Court File and Parties
CITATION: Swaita v. Her Majesty the Queen in Right of Ontario (Environment), 2016 ONSC 5785
COURT FILE NO.: CV-15-64260
DATE: 2016-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NAZLE SWAITA Plaintiff/Respondent
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF THE ENVIRONMENT) Defendant/Applicant
COUNSEL:
Stephen Appotive, for the Plaintiff/Respondent
Bill Manuel, for the Defendant/Applicant
HEARD: September 14, 2016
BEFORE: RAY, J
Reasons for Decision
[1] The defendant moves to strike the plaintiff’s Statement of Claim and seeks dismissal of the action on the ground that it fails to disclose a reasonable cause of action. The defendant relies on Rule 21 of the Rules of Civil Procedure.
[2] No evidence is permissible unless otherwise ordered, and the allegations in the pleading are taken to be proven for the purpose of this motion. It has been called a housekeeping provision intended to weed out the hopeless cases, while permitting those with some chance of success to proceed to trial. The onus is on the moving party to show that the action has no reasonable prospect of success[^1].
[3] The claim by the plaintiff arises out of oil clean up following an oil spill in September, 1990 that the plaintiff knew nothing about until the spring of 2013. The oil spill, which involved the release of approximately 9000 litres of oil on property owned by Shell, was 100 feet from the plaintiff’s property. In the spring of 2013 the plaintiff had the soil and groundwater tested on his property when he learned of the oil spill. In November 2013, the plaintiff gave permission to the City of Ottawa to take soil and groundwater samples on its property half way between the two properties. The testing confirmed that the plaintiff’s property and the southern portion of the roadway are both contaminated with petroleum, and that the source of the contamination was the Shell property. The plaintiff’s amended Statement of Claim claims negligence against the defendant for its part in the clean-up.
[4] The test on this motion requires that a claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. The threshold to maintain a cause of action is not a high one. A “germ” or “scintilla” of a cause of action will be sufficient to meet the threshold[^2].
[5] I am not satisfied the defendant has met the onus of showing it is ‘plain and obvious’ that the claim has no reasonable prospect of success.
[6] The defendant contends that in order for the plaintiff to succeed, the defendant must owe a private law duty of care to the plaintiff. The private law duty of care must either be brought by the pleaded facts within a relationship that has already been recognized as giving rise to a private law duty of care; or if not, the court must determine whether a private law duty of care is owed by applying the two-stage test developed by the House of Lords in Anns v. Merton as modified by the Supreme Court of Canada in Imperial Tobacco (the “Anns test”).
[7] The defendant’s argument primarily focussed on the structure of the Environmental Protection Act, (“EPA”), and contended that the Minister was under no duty to perform any of the described duties, that these were discretionary only, and gave rise to no duty of care. During oral argument, he clarified that he was relying entirely on the language of the EPA to demonstrate no private law duty of care was owed. The defendant’s position is that Pearson is on all fours and supports his position that the Minister owed only a public duty, not a private law duty[^3].
[8] The defendant contends that this case is not one that has been found to be in a category of cases where courts have recognized a duty of care, and therefore resort must be had to the Anns test. The defendant relies on Pearson v. Inco Ltd for the proposition that there was insufficient proximity to give rise to a duty of care in a class action proceeding against the defendant, and “the Crown’s duties were to the public as a whole and not to the individual members of the proposed class[^4].” The defendant contends that such a public duty is inconsistent with a private law duty of care to individuals, and since there is no evidence of any direct interaction with the plaintiff, stage one of the Anns test fails.
[9] In the alternative, the defendant takes the position that even if one proceeds to stage two of the Anns test, the following policy considerations should prevent the imposition of liability:
a. A finding of liability could lead to indeterminate liability; and
b. Quasi-judicial decisions are immune from liability[^5].
[10] The question of whether a private law duty is owed by the defendant to the plaintiff is dependent on the factual matrix disclosed in the Statement of Claim. Any principle of law requires a context. The plaintiff’s pleading is the context which, for the purpose of this type of motion, the factual matrix is accepted to be true.
[11] Stage one of the Anns test requires an analysis to determine whether “the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff[^6].” The requirements of proximity are diverse and depend upon the facts of each case. The Ontario Court of Appeal in Taylor held that the proximity enquiry must first focus on the applicable legislative scheme, and then the interaction between the plaintiff and the defendant in order to determine whether there is a sufficient degree of proximity to establish a prima facie duty of care[^7].
[12] The applicable legislative scheme is the EPA[^8]. The purpose of the EPA is to provide for the protection and conservation of the natural environment and conveys on the Minister certain duties and powers In order to carry out the purpose of the Act. The EPA prohibits the discharge of a contaminant into the natural environment if it causes or may cause an adverse effect and where a contaminant that has or may cause an adverse effect has been discharged, the Ministry must be notified forthwith. An adverse effect is defined in the broadest of terms to enable the Minister to fulfill the purpose of protecting the natural environment[^9].
[13] There is no doubt that all of the powers under the EPA are discretionary. However that is not, as the defendant contends, dispositive of a finding of a private law duty of care.
[14] Clearly, the purpose of the EPA, in part, is to protect individuals from the adverse effects of the discharge of a contaminant into the natural environment. The plaintiff is such an individual. The EPA anticipates liability arising from breach of a private law duty of care or negligence and permits an action against the Crown[^10]. While the powers under the EPA are entirely discretionary, it cannot therefore be said that the legislative scheme entirely excludes a private law duty of care given its wide expanse and application; and its explicit acknowledgement of possible liability for negligence. Justice Nordheimer in Pearson acknowledges as much in framing a hypothetical example to show how the Minister of the Environment would be found to be in a sufficiently close proximity to members of a proposed class to found a private law duty of care[^11]. I agree with him. I do not accept the defendant’s submission that Pearson in combination with the EPA is dispositive of the private law duty of care.
[15] Once the defendant embarks on a course of action (whether obliged to do so under a legislative scheme, or has chosen to do so under discretionary powers) the defendant is obliged to carry out that course of conduct without negligence. There is then a sufficient proximity for the basis of a private law duty of care.
[16] Examples can be found in the building inspection and mining inspection cases of the process of analysis that is to take place once a public authority exercise its powers[^12]. Many times the courts make the distinction between policy decisions and operational decisions to underscore the point[^13].
[17] The plaintiff’s Statement of Claim establishes that:
a. That the soil and groundwater sampling confirmed that the southern portion of the Plaintiffs property and Bank Street are both contaminated with petroleum and that the source of the contamination is the Shell property.
b. The Minister of the Environment (“MOE”) chose to exercise its powers and become involved in the investigation inspection, monitoring, decision making and approval of the remediation of the gasoline spill that occurred at the Shell property in 1990.
c. The Minister, in having made the decision to exercise its powers under the EPA and become involved In the remediation of the gasoline spill, had a duty to adequately exercise said powers by adequately investigating and inspecting the spill at the Shell property after becoming aware of the gasoline spill in 1990.
d. The MOE attended meetings both onsite and over the phone.
e. It was the MOE that decided where to terminate the excavation of the contaminated soil at specific boundaries located on the Shell Property.
f. The MOE owed a duty of care to the neighbouring property owners (Including the plaintiff) and breached that duty. Particulars of the MOE’s negligence are as follows (inter alia):
i. It failed to Inspect or adequately inspect the Shell property after becoming aware of the gasoline spill;
ii. It failed to order or require that the gasoline leak on the Shell property be remediated to the standards set out by the Environmental Protection Act;
iii. it failed to order or implement testing to trace the extent or movement of the contaminants;
iv. It failed to ensure that adequate or proper steps had been taken to ensure that the contamination was contained to the affected property, being the Shell property;
v. it failed to ensure that adequate or proper steps were taken in order to prevent the spread of the contamination Into the soil underneath Bank street and onto the neighbouring properties;
g. Damages are described and include the removal of contaminated soil, which by inference ought to have been removed or contained by the defendant.
[18] I am satisfied that the factual matrix in the Statement of Claim establishes sufficient proximity for the stage one Anns test.
[19] In summary, the MOE decided to get involved in the oil spill on the Shell property, made the decision as to where the excavation of contaminated should stop, erred in failing to ensure that the contaminants were contained; as a result the plaintiff’s property became contaminated; and the plaintiff sustained damages.
[20] Stage two of the Anns test requires an analysis to determine if there are policy reasons for not imposing liability. The defendant raises two issues; indeterminate liability and quasi-judicial decisions are immune from liability. This too is fact dependant. I am not persuaded that the defendant has made out a case for either of these issues.
[21] I do not accept the argument that if a private law duty of care is recognized then there would be no end to the matters for which the government would be required to provide compensation. This is the ‘flood gates’ argument. Since the liability of the defendant would be entirely dependent on a proximity finding, the flood gates argument has no merit. As in Donoghue v Stevenson, an analysis of who is your neighbour makes it highly restrictive[^14].The neighbour for the purpose of this action is those persons or neighbours who might reasonably be affected by the failure of the defendant to take steps to limit or avoid adverse effects when it decided to require that no further soil need be removed from the site of the contamination.
[22] The defendant’s reliance on Cooper for the proposition that the defendant must balance its public and private interests is not helpful. There is no overriding policy reason here as was the case in Cooper. In any event, once the defendant became involved in the remediation of the spill that occurred, it had become an operational decision, not a quasi-judicial decision.
[23] I do not accept the defendant’s contention that to permit the action to go forward makes it an insurer. Shell, Golder & Associates (soils experts at the time), and the City of Ottawa have also been sued in a separate proceeding for the same damages. It will be for a court to assess and apportion responsibility if any. I can see no policy reasons that ought to negate a finding of a duty of care to the plaintiff at this pleadings stage.
[24] The defendant’s motion is dismissed. The parties advised that they were in agreement that the successful party would be entitled to their costs c=fixed at $15,000. Cost to the plaintiff fixed at $15,000.
Honourable Justice Timothy Ray
Released: September 16, 2016
CITATION: Swaita v. Her Majesty the Queen in Right of Ontario (Environment), 2016 ONSC 5785
COURT FILE NO.: CV-15-64260
DATE: 2016-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NAZLE SWAITA Plaintiff/Respondent
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF THE ENVIRONMENT) Defendant/Applicant
REASONS FOR decision
Honourable Justice Timothy Ray
Released: September 16, 2016
[^1]: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, 2011 S.C.C. 42 para. 17-24 (SCC) [^2]: MacKinnon v. Ontario Municipal Employees Retirement Board, 2007, ONCA 874,para. 20; 1597203 Ontario Limited v. Ontario, 2007 CanLII 21966 at para. 12, (ONSC) [^3]: Pearson v. Inco Ltd, [2001] OJ No 4990 at para. 30 (ONSC) [^4]: [2001] O.J. No. 4990, [2001] O.T.C. 919,16 C.P.C.(5th)151. (ONSC) [^5]: Cooper v. Hobart, [2001] 3 S.C.R. 553 (SCC); [^6]: R. v. Imperial Tobacco Canada Ltd, note 2, para. 39.(SCC) [^7]: Taylor v. Canada (Attorney General), 2012 ONCA 479 at paras. 75 – 80. [^8]: Environmental Protection Act, R.S.O. 1990, c. E. 19. [^9]: R. v. Castonguay Blasting Ltd., 2013 SCC 52, 2013 CarswellOnt 14069, 2013 CarswellOnt 14070, 2013 S.C.C. 52, [2013] 3 S.C.R. 323, [2013] S.C.J. No. 52 at paras. 10 – 11. [^10]: EPA, note 8, section 180(2). [^11]: Note 3, para. 30. [^12]: Fullowka v. Pinkerton’s of Canada, [2010] 1 S.C.R. 5 at para. 26, 46 and 51 (SCC); Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2 (SCC) [^13]: Just v. British Columbia, [1989] 2 S.C.R. 1228, 1989 CanLII 16 (SCC); Eliopoulos, Litigation Trustee of Estate of Eliopoulos v. Her Majesty the Queen in Right of Ontario (2006) 2006 CanLII 37121 (ON CA), 82 O.R. (3d) 321 at para. 28 (ONCA) [^14]: Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562