COURT FILE NO.: 14-62032 A1

DATE: 20190123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MOJGAN SOLEIMANI and ARASH MADIPOUR

Plaintiffs

– and –

ROLLAND LEVESQUE and 1273460 ONTARIO LTD. c.o.b. as ROLLAND LEVESQUE & FILS

Defendants

– and –

NORTHBRIDGE GENERAL INSURANCE CORPORATION

Third Party

John Dempster, Counsel for the Plaintiff

Michael S. Hebert and Cheryl Gerhardt McLuckie Counsel for the Defendants

– and –

ANDREW MCKENNA and GOWLING LAFLEUR HENDERSON LLP

Intervenors

Allan R. O’Brien and Frances Shapiro Munn, Counsel for the Intervenors

HEARD: July 10 and 17, 2018

REASONS FOR DECISION

(Motion for summary judgment)

C.T. HACKLAND, J.

OVERVIEW

[1] This is a motion for summary judgment brought by the defendants seeking the dismissal of the plaintiffs’ action on the basis that it was commenced after the 2 year limitation period in section 4 of the Limitations Act. The action was commenced by notice of action on September 19, 2014 and involves tortious claims between neighboring property owners arising out of the alleged contamination of the plaintiffs’ property by hydro carbons in groundwater, said to be emanating from the defendants’ property onto the plaintiffs’ property. The groundwater contamination issues were first identified in two environmental site assessment reports prepared for the plaintiffs in September and October of 2010 in connection with a refinancing of their property. Shortly after receiving these reports, the plaintiffs retained a solicitor, Andrew McKenna, at Gowling Lafleur Henderson LLP, who put the defendants on notice of a possible claim.

[2] Promptly following the discovery of the contamination, the plaintiffs notified the Ministry of the Environment (MOE) who became and remain involved in addressing the contamination issues. The plaintiffs contend that the involvement of the MOE at their request was a reasonable means to attempt to remediate the damages they have suffered, such that they should not be taken to have known that a court proceeding against the defendants would be an “appropriate means” to remedy their claims within the meaning of s. 5(1)(a)(iv) of the Limitations Act, 2002 (the Act).

[3] This factual situation engages the extensive and somewhat difficult jurisprudence interpreting the “appropriate means” exception in subsection 5(1)(a)(iv) of the Act, to the general rule that the two year limitation period under s. 4 of the Act runs from a point at which a claim is discovered, being the day on which the claimants first knew of their loss or damage and that it was caused or contributed to by an act or omission of the defendants (see subsection 5(1)(a)(i-iii) of the Act).

[4] The appropriate means exception in subsection 5(1)(a)(iv) of the Act has recently been explained by the Court of Appeal in Nasr Hospitality Services Inc. v. Intact Insurance, (2018), 2018 ONCA 725, 142 O.R. (3d) 561 (C.A.), in which Brown J.A. stated:

[46] In commencing his analysis under s. 5(1)(a)(iv) of the Act, the motion judge properly noted the general proposition that the determination of when an action is an appropriate means to seek to remedy an injury, loss or damage depends upon the specific factual or statutory setting of each individual case: 407 ETR Concession Co. v. Day (2016), 2016 ONCA 709, 133 O.R. (3d) 762 [additional citations omitted].

[52] In Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, Pardu J.A. observed that the jurisprudence discloses two circumstances in which the issue of appropriate means most often delays the date on which a claim was discovered. First, resorting to legal action might be inappropriate in cases where the plaintiff relied on the superior knowledge and expertise of the defendant, especially where the defendant undertook efforts to ameliorate the loss: at para. 26. Second, a legal action might not be appropriate if an alternative dispute resolution process “offers an adequate alternative remedy and that process has not fully run its course”.

[5] The parties have filed an extensive record on this motion. The parties are not opposed to the determination of the limitation issue by way of summary judgment on this record. As the Supreme Court decided in Hryniak v. Mauldin, 2014 SCC 7, 2014 SCC7, (at para. 49) “there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits” of the motion where the record and the circumstances allow the judge to make the necessary findings of fact and to apply the law to the facts and is a proportionate, more expeditious and less expensive means for reaching a final adjudication on the merits. I am satisfied this is such a case.

THE FACTS

[6] As noted, this is an environmental pollution case involving neighboring property owners. Both before and after this action was commenced, the MOE has been involved in addressing the contamination issues, including the important factual question of where the pollutants are emanating from. Specifically, the plaintiffs emphasize that a key question has, until recently, been whether the contamination of the water table emanates from the defendants’ property onto the plaintiffs’ property or, as the defendants have contended, does the contamination in fact emanate from the plaintiffs’ property onto the defendants’ property?

[7] In October 2010 the plaintiffs learned from an environmental site assessment that the groundwater under their property was contaminated. They immediately reported the contamination to the MOE and retained a lawyer. MOE involvement has gone on over the last 8 years and continues to date. The MOE has been directing the defendants to take various actions to investigate and remediate the contamination.

[8] For a number of years, the defendants have operated an automotive garage on their property. There were several underground waste oil tanks on this property. These tanks dated from the 1950s and the last of which was removed in October of 2017 as recommended in investigations carried out on the defendants’ behalf, as directed by the MOE. The original two reports obtained by the plaintiffs in October of 2010 (the Pinchin reports) suggested that the “impacts identified have likely migrated from the adjacent automotive repair facility to the North of the site”, in other words from the defendants’ property.

[9] On November 4, 2010, the plaintiff’s lawyer wrote a letter putting the defendants on notice “that the hydro carbon contamination on [his clients’] property has resulted in significant financial damages” for which his clients intended to pursue a claim.

[10] MOE staff wrote to the defendants advising that they should take steps to confirm the location of the pollution, contain any leaky tanks on their property, and remove contaminants on the property.

[11] The plaintiffs’ lawyer’s evidence on this motion is that he did not consider that the October 2010 Pinchin reports obtained by his clients started the running of the two year limitation period. It was his view that the Environmental Protection Act, R.S.O. 1990, c. E19 (EPA) already provided a regime through which the defendants could be ordered to clean up the contamination. It was his understanding that the Ministry had confirmed that it was taking steps to confirm the presence and source of the contamination and that it would take further steps to have the defendants remove the contaminants in accordance with the EPA. The lawyer’s view and that of his clients was that once the MOE satisfied itself that the defendants’ property was the source of the contamination of the plaintiffs’ property, it would take steps to order the defendants to clean up the site, on the property of both parties.

[12] The lawyer’s evidence was further that at some point there could be a claim against the defendants but that this depended on the MOE’s findings in the future regarding the source of the contamination. Equally, the plaintiffs’ damages would depend, in his view, on any orders that the MOE issued to the defendants to clean up the contamination, and whether those orders were complied with. In other words the solicitor believed an action to be premature or inappropriate at that point in time.

[13] The parties are in agreement, and I also find, that as of November 2010 when the plaintiffs’ lawyer wrote to the defendants advising of his clients’ claim, the plaintiffs should be deemed to be aware of, or in the words of the Act to have discovered the information required in s. 5(1)(a)(i-iii) of the Act. I find that they were aware that they had suffered damages as a result of the tortious acts or omissions on the part of the defendants. As noted, this motion focuses on whether the plaintiffs had also discovered the fourth element in s. 5(1)(a) of the Act, which is whether a court proceeding would be an appropriate means to seek to remedy their losses, within the meaning of sub-section 5(1)(a)(iv).

[14] Over the years there remained an ongoing dispute between the parties as to the source of the contamination.

[15] The evidence indicates that in order to economize on costs, one of the plaintiffs, Mojgan Madipour, dealt with the MOE herself, rather than through her solicitor. Between March 2011 -May 2014, a period just in excess of 3 years, the defendants received no communications from plaintiffs’ lawyer.

[16] On May 27, 2014 the plaintiffs’ solicitor advised of the plaintiffs’ intention to commence an action. The defendants took the position at that point that the plaintiffs’ claim was statute barred.

[17] A Notice of Action was issued by the plaintiffs on September 19, 2014 followed by a Statement of Claim on October 16, 2014. This was, as noted, about 4 years after the plaintiffs’ lawyer wrote a letter to the defendants advising of the plaintiffs’ claims. In the Statement of Claim, the plaintiffs, make the following claims:

(a) damages for losses and expenses resulting from contamination;

(b) a declaration that the defendants are responsible for the contamination;

(c) an order requiring the defendants to take all appropriate and necessary measures at its costs to prevent any further migration of contaminants onto, through or under the Plaintiffs’ property;

(d) “stigma damages” for post-remedial loss in value of the plaintiffs’ property; and

(e) full recovery of the plaintiffs’ legal and other professional costs and expenses incurred in investigating and remediating the contamination.

[18] The defendants delivered their Statement of Defence and Counterclaim on December 19, 2014. This document claimed damages of $1.5 million for the costs of remediating the defendants’ lands, damages in the amount of $1 million for the diminution in value of the defendants’ property and $100,000 for engineering and consulting costs. The defendants’ pleadings also maintained their ongoing position that because the plaintiffs were located up gradient from the defendants’ property, the direction of groundwater flow is from the plaintiffs’ towards the defendants’ property and accordingly the plaintiffs’ property was the actual source of contamination.

[19] The plaintiffs subsequently retained new counsel and a negligence action was commenced against their former lawyer. The former lawyer is intervening through counsel in this motion.

[20] The plaintiffs argue that the evidence shows that over the last 8 years, and continuing, the MOE has been actively involved and has been directing the defendants to investigate and remediate the contamination. They contrast these actions with the inactivity in the present civil action, which was started in September 2014, and then followed by a case conference only in May 15, 2017 at which time a timetable was set for the present motion. Examinations for discovery have not yet been held.

[21] The plaintiffs contend that since 2010 the MOE “process” has resulted in significant investigative and remediation work being performed by the defendants at the defendants’ own expense and the active and ongoing involvement of the MOE has achieved important results in their favour on the issues of both liability and damages.

[22] On the issue of liability, the defendants from 2010 and continuing to the present, have maintained that they are not at fault for the contamination found on the plaintiffs’ property, and that the contamination emanates from the plaintiffs’ property.

[23] I accept that the evidence supports the plaintiffs’ argument that as a result of the involvement of the MOE, the defendants were forced to do significant investigative work at their expense, culminating in the reports of both the plaintiffs’ consultants Exp Services Inc. (“Exp”) dated August 29, 2016, and the defendants’ consultants CM3 Environmental Inc. (“CM3”) dated September 27, 2016. In both of these reports, the groundwater flow is confirmed as emanating from the defendants’ property onto the plaintiffs’ property.

[24] The evidence supports the plaintiffs’contention that, in addition to eliminating the damages that normally would have been incurred by the plaintiffs to perform all of the investigative work between 2010 and 2016, the MOE reviewed the Exp and CM3 reports and directed the defendants to submit a further work plan. This resulted in the revised work plan of CM3 dated July 27, 2017, and additional work being done by the defendants, at their expense, in October 2017 to remove an underground tank, and to remove contaminated soil and groundwater from their property in the vicinity of the underground tank, as well as in the corner of the plaintiffs’ property adjacent to the underground tank.

[25] The evidence indicates the investigation and remediation work continues. As the defendants proceeded with remediation work being done on the plaintiffs’ lands in October, 2017, the defendants retained a structural engineer to inspect the foundation of the plaintiffs’ garage. This resulted in the report of DFA Engineering Services dated October 18, 2017.

[26] Following the completion of the work done by the defendants in October 2017, a report of Exp dated November 15, 2017 was provided to the MOE, as was the report of CM3 dated February 8, 2018. On March 29, 2018, the MOE circulated their internal technical review memorandum and directed the defendants to submit an additional work plan by June 1, 2018.

[27] In summary, the plaintiffs contend the MOE “process” has therefore not yet been concluded and it is expected that the MOE will continue to direct the defendants to perform the necessary work, at the defendants’ expense, to remediate the contamination on the plaintiffs’ property and to prevent recontamination.

[28] Notwithstanding these developments the defendants, at this point, have not conceded that the groundwater contamination emanates from their property.

[29] The intervenors take the position that as long as the 2 year limitation did not expire prior to the commencement of the action, the proceeding is not statute barred and the motion should be dismissed. They argue it is not necessary for the court to determine when the limitation began to run, if indeed it has commenced to run at this point.

ISSUES

[30] The issue on this motion is whether the involvement of the MOE in the investigation and remediation of the ground water contamination problems underlying the dispute between the parties is the type of process that, when engaged, delays the commencement of the 2 year limitation period in s. 4 of the Limitations Act. More specifically does the MOE involvement, on the facts of this case prevent the limitation period from running until at least a point in time within 2 years prior to the commencement of this action.

THE POSITION OF THE PARTIES

[31] The plaintiffs and intervenors argue that at the time the action was commenced and for at least 2 years prior to that point the MOE involvement, which they refer to as “a process”, prevented the commencement of the limitation period. The plaintiffs say the MOE interventions continued to do so until at least 2018 when the issue of where the contamination was coming from was resolved by expert investigations funded by the defendants and directed by the MOE. Prior to 2018, the plaintiffs contend, there were sufficient unresolved issues that the plaintiffs could reasonably believe that a court proceeding was not an appropriate remedy within the meaning of s. 5(1)(a)(iv) of the Limitations Act.

[32] The defendants take the position that the 2 year limitation period commenced by November 2010 when the plaintiffs received the initial environmental assessments and had their lawyer write to the defendants outlining their claims and advising of a possible legal proceeding. They characterize the delay in commencing a court proceeding as purely tactical and deny that the MOE’s involvement in the matter is the type of alternative proceeding which the jurisprudence recognizes as preventing a claimant, acting reasonably, from appreciating or discovering that a court proceeding would be an appropriate means to remedy their loss or damages.

DISCUSSION

[33] The case law indicates that the determination of when an action is an appropriate means to seek to remedy an injury, loss or damage, depends on the specific factual or statutory setting of each individual case, see 407 ETR Concession Co. v. Day 2016 ONCA 709.

[34] Section 5(1) of the Limitation Act sets out when a claim is discovered. The day on which the plaintiffs’ claim was discovered is the day on which the plaintiffs knew or ought to have known the four matters set out in section 5(1)(a):

5.(1) A claim is discovered on the earlier of:

(a) The day on which the person with the claim first knew,

i) That the injury, loss or damage had occurred,

ii) That the injury, loss or damage was caused by or contributed to by an act or omission,

iii) That the act or omission was that of the person against whom the claim is made, and

iv) That, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. (emphasis added)

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[35] In J.C. v. Farant, 2018 ONCA 2692, Justice Mew explained the meaning of subsection 5(2):

The effect of this provision is to presume that the date of discovery of a claim is the date on which the act or omission on which the claim is based took place, unless the plaintiff proves the contrary. To rebut that presumption, the plaintiff must establish that the claim was not discovered until some other date, based on the four criteria set out in subsection 5(1)(a).

[36] In a recent decision Gillham v. Lake of Bays (Township), 2018 ONCA 667, the Court of Appeal held that it was an error for the motion’s judge to fail to consider whether s. 5(1)(a)(iv) of the Limitations Act applied in the context of a construction claim based on the structural failure of the plaintiffs’ retaining wall and deck posts. The motions judge held that the limitation ran as the plaintiff was aware of the facts necessary to establish his cause of action. The Court of Appeal held that the motion judge should have gone on to analyze the criterion under s. 5(a)(iv) of the Limitations Act before concluding that a court proceeding was an appropriate means of obtaining relief. In Gillham, the defendants, who were the builder and the excavation contractor, had minimized the plaintiffs’ concerns and advised him to stand by and to allow resettlement of the earth to occur as a likely remedy to the problem.

[37] The observations of Roberts J.A. in Gillham are instructive:

[33] The motion judge erred in failing to undertake an analysis of the criterion under s. 5(1)(a)(iv) of the Act. That the appellants might have a “cause of action” against the defendants, as the motion judge found, is not the end of the analysis under s. 5(1) of the Act.

[34] Therefore, the motion judge had to consider whether the appellants had a claim as defined under the Act. In considering whether the appellants knew or should have known that they had a claim, the motion judge had to go on to consider whether, having regard to the nature of the injury, loss or damage, the appellants knew or should have known that a proceeding would be an appropriate means to seek to remedy it. This omission by the motion judge is an error of law: Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469, at paras. 21 and 35.

[35] Section 5(1)(a)(iv) represents a legislative addition to the other factors under the discoverability analysis. As Laskin J.A. explained in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, at paras. 33-34:

The appropriateness of bringing an action was not an element of the former limitations statute or the common law discoverability rule. This added element can have the effect – as it does in this case – of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant’s actions.

Also, when an action is “appropriate” depends on the specific factual or statutory setting of each individual case: see Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 161, at para. 21. Case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because each case will turn on its own facts.

[38] The plaintiffs rely on the decisions of the Court of Appeal in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 and Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325. In these two cases the Court of Appeal held that the limitation period may be suspended under s. 5(1)(a)(iv) of the Limitations Act in two general circumstances: (1) where the defendant is an expert or person similarly situate on whom the plaintiff relies to remedy the alleged wrongdoing without recourse to the courts, rendering the proceeding unnecessary; and (2) where there is an alternate process to resolve the dispute between the parties and eliminate the plaintiff’s loss and that process has been engaged.

[39] In Presidential MSH, the court held that a negligence claim against an accountant for the late filing of the plaintiff’s income tax returns could not be said to have been discovered under section 5(1) of the Limitations Act until such time as the CRA appeal process had been completed. Prior to that point, having regard to the nature of the loss, it could not be said that “a proceeding would be an appropriate means to seek to remedy it”, within subsection 5(1)(a)(iv) of the Limitations Act.

[40] In Presidential MSH, Pardu J.A., summarized the law as follows:

[17] The motion judge did not have the benefit of this court’s decision in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, 403 D.L.R. (4th) 485. In that case, Laskin J.A. discussed the purpose of s. 5(1)(a)(iv) of the Act. He noted, at para. 48:

[I]t seems to me one reason why the legislature added “appropriate means” as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation. As my colleague Juriansz J.A. noted in his dissenting reasons in Hare v. Hare, courts take a dim view of unnecessary litigation. [Citation omitted.]

Laskin J.A. also noted, at para. 33, that the appropriateness criterion in s. 5(1)(a)(iv) was not an element of the former limitations statute or the common law discoverability rule, and that this added element “can have the effect … of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant’s actions.”

[18] Laskin J.A. stated, at para. 34, that whether an action is appropriate depends on the specific factual or statutory setting of each individual case. Because of this, case law applying s. 5(1)(a)(iv) is of limited assistance. And in Brown,Feldman J.A. noted that “there any many factual issues that will influence the outcome”: at para. 21.

[41] Of particular relevance to the present motion, Pardu J.A. went on to say that a second line of cases applying s. 5(1)(a)(iv) of the Limitations Act involves “other processes having the potential to resolve a dispute between the parties and eliminate the plaintiff’s loss”. For example, in the Court of Appeal’s decision in ETR Concession Co., the running of the limitation period was held to have not commenced while the defendant pursued his remedies under a statutory licence denial process which could have made civil proceedings unnecessary.

[42] In the present case the plaintiffs and the intervenor rely on the “other processes” line of cases and say that the MOE’s interventions, which engaged both parties on the issues in dispute, was the type of alternative process which will prevent the running of the limitation period. In contrast, the defendants deny the application of this line of cases to the circumstances of the present action. The defendants rely heavily on the following observations of Pardu J.A. in Presidential MSR:

[45] Many of the cases dealing with the effect of alternative processes on the appropriateness of a court proceeding have applied the concept of a proceeding being “legally appropriate” articulated by this court in Markel. Markel involved a dispute between sophisticated insurers claiming indemnity under statutory loss transfer rules. The limitations issue that arose concerned whether a legal proceeding was “inappropriate” while settlement discussions between the parties were ongoing and thus, whether a claim was not discovered until these negotiations broke down.

[46] Recall that, in Markel, the court held that the term “appropriate” in s. 5(1)(a)(iv) means “legally appropriate”. This interpretation avoided entangling courts in the task of having to “assess [the] tone and tenor of communications in search of a clear denial” that would indicate the breakdown of negotiations between the parties. That would permit a plaintiff to delay the discoverability of a claim for “some tactical or other reason” and “inject an unacceptable element of uncertainty into the law of limitation of actions” (at para. 34).

[47] Similarly, in 407 ETR Concession Company, at para. 47, Laskin J.A. stated that the use of the term “legally appropriate” in Markel “signified that a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the court to decide when settlement discussions had become fruitless”.

[48] These cases instruct that if a plaintiff relies on the exhaustion of some alternative process, such as an administrative or other process, as suspending the discovery of its claim, the date on which that alternative process has run its course or is exhausted must be reasonably certain or ascertainable by a court. In Markel, the date on which settlement discussions between the parties ran their course, and thus the date on which the plaintiff’s claim was purportedly discovered, was not sufficiently certain or ascertainable by the court. By contrast, in Figliolini it was reasonably certain that the foreign appeal process had been exhausted on the day that the foreign appellate court had released its judgment, and in Lipson it was reasonably certain that the CCRA appeal process ran its course on the date that the 2008 test cases were settled. (emphasis added)

[43] Pardu J.A. in Presidential MSR concluded her analysis by observing “…this is not a case where the claimant sought to toll the operation of the limitation period by relying on the continuation of an alternative process whose end date was uncertain or not reasonably ascertainable. It was clear that the end date of the CRA appeal in this case was… when the CRA responded to the appellant’s notice of objection advising that it intended to confirm the assessments.”

[44] As can be seen, in order that the 2 year limitation be tolled by some form of alternate administrative process, the end or conclusion date must be reasonably ascertainable. This involves a consideration of the statutory context governing the process and the factual nature of the dispute. Moreover, as the Court of Appeal has pointed out, the choice of the alternate administrative process cannot be based simply on tactical considerations. The defendants contend that the involvement of the MOE in this case fails to prevent the limitation period from running for both of these reasons. For the reasons that follow, I agree with the defendants’ position.

[45] In considering whether the MOE’s interventions in this case constitute a legally appropriate means to remedy the plaintiffs’ damages it is necessary to recognize that the provisions of the EPA do not provide a dispute resolution process or mechanism. The steps the MOE chooses to take are in the MOE’s discretion. The MOE has no power to award damages or compensation to the plaintiffs. Neither the previsions of the EPA nor the facts of this case allow the court to say with any certainty when the MOE’s involvement would come to an end so as to determine when the limitation period might commence.

[46] Moreover the MOE intervention cannot result in a declaration of responsibility for the contamination nor can it award damages for stigma nor the full recovery of legal, engineering and other costs and expenses nor damages for other economic losses, all as claimed in the plaintiffs’ statement of claim.

[47] On the other hand, I recognize that the MOE has substantial powers in the exercise of their discretion to require the defendants to investigate the cause of and remediate contamination on both the defendants’ and the plaintiffs’ lands and to direct that this be done at the defendants’ cost.

[48] The EPA broadly empowers the MOE to make orders to clean up contamination and prevent the discharge of contaminants into the environment. For instance, pursuant to section 17 of the EPA, the Director has the power to issue “remedial orders” where a person has caused or permitted a contaminant to be discharged into the natural environmental. This section empowers the Director to order that person to repair the injury or damage:

Where any person causes or permits the discharge of a contaminant into the natural environment, so that land, water, property, animal life, plant life, or human health or safety is injured, damaged or endangered, the Director may order the person to,

a) Repair the injury or damage;

b) Prevent the injury or damage; or

c) Where the discharge has damaged or endangered or is likely to damage or endanger existing water supplies, provide temporary or permanent alternate water supplies.

[49] Pursuant to section 157.1 of the EPA, a provincial officer can also order a person who owns or who has management or control or property to take “preventive measures” to:

(a) Prevent or reduce the risk of a discharge of a contaminant into the natural environment;

(b) Prevent, decrease or eliminate an adverse affect that may result from:

(i) The discharge of a contaminant from the undertaking, or

(ii) The presence or discharge of a contaminant in, on or under the property.

[50] In determining whether a court action is an appropriate remedy pursuant to s. 5(1)(a)(iv) of the Act, Laskin J.A. in ETR Concession instructed that the court should consider (a) the nature of the plaintiffs’ loss; (b) the circumstances of the plaintiffs, and (c) efficiency of the court.

[51] This is an environmental claim. The major dispute between the parties has been, at least until very recently, whether the pollutants are emanating from the defendants’ land onto the plaintiffs’ land or, as the defendants claim, from the plaintiffs’ land onto the defendants’ land. On the facts of this case, there can be no doubt that the MOE’s interventions have provided a means to determine the source of the contamination and remedial orders have been made.

[52] The plaintiffs submit that given their particular situation, the MOE interventions may substantially reduce the plaintiffs’ damages and therefore it would be inappropriate to require the plaintiffs to prematurely resort to court proceedings while the regulatory process under the EPA is ongoing.

[53] In my view the principal difficulty with the plaintiffs’ position is that there is no reasonable basis to ascertain when the MOE’s involvement will end. To date, it has gone on in excess of eight years with no end point in site. I agree with the defendants’ submission that the EPA does not in any sense establish an alternative adjudication or dispute resolution process for contamination claims. While the MOE has significant remedial powers to direct the investigation and remediation of ground water contamination, these powers are outside the land owners’ control and are discretionary in nature. These powers do not include any right to award economic damages or to grant declaratory orders, which is a significant component of the relief sought in this action.

[54] The plaintiffs have argued that the limitation period should not run until the causation question was resolved (within the last two years) concerning the direction of flow of the contaminants. They suggest that prior to resolving that issue it would have been unreasonable to commence court proceedings.

[55] The plaintiffs emphasize the benefits they have achieved by allowing the MOE to deal with the contamination. Thanks to the MOE exercising its statutory powers to direct the investigation and remediation of the groundwater contamination, the plaintiffs have avoided the considerable engineering costs of investigating the problem, of obtaining experts’ reports and of soil removal and other remedial measures. They have also avoided or lessened the litigation risk of a possible determination that the contamination emanated from their own property, rather than the defendants’ property.

[56] In effect, the plaintiffs can be said, in retrospect, to have made a wise economic choice in leaving the contamination issue in the hands of the MOE. However this was manifestly a tactical decision made by the plaintiffs to avoid the costs and litigation risks of investigating their claim and establishing their case on liability and damages. They chose to stand back for some four years prior to commencing this action to allow the MOE to move matters forward. The case law is clear that tactical decisions will not toll the limitation period, see Markel and Presidential MSR. As Mew J. observed in J.C. v. Farant at para 87:

Another recent decision, Gravelle (CodePro Manufacturing) v. Denis Grigoras Law Office, 2018 ONCA 396, reinforced the principle that a tactical decision to delay the commencement of proceedings will not, absent other factors – such as the pursuit of alternative means to resolve the very claim that I the subject matter of the action – delay the running of time. At para. 6, the Court of Appeal stated:

The appellant decided for tactical reasons not to bring his action against the respondents until the arbitration proceedings were completed. He was entitled to make this choice, but he must live with the consequences of it.

[57] The defendants properly submit that a limitation period is not prevented from running until such time as a plaintiff is able to establish liability for his or her damages or for the full extent of the damages claimed see Longo v. MacLaren Art Centre, 2014 ONCA 526. The case law is also clear that knowledge of the full extent of the damages is not required to trigger a limitation period, and the mere discovery of new facts does not re-start a limitation period see Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156.

[58] The plaintiffs’ initial position was that the MOE’s ongoing involvement continues to toll the limitation period. However in subsequent submissions the position is taken that the limitation would only begin to run in the 2017-18 time period due to further engineering studies revealing that the contamination was worse than originally thought, extending onto the plaintiffs’ property under their garage and resulting in the need to demolish and then rebuild the garage.

[59] In my view this position is untenable and inconsistent with the appellate case law binding on this court. The circumstances triggering the running of the limitation cannot be a moving target incapable of being ascertained with the level of reasonable certainty required. This would create a situation in which the plaintiffs essentially determine when the limitation period commences.

[60] I am also unable to accept the intervenors’ alternative argument that having regard to the nature of the plaintiffs’ action, ie: an environmental contamination claim with a significant causation issue, the plaintiffs should not be taken to have known prior to September 19, 2012 (2 years prior to issuing their notice of action), that a court proceeding was an appropriate means to remedy their losses. The intervenors’ point to the contested issue as to the source of contamination in regard to which the MOE was requiring the defendants to carry out further studies. As discussed previously this particular issue may have been largely resolved in studies undertaken in August and September of 2016, some 6 years after the groundwater contamination was first identified and 2 years after this action was commenced.

[61] In my opinion the approach advocated by the plaintiffs and the intervenors ignores the requirement that the appropriate means exception in sub-section 5(1)(a)(iv) of the Act be restricted to factual situations in which the alternate avenue of redress is legally appropriate in the sense that the courts must not be required to interpret the parties’ communications or negotiations or, be required to analyze the significance of the technical findings of ongoing engineering studies and importantly, there needs to be a fixed end point.

[62] The plaintiffs also fairly point out that the defendants have not been prejudiced by any delay in the commencement of the action. There has been no loss of witnesses or evidence and indeed a great quantity of technical information has been developed. A competing consideration however is that the appropriate means reference in subsection 5(1)(a)(iv) of the Act was intended to avoid needless or unnecessary litigation in the courts and in the present case the MOE’s involvement will not avoid a court process.

[63] No doubt the appropriate means exception in the Limitations Act involves a weighing of competing interests. I would adopt the observation of Mew, J. in J.C v. Farant:

[110] … although the cases largely focus on fairness to the plaintiff, the “discretion” afforded by subsection 5(1)(a)(iv) must also be informed by one of the purposes of statutes of limitation: “peace” or “repose”. The theory is that, at some point after the occurrence of conduct that might be actionable, a defendant is entitled to peace of mind.

[114] …the discoverability provisions of the Limitations Act, 2002 are designed to strike a balance between, on the one hand, certainty and consistency so that after a period of time defendants can enjoy peace and repose, and on the other hand, fairness to both plaintiffs and defendants having regard to the specific factual or statutory setting of each case.

[64] In all the circumstances of this case I find as a fact that the plaintiffs discovered their claim, including that a court proceeding was an appropriate means to seek redress, within section 5(1)(a)(iv) of the Act, in November of 2010 by which time they had received an environmental site assessment (the Pinchin reports) identifying the ground water contamination and offering the opinion that the source of the contamination was likely the defendants’ property and their lawyer had put the defendants on notice of a possible legal action.

[65] Accordingly, the defendants’ motion for summary judgment dismissing the plaintiffs’ action as against them is granted. The plaintiffs’ cross-motion to amend their statement of claim to add additional parties and claims is dismissed.

[66] If the defendants wish to seek costs they may provide a written submission within 30 days of the release of these reasons and the plaintiffs may respond within 30 days of receiving the defendants’ submission.

Mr. Justice Charles T. Hackland

Released: January 23, 2019

COURT FILE NO.: 14-62032 A1

DATE: 20190123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MOJGAN SOLEIMANI and ARASH MADIPOUR

Plaintiff

AND

ROLLAND LEVESQUE and 1273460 ONTARIO LTD. c.o.b. as ROLLAND LEVESQUE & FILS

Defendants

AND

NORTHBRIDGE GENERAL INSURANCE CORPORATION

Third Party

AND

ANDREW MCKENNA and GOWLING LAFLEUR HENDERSON LLP

Intervenors

REASONS FOR JUDGMENT

Mr. Justice Charles T. Hackland

Released: January 23, 2019