal and the application for leave to appeal costs were dismissed.

The appellants appealed their convictions for offences under the Fish and Wildlife Conservation Act and Fishing Licensing Regulation, specifically concerning the interpretation of an exemption related to buying baitfish for commercial purposes without a license.

The Court of Appeal upheld the lower court's decision, finding that the exemption in s. 32(1) of the Regulation applies only to the general prohibition in s. 51(1) of the FWCA, not to the specific commercial baitfish prohibition in s. 31.3(1)(b) of the Regulation.

The court also rejected a due diligence/mistake of fact defence, reiterating that misinterpretation of law is not a valid defence.

The Town of South Bruce Peninsula appealed its conviction for damaging Piping Plover habitat under the Endangered Species Act, 2007.

The appeal raised issues regarding the interpretation of "damage" under the Act and the admissibility of expert evidence from a Ministry biologist.

The Court of Appeal dismissed the appeal, upholding the lower court's interpretation of "damage" as including actions that make habitat less attractive, useful, or valuable from the species' perspective, and affirming the admissibility of the expert's evidence, despite concerns about impartiality, as the trial judge's decision was entitled to deference and the evidence of another expert was sufficient.

The London Transit Commission (LTC) appealed a motion judge's decision to strike its third-party claim against Eaton Industries (Canada) Company (Eaton) as statute-barred under the Limitations Act, 2002.

LTC argued the motion judge erred in determining when it had actual or constructive knowledge of the claim.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that LTC had actual or constructive knowledge of its claim against Eaton by May 22, 2013, and failed to exercise due diligence in investigating the contamination.

The court rejected LTC's arguments regarding a general rule for discoverability in environmental claims, continuing torts, and standalone claims, and declined to consider a new argument under the Environmental Protection Act.

The appellants appealed a trial judgment finding them liable for a fuel oil spill at the respondents' home.

The trial judge found that the appellants negligently failed to identify that the respondents' fuel oil tank, which was labelled for indoor use, was installed outdoors, and failed to tag it as non-compliant.

The appellants argued the trial judge erred by applying the 'material contribution' test for causation instead of the 'but for' test.

The Court of Appeal dismissed the appeal, holding that while the trial judge articulated the wrong test, she effectively applied the 'but for' test by finding the spill would not have occurred if the appellants had fulfilled their regulatory obligations.

The Court also upheld the trial judge's apportionment of liability, finding of contributory negligence, and damages assessment.

On appeal from a trial judgment involving an oil tank leak at a residential property.

The trial judge found Thompson Fuels negligent for failing to conduct required comprehensive inspections and water testing of fuel oil tanks, but found the Technical Standards and Safety Authority (TSSA) not liable.

The plaintiff was found 60% contributorily negligent and Thompson Fuels 40% liable.

The appellate court upheld the trial judgment with one adjustment regarding betterment related to a line of credit.

The court addressed complex issues including the enforceability of exclusion clauses in consumer contracts, the application of regulatory obligations to civil liability, Pierringer agreements, and the calculation of damages in environmental contamination cases.

The appellant, a farm property owner, sought to terminate a three-year farm lease with the respondents after the first crop season, claiming the respondents failed to provide chemical fertilizer application rates in the form she contended was required by the lease.

The trial judge found the appellant was not entitled to terminate the lease and awarded the respondents damages of $64,051.02 for lost profits from the 2013 and 2014 crop seasons.

The Court of Appeal upheld the trial decision, finding that the lease did not contain a provision permitting early termination for this alleged breach, and that the respondents' handwritten disclosure of application rates was adequate performance.

The defendant brought a motion under section 137.1 of the Courts of Justice Act to dismiss a breach of contract action.

The plaintiff alleged that the defendant breached a settlement agreement by giving testimony before the Ontario Municipal Board regarding the environmental impact of the plaintiff's proposed development.

The motion judge dismissed the motion, finding that although the testimony constituted expression relating to a matter of public interest, the plaintiff had satisfied the merits and public interest hurdles under section 137.1(4).

The Court of Appeal allowed the appeal, holding that the plaintiff failed to meet its burden under section 137.1(4)(a) regarding substantial merit and that the motion judge erred in interpreting "substantial merit" as referring to the seriousness of the subject matter rather than the potential merits of the claim.

The Court also found insufficient evidence of damages to satisfy the public interest balancing under section 137.1(4)(b).

An appeal from a Divisional Court decision upholding a Tribunal award of damages to a farm equipment dealer against a manufacturer/distributor for improper non-renewal of a dealership agreement.

The core issue concerned the retrospective application of Ontario Regulation 123/06 (Dealership Agreements Regulation) to an existing dealership agreement and the proper interpretation of the mandatory renewal provisions.

The manufacturer provided notice of non-renewal under the original agreement terms, but the Tribunal found this non-compliant with the Regulation's mandatory process requiring disclosure of all reasons for non-renewal and an opportunity for the dealer to respond.

The Court of Appeal upheld the Tribunal's liability findings and damages award, dismissed the manufacturer's appeal, and allowed the dealer's cross-appeal on costs by restoring the Tribunal's costs award that had been quashed by the Divisional Court.

The applicant sought a stay of a Renewable Energy Approval pending a motion for leave to appeal from a Divisional Court order dismissing its application for judicial review.

The Divisional Court had found that the Ministry's letter regarding construction compliance was not a reviewable statutory power of decision, and that the applicant was attempting to disguise a challenge to the REA itself.

The Court of Appeal addressed the jurisdictional question of whether the Divisional Court's decision could be reviewed by the Court of Appeal or only by a panel of the Divisional Court under section 21(5) of the Courts of Justice Act.

The Court held that the panel review process applies and that the applicant must exhaust the Divisional Court's remedial jurisdiction before appealing to the Court of Appeal.

The appellant's property was damaged by flooding following significant rainfalls in May 2013.

The floodwaters originated from adjacent land expropriated by the respondent municipality in 2009 for a construction project.

The appellant had commenced an injurious affection claim before the Ontario Municipal Board in 2011.

Following the flooding, the appellant commenced an action in Superior Court in June 2015.

The respondent moved for summary judgment on the basis that the action was statute-barred under the Limitations Act, 2002.

The motion judge found the claim was discoverable when the flooding occurred in May 2013.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider whether an action in Superior Court would be an appropriate means to seek a remedy, and by misapprehending the evidence regarding the appellant's belief that the OMB had exclusive jurisdiction over injurious affection claims.

An aerodrome operator appealed an order requiring it to file a permit application under a new municipal by-law for fill and site alteration work performed before the by-law was enacted.

The court considered whether the by-law could be applied retroactively to work completed under a prior regulatory regime.

The appeal was allowed on the basis that the by-law had no retroactive effect and could not be applied to work performed before its enactment.

Whirlpool appealed a decision dismissing its application for a finding of conflict of interest.

Whirlpool had sold contaminated industrial land to Chavila and Outrigger (affiliates of 863) at a reduced price in exchange for an indemnity agreement obligating them to defend Whirlpool against any claims arising from the property's condition.

When CP and Oxford brought contribution and indemnity claims against Whirlpool, Chavila and Outrigger appointed counsel to defend Whirlpool.

Whirlpool argued this created a conflict of interest because the appointed counsel would be taking instructions from entities affiliated with 863, the plaintiff in the main action against CP and Oxford, and would be unable to raise a limitation defence that would benefit Whirlpool but harm 863.

The majority found no conflict existed because Whirlpool's immediate interests were not directly adverse to those of Chavila and Outrigger, and the indemnity agreement contemplated this scenario.

The dissent argued a patent conflict existed and that Whirlpool was entitled to independent counsel free of conflicts.