Albert Bloom Limited v. London Transit Commission et al.

COURT FILE NO.: 1910-13

DATE: 2021-10-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Albert Bloom Limited

AND:

London Transit Commission, 1571177 Ontario Limited, 1111846 Ontario Limited and Ramsden Industries Limited, Eaton Industries (Canada) Company and the Corporation of The City of London

BEFORE: Justice A. K. Mitchell

COUNSEL: T. Brook and L. Fuerst, for Eaton Industries (Canada) Company G. Belch and G. Smith, for the City of London T. Curry and C. Humphrey, for Albert Bloom Limited

HEARD: July 6, 2021 via videoconference.

ENDORSEMENT

Overview

[1] Two motions are before the court:

(a) the defendant, Eaton Industries (Canada) Company (“Eaton”), moves for summary judgment seeking an order dismissing the claims of the plaintiff, Albert Bloom Limited (the “plaintiff”), on the basis they are statute-barred by virtue of the Limitations Act, 2002[^1] (the “Limitations Act”); and

(b) the defendant, The Corporation of The City of London (the “City”), also moves for summary judgment seeking the same relief as Eaton on the same grounds.

[2] The plaintiff alleges that Eaton’s predecessors caused environmental contamination to the property located at 450 Highbury Avenue North (the “LTC Property”). This contamination is alleged to have migrated and to continue to migrate onto neighbouring properties, including the plaintiff’s property located at 455 Highbury Avenue North (the “Plaintiff Property”).

[3] The plaintiff further alleges that the City, as a prior owner of the LTC Property, failed to take all reasonable steps to prevent and stop the contamination, thereby causing and continuing to cause damage to the Plaintiff Property.

[4] On these motions, Eaton and the City submit that the plaintiff’s claims were discoverable by 2012, or at the latest, by January 2015 when it had information that the LTC Property was a source of contamination. That is, the plaintiff knew or ought to have known about its claims against Eaton and the City more than two years prior to serving its notice of motion to amend its claim to add the moving parties as defendants.

[5] Conversely, the plaintiff submits that it did not have evidence of actual contamination of the LTC Property by Eaton until March 2018 and, therefore, its claim was not discoverable prior to that time. Furthermore, the plaintiff submits that it exercised reasonable due diligence and inquiry prior to March 2018 and, despite those efforts, its claim was not discovered or discoverable.

[6] Eaton and the City bear the onus of establishing there is no genuine issue requiring a trial. Once that onus is met, the plaintiff bears the burden of establishing its claim was commenced against Eaton and/or the City within the limitation period.

Background

[7] The material facts are not in dispute and are set forth below.

Parties

[8] The plaintiff is the current owner of the Plaintiff Property.

[9] The defendant, the London Transit Commission (the “LTC”), is the current owner of the LTC Property.

[10] The City owned the LTC Property from March 7, 1973 until October 4, 2010. During this time, the LTC had exclusive possession of the LTC Property for its municipal bus operation.

[11] On October 4, 2010, the City conveyed the LTC Property to the LTC.

[12] Eaton’s predecessor, Eaton Automotive Products Ltd. (“EAPL”), is a prior owner of the LTC Property. EAPL carried on automotive manufacturing operations at the LTC Property from 1949 to 1973.

[13] Ramsden Industries Limited (“Ramsden”) is the owner of property located at 128 and 130 Oakland Avenue in London, Ontario (the “Ramsden Properties”).

The Properties

[14] The Plaintiff Property, the LTC Property and the Ramsden Properties are neighbouring properties in a semi-industrial/semi-residential area located near the intersection of Highbury Avenue North and Brydges Street, in London, Ontario.

[15] The LTC Property is located to the east of the Plaintiff Property across Highbury Avenue North. The Ramsden Properties are located to the southwest and on the same side of Highbury Avenue North as the Plaintiff Property.

[16] The groundwater flow across this area is in a generally westerly direction. That is, the groundwater flows from the LTC Property located on the east side of Highbury Avenue toward the Plaintiff Property and the Ramsden Properties located on the west side of Highbury Avenue.

Evidence Relating to Discoverability

[17] In November 2010, the plaintiff received a Phase I Environmental Site Assessment (“ESA”) report concerning the Plaintiff Property prepared by its environmental consultants. This report:

(a) identified the past automotive parts manufacturing operations of Eaton as evidence of potential or actual contamination of the Plaintiff Property, stating “there is evidence of potential or actual contamination associated with the following activities related to this site… The surrounding property to the east of the site (450 Highbury Avenue North) [i.e., the LTC Property] was [EAPL] (auto parts products mfrs.) from circa 1959 to at least 1970…”;

(b) identified a 2,000 gallon “royalene” tank on the LTC Property. Royalene is a trade name for a product that contained TCE and potentially other chlorinated solvents; and

(c) characterized Eaton’s historical automotive parts operation on the LTC Property as a “significant environmental issue” based on a review of historical records.

[18] In January 2011, the plaintiff received a Phase II ESA report for the Plaintiff Property prepared by its environmental consultants. The January 2011 Phase II ESA report confirmed the presence of TCE contamination on the Plaintiff Property in concentrations exceeding applicable standards and reiterated the “significant findings” of the November 2010 Phase I ESA report, including the finding that “[t]he surrounding property to the east of the site (450 Highbury Avenue North) was [EAPL] (auto parts products mfrs.) from circa 1959 to at least 1970…”.

[19] In March 2011, the plaintiff received a groundwater delineation (“GWD”) report concluding there was TCE contamination on the Plaintiff Property. The report identified exceedances of TCE in certain of the wells on the Plaintiff Property and noted that “the greatest known historical use of TCE has been as a degreaser for metal parts”. Later that month, the plaintiff notified Ramsden about the alleged contamination and provided Ramsden with copies of the January 2011 Phase II ESA report and the March 2011 GWD report.

[20] In September 2011, the plaintiff’s environmental consultant emailed plaintiff’s counsel regarding the alleged TCE contamination and stated that the historical manufacturing operations of Eaton made the LTC Property a “textbook TCE candidate site”. Specifically, the plaintiff’s environmental consultant stated “…the [LTC] site looks to be a TCE source that that it is flowing westwards through our client’s site and Ramsden’s. 450 Highbury was originally an auto parts manufacturer in the 1950’s and 1960’s (“textbook” TCE candidate site) before becoming the LTC’s garage”.

[21] Ramsden commissioned its own investigation of the Ramsden Properties. In August 2011, the plaintiff received a Phase II ESA report from Ramsden. The Ramsden Phase II ESA report concluded that the Ramsden Properties were also contaminated with TCE in concentrations above the applicable standards, that groundwater flow across the sites was in a westerly direction, and that the LTC Property was a potential source of the contamination.

[22] After receiving Ramsden’s 2011 Phase II ESA report, the plaintiff conducted further investigations. In November 2011, the plaintiff’s environmental consultant issued a letter in which it had reviewed the data and agreed with the finding in Ramsden’s 2011 Phase II ESA report that the LTC Property was a potential source of the alleged contamination.

[23] On February 3, 2012, the plaintiff’s lawyer advised the LTC of its claim that the LTC Property was the cause of environmental contamination on the Plaintiff Property and provided the LTC with the five environmental reports in its possession supporting its claim.

[24] The plaintiff’s lawyer expressly advised LTC’s lawyer that the environmental consultants had concluded the LTC Property was the source of the alleged contamination on the Plaintiff Property stating:

…The conclusion of the consultants is that contamination has migrated from a property to the east of 455 Highbury Ave., N., namely 450 Highbury Ave. N. owned by the London Transit Commission.

[25] Prior to serving its notice of action and statement of claim in this action, the plaintiff commissioned two more environmental studies of the Plaintiff Property regarding the alleged contamination and provided them to the LTC. In April 2013, the plaintiff received a supplemental Phase II ESA report, which once again identified Eaton’s historical automotive parts manufacturing activities on the LTC Property as a potential source of contamination, adding “[t]he automotive manufacturing industry has historically used TCE as a degreasing agent”.

[26] In December 2013, the plaintiff received a further supplemental Phase II ESA report, which confirmed the prior findings that the Plaintiff Property was contaminated and indicated that TCE in the northern parts of the Plaintiff Property likely originated from the LTC Property.

[27] In October 2014, the Ministry intervened and directed the LTC to permit the plaintiff’s consultants access to the LTC Property for the purpose of installing monitoring wells to further investigate the LTC Property for contamination.

[28] In December 2014, subsurface sampling was conducted on the LTC Property by the plaintiff’s consultants in accordance with the Ministry’s direction to the LTC. The results of the sampling, which were reported to the plaintiff in January 2015, corroborated the prior results obtained by the plaintiff and Ramsden, and indicated that TCE was present on the LTC Property in concentrations above the applicable standards.

[29] In December 2014, the LTC’s environmental consultant produced a Phase I ESA report for the LTC Property which, like the earlier reports:

(a) identified the historical operations on the LTC Property as an area of potential environmental concern;

(b) stated that “[b]ased on the review of historical documents, the Site was first developed for industrial purposes in 1950 by Eaton Automotive Products Ltd. for the manufacturing of automotive part products; and

(c) characterized the existence of a historical “royalene” underground storage tank on the LTC Property as an area of potential environmental concern. “Royalene” was a trade name for a product that contained TCE and potentially other chlorinated solvents. The report also attached a fire insurance plan dated June 1958 identifying the “royalene” tank on the northeast portion of the LTC Property and the name “Eaton Automotive Products Ltd.”

[30] The December 2014 LTC Phase I ESA report was provided to the plaintiff in or about March 2015.

[31] On March 9, 2015, a Ministry official sent plaintiff’s counsel a map of the Plaintiff Property, the LTC Property and surrounding area. The map consolidated information already in the plaintiff’s possession, and identified certain features relating to the time period during which Eaton carried on manufacturing operations at the LTC Property, including a “Pond on 1962 Highbury Avenue Construction Drawing”, a “Pond on 1955 Air Photo”, and a “Borrow Pit/Storm Drain reservoir from Eaton Automotive (1959 Highbury Ave Drawing)”. Although the map did not explain the environmental significance of the pond or borrow pit on the map of the LTC Property, the name “Eaton Automotive” was expressly identified on various historical drawings.

[32] Also in March 2015, the plaintiff was advised by Ministry officials that the results of the sampling undertaken by the LTC’s consultant on the LTC Property corroborated the prior results of the sampling undertaken by the plaintiff’s consultant.

[33] Since March 2015, the plaintiff has conducted no further inquiries or investigations in relation to the historical manufacturing operations of Eaton on the LTC Property, including in connection with the use or disposal of degreasing or other agents containing TCE or the royalene tank.

The Litigation

[34] On November 30, 2012, the plaintiff commenced this claim against the LTC, Ramsden and the owners of two other neighbouring properties by issuance of a notice of action. The plaintiff alleged, among other things, that the LTC Property was a source of the contamination of the Plaintiff Property.

[35] In December 2012, the plaintiff issued a statement of claim in connection with its notice of action, claiming $500,000 in damages for nuisance, negligence, strict liability, trespass and breach of section 99(1) of the Environmental Protection Act[^2] (the “EPA”) relating to the alleged contamination. In its pleading, the plaintiff admitted that it had known about the alleged contamination on the Plaintiff Property since March 2011:

(a) as a result of the [November 2010] Phase I ESA, it was discovered that there was evidence of potential or actual contamination…;

(b) As a result of the [January 2011] Phase II ESA, it was discovered among other things, that there was a contamination of the groundwater, the extent of which required additional testing; and

(c) the [March 2011] GWD report confirmed that there were unacceptable levels of VOC and PHC in the groundwater tested across the Plaintiff Property.

[36] On April 30, 2013 the plaintiff’s lawyer provided a copy of the statement of claim and notice of action to both the LTC’s lawyer and Ramsden’s lawyer. In the covering email, the plaintiff’s lawyer wrote: “[l]ate last year I received instructions from my client to commence an action to avoid any limitation issues.”

[37] On May 22, 2013, the LTC was formally served with the claim. In the statement of claim, the plaintiff alleges that the LTC Property was a source of environmental contamination on the Plaintiff Property.

[38] In January 2014, the LTC served its statement of defence, counterclaim and cross-claim. At paragraph 8 of its pleading, the LTC alleges:

In the alternative, LTC pleads that if the [LTC Property] in any way contributed to the alleged contamination of the [Plaintiff Property], which is not admitted but specifically denied, then it was caused by the prior owner of the [LTC Property], the details of which LTC had no involvement in and has no knowledge of.

[39] On March 16, 2016, the LTC commenced the third-party claim against Eaton alleging that Eaton’s predecessors, EAPL, contaminated the LTC Property between 1949 and 1973 through their automotive parts manufacturing operations.

[40] On March 7, 2018, the plaintiff served notice of motion seeking to add Eaton and the City as defendants in the main action. Eaton and the City consented to the order to be added without prejudice to their respective rights to pursue these motions for summary judgment dismissing the plaintiff’s claims as being statute-barred.

[41] In October 2019, Eaton’s motion for summary judgment dismissing the LTC’s third-party claim was argued. On March 6, 2020, the court’s decision on the motion was released granting summary judgment and dismissing the third-party claim of the LTC on the basis it was statute-barred.[^3] This decision was affirmed on appeal.[^4]

The Amended Amended Claim

[42] In its amended amended claim, the plaintiff pleads, in part:

3B. Eaton (or a predecessor of Eaton) was the registered owner of the 450 Highbury Property from 1949 to 1973 and carried on business as a manufacturer. The Plaintiff first learned that Eaton contributed to the contamination that is migrating to the Property when LTC commenced a Third-Party Claim against Eaton on or about March 16, 2016.

3C. The Defendant, the Corporation of the City of London (“City of London”), is a municipality in Ontario. The City of London was the registered owner of the 450 Highbury Property from 1973 to about March 2010. LTC occupied and operated on the Highbury Property during this time.

15. By causing or permitting the discharge of the PHC and VOC contamination and failing to take all reasonable steps to prevent and stop the contamination, the Defendants, have caused and continue to cause damage to the Property.

16. The Defendants brought onto their Properties petroleum products and VOCs which are inherently dangerous and a non-natural use of the Properties. The petroleum products and VOCs escaped and continue to escape from the Defendants’ Properties and migrated and continue to migrate to the Property…

17A. The migration of contaminants from the Defendants’ properties continues to this day. The Plaintiff cannot cleanup the Property unless and until the migration is stopped. Otherwise, the Property will be re-contaminated. Each day the migration continues is a new cause of action and continues to cause damage to the Property.

18. The Plaintiff pleads and relies upon the Environmental Protection Act, R.S.O. 1990 c.E19, section 99, as amended. The escape of the PHC and VOC contaminants caused and continues to cause an adverse effect by damaging the property and interfering with the normal conduct of business on the Property and constitutes a spill and discharge within the meaning of the Environmental Protection Act, for which the Defendants are responsible and for which the Plaintiff is entitled to compensation for all losses and damages arising from the contamination.

Issues

[43] The primary issue on these motions is whether there are genuine issues requiring a trial with respect to whether the plaintiff’s claims against Eaton and the City are statute-barred by virtue of the Limitations Act.

[44] In addition, a collateral issue has been raised with respect to whether the additional claims pleaded by the plaintiff pursuant to s. 99 of the EPA, and in nuisance and negligence, are “continuing” claims thereby triggering a separate cause of action with a corresponding separate limitation period.

The Law

Test for Summary Judgment

[45] Pursuant to r. 20.01(3) of the Rules of Civil Procedure, a defendant to an action may move for summary judgment dismissing all or part of the claim against it. If the court is satisfied there is no genuine issue requiring a trial, the court must grant summary judgment.

[46] The decision of the Supreme Court of Canada Hyrniak v. Mauldin[^5] provides the governing law. Recognizing that affordable and timely access to the civil justice system is paramount, the Supreme Court of Canada has interpreted r. 20.03 to require motions judges to utilize their enhanced powers under r. 20 to weigh evidence, evaluate credibility and draw reasonable inferences where appropriate, in order to expand the cases capable of being disposed of summarily without the need for costly and protracted litigation.

[47] Where the motion relates to the basic limitation period, the court must consider whether the record enables it to make findings of fact, with the certainty required by Hyrniak v. Mauldin, with respect to the following matters:

(a) the date that the plaintiff is presumed to have known the matters listed in ss. 5(1)(a)(i)-(iv) of the Limitations Act – namely, the day on which the act or omission on which the claim is based occurred;

(b) the date of actual knowledge of the plaintiff under s. 5(1)(a), in the event the evidence proves the contrary of the presumptive date;

(c) the s. 5(1)(b) objective knowledge date, which is determined based on an analysis of the reasonable person with similar abilities and circumstances; and

(d) which of the actual knowledge and objective knowledge dates is earlier, as that will be the date on which the plaintiff discovered the claim for the purpose of applying the basic limitation period of two years.[^6]

[48] On these motions, it is presumed that the parties have placed before the court all relevant and necessary evidence. That is, that the plaintiff has put its “best foot “forward. The plaintiff must lead trump or risk losing. It is assumed for purposes of this motion that no better evidence exists upon which to decide the issues.[^7]

Limitations Act

[49] Limitation periods exist for three purposes: (1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who may be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion.[^8]

[50] Section 4 of the Limitations Act, provides that a claim is statute-barred if an action is not commenced within two years following the date on which it is discovered. The central issue on this motion is the plaintiff’s discoverability of its claims against Eaton and the City.

[51] The test for discoverability is codified in s. 5 of the Limitations Act, which reads:

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; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[52] Section 5(2) of the Limitations Act, creates a presumption that a cause of action is discovered on the day that the act or omission giving rise to it takes place. In the absence of proof of a different discovery date (with the onus of proof being on the plaintiff) the discovery date defaults to the date of the act or omission.

[53] Section 5(1) of the Limitations Act postpones the running of the limitation period until the material facts underlying the cause of action are known, or were reasonably discoverable.[^9] It is a question of fact as to what a reasonable person with the abilities and in the circumstances of the claimant ought to have known of the matters identified in s. 5(1)(a).[^10]

[54] Whether a claim has been discovered is not a question of whether a plaintiff has acquired sufficient evidence to ensure that the case will be successful at trial. That is, a plaintiff does not require evidence sufficient to prove its case at trial, only that it has sufficient evidence to establish that a cause of action exists. As the Court of Appeal held in Lawless v. Anderson[^11], such an approach:

…confuses the issue of when a claim is discovered with the process of assembling the necessary evidentiary support to make the claim “winnable”. To discover a claim, the plaintiff need only have in her possession sufficient facts upon which she could allege negligence. Additional information will support the claim and help to assess the risk of proceeding but is not needed to discover the claim.[^12]

[55] The claimant must act with due diligence in determining whether it has a claim.[^13] Suspicion of certain facts, or knowledge of a potential claim may trigger a due diligence obligation. Once the due diligence obligation is engaged, the issue becomes whether a reasonable person conducting due diligence, with the abilities and in the circumstances of the claimant ought to have discovered the claim.[^14]

[56] In Crombie, the Court of Appeal found that the suspicion of a potential contamination of the appellant’s property based on a single Phase I ESA report and a draft Phase II ESA report was sufficient to give rise to a duty of inquiry for the claimant.[^15]

[57] Due diligence requires a claimant to actually investigate its potential claim. This obligation has been described as: “to systematically gather information, explore, probe, research, inspect, interview, inquire, study, appraise, and analyse”.[^16]

[58] As the Court of Appeal held in Longo v. MacLaren Art Centre[^17] a “limitation period will not be tolled while the plaintiff sits idle and takes no steps to investigate the matters required for discovery of the claim described in section 5(1)(a)”. However, the nature and extent of the required action will depend on all of the circumstances of the case.[^18]

Analysis

Discoverability of Claim

[59] The issues on these motions are discrete and involve a determination of whether the plaintiff is statute-barred from pursuing its claims against Eaton and the City. The main issue is one of discoverability of the plaintiff’s claims against these defendants. Material facts are not in dispute and credibility is not an issue. There is no conflicting expert evidence.

[60] I find there is no genuine issue requiring a trial and that a summary judgment motion is suitable for determining the issues of discoverability of the plaintiff’s claims against Eaton and the City and whether any of those claims are continuing.

(i) Actual Knowledge – s. 5(1)(a)

[61] Eaton and the City submit that the plaintiff had actual knowledge of the matters in section 5(1)(a) of the Limitations Act by at least November 30, 2012 being the date the notice of action was issued. Alternatively, they submit that the plaintiff had actual knowledge of these matters by, at the latest, January 2015 when testing confirmed the presence of TCE contaminants in the soil of the LTC Property.

[62] In support of their position, Eaton and the City submit that by commencing this action against the LTC as the current owner of the LTC Property, the plaintiff knew that:

(a) it had a claim relating to the alleged contamination;

(b) the LTC Property, and the activities that had taken place there, were a potential source of the alleged contamination;

(c) any injury, loss or damage stemming from the alleged contamination had been caused or contributed to by an act or an omission occurring on the LTC Property; and

(d) a legal proceeding was the appropriate means to seek a remedy for its claim for loss.

[63] In opposition to these motions, the plaintiff relies on the evidence of its former counsel, John Buhlman, to the effect that he was not (despite receipt of a copy of the proposed Third Party Claim of the LTC against Eaton on March 11, 2016), aware of “any evidence which pointed to Eaton as a source of the contamination” until March 1, 2018 when he was advised by LTC’s counsel there was a pond on the LTC Property that may have been used by Eaton to discharge contaminants.

[64] Mr. Buhlman was cross-examined. During cross-examination, Mr. Buhlman confirmed that between 2011 and 2015 he had personally reviewed multiple reports indicating that a “royalene” tank had existed on the LTC Property in 1958 and that the historical operations of Eaton were a potential source of the alleged contamination. He also confirmed that the existence of the pond on the LTC Property had been brought to his attention by as early as March 2015.

[65] I note that the plaintiff elected not to file any direct evidence with respect to when it discovered its claim against Eaton and the City. There is an absence of evidence from any officer, director or representative of the plaintiff. The evidence of the plaintiff’s former counsel falls short. As already noted in these reasons, the plaintiff has an obligation to put its “best foot forward” which requires direct evidence on the key issue on these motions being the issue of discoverability.

[66] The law is clear. A claimant need not know with certainty that a defendant is responsible for the alleged act or omission that caused or contributed to the claimed loss in order for the limitation period to start running. In Kowal v. Shyiak[^19] the court stated:

Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement. It is enough to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified.

[67] Moreover, a claimant need not know which of several persons is responsible for the alleged loss in order to discover its claim against them. As the Court of Appeal held in Rumsam v. Pakes[^20]:

The law does not require that a prospective plaintiff know the exact extent or type of harm suffered, or the precise cause of the injury… Nor is it necessary to determine which of several persons is responsible. It is enough that there is a possible claim against them… The due diligence requirement is not satisfied by waiting for someone else to advise who the correct defendant is.

[68] In March 2018, Mr. Buhlman received only additional information that Eaton may have discharged contaminants into a pond on the LTC Property. This evidence is no more compelling than the evidence the plaintiff already had in hand as to Eaton’s potential liability and that was contained in the various ESA and GWD reports.

[69] In order to claim against Eaton, the plaintiff only needed information sufficient to identify Eaton as a potential tortfeasor. By November 2012, the plaintiff had received and reviewed at least three reports identifying the historical operations of Eaton as a potential cause or contributor to the alleged contamination. The plaintiff’s own consultant had described these operations as a “textbook” TCE candidate site. The identification of Eaton as a potential tortfeasor was then corroborated by later sources of information.

[70] The limitations clock does not begin to run when a potential tortfeasor is identified as the only source of the contaminant. Rather, the clock begins to run when such person is identified as a possible contributing source of the contaminant.

[71] The fact that the LTC may have also caused or contributed to the alleged loss does not postpone the discovery of the plaintiff’s claim against Eaton and the City as other possible tortfeasors. The law is clear that a claimant need not know which of several persons is responsible for the alleged damage. It is enough that there is a prima facie case against them.[^21]

[72] It defies common sense that the plaintiff did not know it had a claim for environmental contamination against the predecessors in title to LTC when the plaintiff commenced an action specifically against the LTC as the current owner of the LTC Property. In its amended amended statement of claim, the plaintiff claims against Eaton and the City for losses arising from environmental contamination of the Plaintiff Property based on the exact same causes of action it first asserted against the LTC in November 2012.

[73] I find there was substantial evidence available to the plaintiff long before March 7, 2016, indicating that historical automotive parts manufacturing operations were associated with TCE use and that EAPL, as Eaton’s predecessor, carried on historical automotive parts manufacturing operations on the LTC Property.

[74] I further find that by November 30, 2012, the plaintiff knew it had a claim against both Eaton and the City (as subsequent owner of the LTC Property). This conclusion is supported by the following evidence:

(a) by that date, the plaintiff had received and reviewed at least six environmental reports regarding the alleged contamination, four of which identified the operations of EAPL at the LTC Property as a significant environmental issue and a potential off-site source of the contamination;

(b) in the 2010 Phase I ESA report there is reference to a fire insurance plan from 1958 which identified a rolling storage tank on the LTC Property and the name “Eaton Automotive Products Limited”;

(c) the plaintiff’s own environmental consultant advised the plaintiff in September 2011 that the LTC Property had been occupied by an auto parts manufacturer in the 1950s and 1960s and that, in his view, it was therefore a “textbook TCE candidate site”;

(d) according to public records available to the plaintiff (and plaintiff’s counsel), no automotive parts manufacturers are known to have operated on the LTC Property at any point in its history, other than EAPL; and

(e) by this date, the plaintiff knew that remediation or contamination management would be required to deal with contamination of the Plaintiff Property and that costs would have to be incurred with respect to that work. As early as September 2011, the plaintiff’s consultants had identified possible solutions and provided cost estimates to the plaintiff for the remediation and risk assessment of its property.

[75] I further find that, at the latest, the plaintiff had knowledge of a potential claim against both Eaton and the City by January 2015. Subsequent to November 2012, the plaintiff’s claim against Eaton (and any successor in title to Eaton, including the City) was confirmed and supported by various consultants and other parties as follows:

(a) in April 2013 the supplemental Phase II ESA report identified the automotive parts manufacturing activities on the LTC Property as a potential source of the alleged contamination noting that the automotive manufacturing industry had historically used TCE as a degreasing agent;

(b) in January 2014, the LTC served the plaintiff with its statement of defence, counterclaim and cross-claim, in which it alleged that any contamination of the Plaintiff Property had been caused by the LTC’s predecessors in title;

(c) in November 2014, a Ministry official emailed plaintiff’s counsel and observed that the plaintiff’s sampling plan for the LTC Property appeared to be designed to test for contamination around the site of Eaton’s historical operations; and

(d) in January 2015, the plaintiff received the results of subsurface sampling conducted on the LTC Property which corroborated the prior results obtained by the plaintiff and Ramsden and confirmed that TCE was present on the LTC Property and concentrations exceeded the applicable standards.

[76] Therefore, the plaintiff had actual knowledge of the matters in section 5(1)(a) with respect to its claims against Eaton and the City by November 30, 2012, and, at the latest, by January 2015.

(ii) Implied Knowledge – s. 5(1)(b)

[77] For the sake of completeness and although unnecessary, I will also consider whether the plaintiff ought to have had knowledge of the s. 5(1)(a) matters with respect to its claim against Eaton and the City for contaminating the Plaintiff Property by March 7, 2016 (being two years prior to the date on which the plaintiff served notice of its motion to amend its claim to add Eaton and the City as defendants) pursuant to s. 5(1)(b) of the Limitations Act.

[78] Whether a reasonable person ought to have discovered the claim against Eaton and the City by March 7, 2016 is a question of fact arising from the information available to or discoverable by the plaintiff.

[79] By March 7, 2016:

(a) the plaintiff was in possession of numerous environmental reports identifying the LTC Property as a potential source of contamination. EAPL was expressly identified by name in the November 25, 2010 Phase I ESA report, the supplemental Phase II ESA report dated April 18, 2013 and the Phase II ESA report dated January 20, 2011. It was known to the plaintiff that EAPL had carried on operations associated with TCE, a known contaminant; and

(b) the plaintiff was in possession of numerous reports containing information sufficient to identify the LTC Property as a likely source (among other potential sources) of contamination of the Plaintiff Property.

[80] At all times, the plaintiff was being advised by experienced litigation counsel and environmental consultants. A reasonable person would have exercised due diligence by undertaking a title search of the LTC Property to confirm the information contained in multiple environmental reports, namely, that an automotive parts manufacturer owned and occupied the LTC Property from 1949 to 1973.

[81] Furthermore, a title search would have indicated that subsequent to EAPL’s ownership of the LTC Property, during which time automotive manufacturing operations were ongoing, the City had acquired the LTC Property and was, therefore, a potential tortfeasor as a subsequent owner of the property. In fact, the evidence in the possession of the plaintiff prior to March 7, 2016 points the finger squarely at the City, as the subsequent owner to EAPL of contaminated property, in identical manner to the finger pointing at the LTC as subsequent (and current) owner of the contaminated property.

[82] A reasonable person in possession of the reports commissioned by and/or available to the plaintiff would have known that the manufacturing activities of EAPL conducted on the LTC Property from 1949 to 1973 were a possible cause of the alleged contamination of the Plaintiff’s Property.

[83] As earlier noted, discoverability relates only to discovery of facts sufficient to support a claim. Discoverability does not relate to discovery of facts sufficient to prove a claim. A reasonable person standing in the shoes of the plaintiff ought to have known of the matters in s. 5(1)(a) before March 7, 2016 and, therefore, would have sought to add Eaton and the City as defendants in this action long before March 2018.

Continuing Claims - [s. 99](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html) of the [EPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html); Nuisance; and Negligence

[84] A continuing cause of action is one in which the alleged acts or omissions causing damage continue to occur. That is, each day the act or omission reoccurs a new cause of action may arise, thereby triggering the start of a new limitation period and allowing an impacted party to assert a new claim.[^22]

[85] The plaintiff submits they have continuing claims for damages against Eaton and the City based in nuisance and negligence and pursuant to section 99(1) of the EPA. The plaintiff’s claims against Eaton and the City for damages in nuisance, negligence and pursuant to section 99 of the EPA will be addressed separately below.

(i) Section 99(1) EPA

[86] In its amended amended statement of claim, the plaintiff pleads and relies on s. 99 of the EPA. Pursuant to s. 99 EPA:

(1) In this section:

“loss or damage” includes personal injury, loss of life, loss of enjoyment of property and pecuniary loss, including loss of income.

(2) Her Majesty in right of Ontario or in right of Canada or any other person has the right to compensation,

(a) for loss or damage incurred as a direct result of,

(i) the spill of a pollutant that causes or is likely to cause an adverse effect,

(ii) the exercise of any authority under subsection 101 or the carrying out of or attempting to carry out a duty imposed or an order or direction made under this Part, or

(iii) neglect or default in carrying out a duty imposed or an order or direction made under this Part;

(b) for all reasonable cost and expense incurred in respect of carrying out or attempting to carry out an order or direction under this Part,

from the owner of the pollutant and the person having control of the pollutant.

[87] The plaintiff also makes mention of s. 93 of the EPA in its written submissions although this provision is not specifically pleaded in the claim. Section 93 of the EPA creates a statutory duty on the owner of the pollutant as well as the person having control of a pollutant that is spilled and that causes, or is likely to cause, an adverse affect. In those circumstances the owner and the person having control of a pollutant must forthwith do everything practicable to prevent, eliminate and ameliorate the adverse effect and to restore the natural environment.

[88] The Ontario Court of Appeal in Midwest Properties Ltd. v. Thordarson[^23] described the purpose of s. 99 of the EPA as follows:

[T]he purpose of enacting s. 99(2) was to provide a flexible statutory cause of action that superimposed liability over the common law. In so doing, the Legislature recognized the inherent limitations of the common law torts of nuisance and negligence. This new cause of action eliminated in a stroke such issues as intent, fault, duty of care, and foreseeability, and granted property owners a new and powerful tool to seek compensation.

[89] Both the “owner of the pollutant” and the “person having control of a pollutant” are defined in s. 91(1) of the EPA as the owner or person having control of the pollutant immediately before the first discharge of the pollutant.

[90] The plaintiff submits that it did not know nor should it have known when either of Eaton or the City constituted an “owner of the pollutant” or was a “person having control of the pollutant”, until it obtained evidence of Eaton’s historical use and disposal of TCE in March 2018.

[91] The plaintiff relies upon the decision in Huang v. Fraser Hillary’s Limited et al.[^24] In Huang the plaintiff successfully sued the corporate defendant in nuisance and pursuant to s. 99 of the EPA. The defendant was the owner and operator of a dry cleaning business. Prior to 1974, solvents used in the business spilled onto the ground. New equipment purchased in 1974 eliminated the potential for spills and reduced the amount of contaminants used in the business.

[92] Huang is readily distinguishable from the facts of this case. In Huang the court was not concerned with whether the plaintiff had commenced their claim pursuant to s. 99 of the EPA within two years of discovering the alleged contamination. Rather, the Court dealt with the retroactive effect of s. 99: that is, whether a spill occurring before the enactment of the EPA was actionable.

[93] All environmental claims, including a claim brought pursuant to s. 99 of the EPA, are subject to the Limitations Act. Section 17 of the Limitations Act expressly provides that with respect to an environmental claim, the standard two-year limitation period imposed by the Limitations Act begins to run from the date on which it is discovered.

[94] Huang does not suggest that the combination of s. 93 and s. 99 creates a continuing statutory cause of action to which no limitation period applies.

[95] As earlier noted, the plaintiff had actual knowledge or, at a minimum, implied knowledge of any “spill” arising from Eaton’s disposal and storage of TCE on the LTC Property prior to March 7, 2016. Accordingly, the plaintiff’s claim against Eaton and the City as persons having ownership of the pollutant or control of the pollutant pursuant to s. 99 of the EPA is statute-barred.

[96] Last, I will consider whether the continuing contamination of the Plaintiff Property arising from the flow of contaminated ground water from the LTC Property constitutes a “spill” or discharge with the meaning of the EPA.

[97] Liability under s. 99 of the EPA is dependent upon there having been a “spill” of the pollutant. Section 91(1) of the EPA defines “spill” as “a discharge…into the natural environment…from or out of a structure, vehicle or other container…that is abnormal in quality or quantity in light of all the circumstances.” By virtue of this definition, there can be no “spill” when contaminants from an earlier discharge simply move from one part of the natural environment to another.[^25]

[98] Any “spill” caused by Eaton, must have occurred prior to 1974 while it carried on its auto parts manufacturing business. I find that the continuing contamination of the Plaintiff Property arising from the flow of contaminated groundwater from the LTC Property does not constitute a “spill” or a “discharge” within the meaning of the EPA because the TCE is not moving from a structure or container (for example, the “royalene” tank or other storage container/area) into the natural environment. Thus, s. 99 of the EPA does not create a new cause of action against former owners of property each day the flow of contamination in the natural environment continues unabated. To find otherwise, would lead to perpetual liability under s. 99 of the EPA which seems to me to be contrary to public policy.

(ii) Nuisance

[99] A “nuisance” consists of an interference with a claimant’s use or enjoyment of land that is both substantial and unreasonable.[^26]

[100] In its amended amended pleading, the plaintiff alleges that both Eaton and the City continue to cause damage to the Plaintiff Property by failing to stop the nuisance consisting of the migration of contaminants from the LTC Property to the Plaintiff Property and by allowing the migration to continue. The issue is whether the failure to stop the ongoing migration of contaminants by these defendants, as prior owners of the LTC Property, constitutes a continuing nuisance.

[101] In Starline Entertainment Centre Inc. v. Ciccareli[^27] Epstein J. (as she then was) described a continuing cause of action as follows:

82 A continuing tort does not include continuance of all the effects or repercussions of the defendant’s conduct. It has been explained as the “continuance of the act which caused the damage”: see Ihnat v. Jenkins, 1972 ONCA 675, [1972] 3 O.R. 629, 29 D.L.R. (3d) 137 (C.A.); Freeborn v. Leeming, [1926] 1 K.B. 160 (C.A.); and Carey v. Bermondsey (London Borough Council), (1903), 67 J.P. 447 (C.A.).

83 What then is a “continuing cause of action”? It was described in Hole v. Chard Union, [1894] 1 Ch. 293 (C.A.) at pp. 295-296, as:

…a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.

84 In that case, the defendants had polluted a stream by pouring in sewage and refuse. It was held that this was nuisance, and a continuing cause of action. At p. 296, A. L. Smith L.J. stated:

[The series of acts] were repeated in succession, and became a cause of action. They were an assertion of the same claim – namely, a claim to pour sewage into the stream -- and a continuance of the same alleged right.

[102] This articulation of the doctrine of continuing tort was recently affirmed by the Ontario Court of Appeal in Albert Bloom Limited v. London Transit Commission et al.[^28] where it was stated:

…For a claim to be “continuing”, the legal injury itself must continue, not merely the ill effect of the prior legal injury: RVB Managements Ltd. v. Rocky Mountain House (Town), 2015 ABCA 188, 19 Alta. L.R.(6th) 195, at para. 18.

[103] Further support for this proposition comes from the decision in Strathan Corporation v. Khan.[^29] In Strathan, the plaintiff sought to amend its claim to assert an environmental claim on the basis its contamination claim constituted a continuing tort and hence its cause of action continued to accrue on a “rolling” basis. The court rejected the characterization of the plaintiff’s claim as a continuing tort because the defendants had already vacated the subject property and all of the alleged wrongful acts had occurred while the defendant occupied the property. The court stated at para. 84:

…The defendants could not have engaged in further acts of environmental contamination after November 1, 2010, because all chrome-plating operations had ceased and the defendants had vacated the premises…

[104] The alleged wrongful conduct of these defendants pleaded in the amended amended statement of claim is that:

(a) Eaton and the City failed to ensure that petroleum products and VOCs used on their property were properly stored, resulting in the contamination of the property;

(b) Eaton and the City did not establish a due diligence program to ensure the containment of petroleum products and VOCs on the defendants’ properties;

(c) Eaton and the City, or any of their tenants, spilled or dumped petroleum products and VOCs and failed to conduct a proper cleanup;

(d) Eaton and the City failed to properly train their employees in the safe use, transfer or disposal of petroleum products and VOCs;

(e) Eaton and the City failed to properly monitor underground storage tanks used to store petroleum products and VOCs to detect leakage;

(f) Eaton and the City, or any of their tenants, failed to properly maintain the underground storage tanks used to store petroleum products and VOCs and the associated piping and pumps;

(g) Eaton and the City caused or permitted the discharge of the PHC and VOCs contamination and failed to take all reasonable steps to prevent and stop the contamination;

(h) Eaton and the City brought onto the LTC Property petroleum products and VOCs which are inherently dangerous and a non-natural use of the LTC Property; and

(i) Eaton and the City caused or permitted a spill and discharge of PHC and VOC contaminants within the meaning of s. 99 of the EPA.

[105] The plaintiff does not dispute that the auto parts manufacturing operations of Eaton ceased, at the latest, in 1973 when EAPL sold the LTC Property to the City. Aside from the continuing migration of contaminants through the flow of groundwater from the LTC Property to the Plaintiff Property, the plaintiff does not allege any intentional act on the part of Eaton or the City occurring in the two years preceding March 7, 2018 which resulted in injury to the plaintiff. Rather the plaintiff alleges that the continuing migration of contaminants from the lands formerly owned by these defendants constitutes the continuing nuisance.

[106] The plaintiff has referred me to a number of decisions to support its position. These cases are distinguishable. For example, in Valco Instruments Canada Corp. v. Imperial Oil Ltd.[^30] a property owner brought a claim in nuisance against the current owner of a neighbouring property. Valco is a similar fact situation to the plaintiff’s claim against the LTC in the present case. In Valco the defendant was still in control of the property that was allegedly causing a continuing nuisance to the plaintiff. Neither Eaton nor the City remains in control of the LTC Property.

[107] In Huang and Midwest, the defendants were both current owners of the contaminating property. Furthermore, there was no issue that the plaintiffs in these cases had commenced their actions in time.

[108] In Jackson v. Drury Construction Co. Ltd.[^31] the court found that blasting activities during reconstruction of a roadway rendered a contractor liable for polluting the plaintiffs’ well. Jackson did not involve an allegation of continuing nuisance. And there was no question the plaintiff had commenced its action against the defendant in time.

[109] In Beniuk v. Leamington (Municipality)[^32], the defendant conceded that the activity (heavy truck traffic on municipal roads) causing the interference was ongoing and that there was evidence of new damage. The Court of Appeal found there was a genuine issue requiring a trial only with respect to the plaintiff’s claim for damages sustained in the two years prior to the issuance of their claim and limited their potential recovery to damages sustained within that time frame. Any claim for damages occurring prior to the two years was statute- barred. In the present case, the tortious conduct of discharging or spilling contaminants is not ongoing; rather, ceased prior to 1973.

[110] The alleged acts or omissions by Eaton and the City are historical. In the case of Eaton, any tortious conduct ceased when the LTC Property was sold to the City. In the case of the City, any alleged act or omission ceased in 2010 when the LTC Property was sold to the LTC.

[111] Although I have found there has been no intentional act or omission by Eaton since 1973, for the sake of completeness, I will now consider whether the continuing migration of contaminants constitutes a continuing nuisance by Eaton and the City causing fresh injury to the plaintiff.

[112] As the Court of Appeal held in Smith v. Inco[^33], the mere migration of contamination without evidence of new substantial damage to the plaintiff’s lands will be insufficient to support the tort of nuisance. The damage must be “material, actual and readily ascertainable”.[^34] As noted by the court in Smith: “[t]o constitute physical harm or damage, a change in the chemical composition must be shown to have had some detrimental effect on the land itself or rights associated with the use of the land”.[^35]

[113] With respect to this issue, the plaintiff offers the evidence of Chris Johnston, Senior RSC Project Leader, Environmental Due Diligence and Remediation with Pinchin Ltd., who provided the following opinions with respect to the effect of the continuing migration of contaminants from the LTC Property to the Plaintiff Property. Mr. Johnston concluded:

[I]t is probable that elevated concentrations of trichloroethylene (“TCE”) and degradation products above applicable generic site condition standards for use under Part XV.1 of the Environmental Protection Act are currently migrating from the LTC Property to the [Plaintiff Property].

[114] Mr. Johnston further concluded:

I am also of the opinion that remediation of TCE in the groundwater under the [Plaintiff Property] will not be able to be accomplished to levels below the applicable generic site condition standards for use under Part XV.1 of the Environmental Protection Act unless the contaminant migration from the LTC property is stopped.

[115] Also with respect to this issue, Eaton’s expert, Ronald Donaldson, a senior hydrogeologist with BlueMetric Environmental Inc., was asked to review all of the environmental reports available to the parties and provide his opinion on the state of the groundwater quality at the Plaintiff Property and what the reports indicate about changes to the groundwater quality at the Plaintiff Property during the time periods January 2011 and January 2015 (the date of the most recent report); and January 2015 to present.

[116] Mr. Donaldson opined:

…there has been no meaningful change in groundwater quality at [the Plaintiff Property] between 20 January 2011 and January 2015.

No groundwater quality data for [the Plaintiff Property] was contained in the Reports for the time period after January 2015. As such, I am not able to comment as to whether or not groundwater quality has changed, and whether or not those changes have been meaningful.

[117] The only evidence before the court with respect to whether there has been a meaningful change in the groundwater quality on the Plaintiff Property was provided by Eaton’s expert. Mr. Donaldson concluded there has been no meaningful change in the level of contamination of the Plaintiff Property between January 2011 and January 2015. This evidence is not disputed by the plaintiff’s expert. Moreover, the plaintiff has not filed any evidence that the quality of the groundwater has decreased and the level of contamination has increased on the Plaintiff Property since 2015.

[118] I find that there has been no new injury caused by the alleged continuing migration of contaminants onto the Plaintiff’s Property which might lead to a tolling of the limitation period with respect to plaintiff’s claims against Eaton and the City in nuisance.

(iii) Negligence

[119] The plaintiff also asserts a claim against Eaton and the City in negligence arising from their failure to prevent and stop contamination of the Plaintiff Property. It is undisputed that neither Eaton nor the City have taken steps to remove the TCE from the LTC Property and prevent the TCE from continuing to escape onto the LTC Property.

[120] The plaintiff submits that Eaton is responsible for the original spill of TCE on the LTC Property prior to 1973 and, thus, had at that time and continues to have a duty to remedy the spill. The plaintiff further submits that until 2010 the City had an obligation, as the owner of the LTC Property, to remedy the ongoing contamination and prevent its escape and contamination of the Plaintiff Property. The plaintiff argues that the failure of Eaton and the City to prevent and stop the ongoing contamination of the Plaintiff Property constitutes a continuing tort and a breach of duty by these defendants which breach will continue until the omission or failure is remedied.

[121] The plaintiff’s argument begs the question that a prior owner of property owes a duty to a neighbouring property owner. Following argument on the motion, I directed the parties to file supplementary written submissions on this issue.

[122] The plaintiff, as neighbouring property owner on the one hand, and Eaton and the City as prior owners on the other hand, do not share a relationship which falls within a category already recognized as giving rise to a duty of care. The plaintiff has not provided jurisprudence to support its position that a prior owner of property owes a duty of care to the future owner of a neighbouring property.

[123] In addition, the plaintiff does not argue that the relationship between the parties satisfies the Anns test so as support a finding of a duty of care between these parties. In addition, the facts as pleaded cannot support a finding of a breach of any duty of care even if one is found to be owed.

[124] I find that the doctrine of continuing tort based in negligence cannot be invoked by a claimant in the environmental contamination context against prior owners or occupiers of neighbouring lands who have long since vacated those lands.

[125] Therefore, the plaintiff’s claims brought pursuant to s. 99 of the EPA, and in nuisance and negligence against the City and Eaton for failing to stop the migration of contaminants flowing in the groundwater from the LTC Property to the Plaintiff Property, do not constitute continuing causes of action triggering separate limitation periods.

Disposition

[126] I find the motion to amend the amended statement of claim to add Eaton and the City as defendants in this action was served greater than two years after the date on which the claims against these defendants were actually discovered or ought to have been discovered by the plaintiff. As such, the plaintiff’s claims against Eaton and the City, in their entirety, are statute-barred.

[127] In the result, both Eaton’s motion and the City’s motion for summary judgment are hereby granted and the plaintiff’s claims against these defendants are hereby dismissed.

Costs

[128] As the successful parties, Eaton and the City are presumptively entitled to their respective costs of the motions and the main action. Absent an agreement of the parties, costs submissions shall be submitted in accordance with the following timetable:

(a) Eaton and the City shall serve and file their respective costs submissions, not exceeding 10 pages in length each, exclusive of any bill of costs, time dockets and case law, within 15 days;

(b) the plaintiff’s responding submissions, not exceeding 10 pages in length, exclusive of any bill of costs, time dockets and case law, shall be served and filed within 15 days thereafter; and

(c) any reply submissions, not exceeding 3 pages in length, shall be submitted 5 days thereafter.

“Justice A.K. Mitchell”

Justice A. K. Mitchell

Date: October 29, 2021

[^1]: S.O. 2002, c. 24, Sched. B. [^2]: R.S.O. 1990, c. E-19. [^3]: See London Transit Commission v. Eaton Industries (Canada) Company, 2020 ONSC 1413. [^4]: Albert Bloom Limited v. London Transit Commission v. Eaton Industries (Canada) Company, 2021 ONCA 74. [^5]: 2014 SCC 7, 2014 CarswellOnt 640 (SCC). [^6]: The Toronto Dominion Bank v. Hylton, 2012 ONCA 614 at para. 5. [^7]: Chernet v. RBC General Insurance Co., 2017 CarswellOnt 5952 (C.A.) at para. 12. [^8]: Mancinelli v. Royal Bank of Canada, (“Mancinelli”) 2017 ONSC 7384 at para. 7. [^9]: Ibid., at para. 8. [^10]: Arcari v. Dawson, 2016 ONCA 715 at para. 9. [^11]: 2011 ONCA 102. [^12]: Ibid., at para. 36. [^13]: Mancinelli, supra, at para. 9. [^14]: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16 (“Crombie”), at para. 42. [^15]: Ibid. at para 42. [^16]: Mancinelli, supra, at paras. 49 and 50. [^17]: 2014 ONCA 526 at para. 42. [^18]: Ibid. [^19]: 2012 ONCA 512 at para. 18. [^20]: 2019 ONCA 748 (the “Rumsam”) at paras. 22 – 26. [^21]: Ibid., at paras. 22-26. [^22]: Roberts v. City of Portage La Prairie, 1971 SCC 128, [1971] SCR 481 at pages 491 – 492. [^23]: 2015 ONCA 819 (“Midwest”) at para. 73. [^24]: 2017 ONSC 1500 (“Huang”); affirmed 2018 ONCA 527. [^25]: Huang, at paras. 76 and 77. [^26]: Antim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at para. 18. [^27]: Starline Entertainment Centre Inc. v. Ciccareli, 1995 ONSC 7132, 25 O.R. (3d) 765 at paras 82 – 84. [^28]: Supra, at para. 50. [^29]: 2018 ONSC 6278 (“Strathan”); affirmed 2019 ONCA 418. [^30]: 2016 ONSC 3932 (“Valco”). [^31]: (1975), 1974 ONCA 474, 4 O.R. (2d) 735 (C.A.) (“Jackson”). [^32]: 2020 ONCA 238. [^33]: 2011 ONCA 628 (“Smith”) at paras. 45 and 55. [^34]: Ibid., at para. 49. [^35]: Ibid., at para. 55.