MTD v. 1361821 & Sandal ONSC 2995

COURT FILE NO.: CV-15-852

DATE: 2022-05-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MTD Products Limited

Plaintiff

– and –

1361821 Ontario Inc. and

Marko Sandal also known as Marko Sandalj

Defendants

Sherry A. Kettle - Counsel for the Applicant

Self Represented

HEARD: April 19, 20, 21, 22, 25, 26, 27, 28, 2022

REASONS FOR JUDGMENT RENDERED APRIL 29, 2022

The Honourable Justice James W. Sloan

[1] The following are the reasons for the Judgment I issued on April 29, 2022. For completeness, the April 29, 2022, Judgment as amended on May 17, 2022, is attached as Schedule 1 to this Judgment.

[2] This action deals with contaminated property in the City of Kitchener. Briefly the plaintiff owns property which borders property owned by 1361821 Ontario Inc. on three different sides essentially in the shape of a horseshoe. (Ex. 2, T 69, P 2701)

[3] The address of the 1361821 Ontario Inc. property is 70-74 Borden Ave. S., Kitchener.

[4] The Kitchener properties owned by MTD are:

a) 445 - 449 Charles St. E.,

b) 61 - 97 Kent Avenue,

c) 94 Borden Ave. S. and

d) 60 Ottawa St. S.

[5] The plaintiff claims that contaminants originating on the defendant’s land have migrated and are continuing to migrate onto the plaintiff’s lands. The plaintiff therefore seeks:

1. A declaration that the defendants are bound by law to indemnify the plaintiff for legal, investigatory, remedial and preventative measures that have and may occur in the future in consequence of the contamination.

2. An interlocutory and permanent mandatory order that the defendants undertake or fund any and all required remediation and

3. Damages.

[6] After the plaintiff opened its case by reading into the record the first 10 pages, comprising 95 paragraphs of its Request to Admit, the defendants brought an oral motion seeking to have the trial adjourned.

[7] The Request to Admit is dated January 13, 2020 and was not responded to by the defendants. Therefore, pursuant to Rule 51(03) the defendants are deemed to admit the truth of the facts set out in those paragraphs and in addition deemed to admit the authenticity of 70 documents referred to in pages 11 through 17 of the Request to Admit. The Request to Admit was marked Ex. 1.

[8] The defendants with the assistance of counsel brought the identical motion before Justice Gordon on April 6, 2022. Justice Gordon, in his 33^rd paragraph endorsement, dismissed the motion. I agreed with his conclusions and orally dismissed the defendants’ motion requesting an adjournment.

[9] I found that Mr. Sandal was well aware of the case he had to meet and simply took no steps to address any of the issues, except, as set out in the Request to Admit, to promise things that he never followed through on.

William Poje

[10] Poje is a mechanical engineer and was employed by MTD from 1969 to 2014. Commencing in approximately 1976, he became the facilities engineering manager and was responsible for maintenance, compliance, processes and construction, all of which included environmental considerations. He reported to Ed Henderson.

[11] He was taken through the different parcels of land owned by MTD. He referred to the parcels by the names of the streets they were on, being Charles, Kent, Borden and Ottawa. (Ex 2, T 69, P 2701)

[12] He had involvement with all four areas and was familiar with the commercial aspects of the properties prior to their being obtained by MTD.

[13] He described the current contamination as being from chlorinated solvents. He told the court about some underground (UST) and aboveground storage (AST) tanks that had previously contained fuel. It was his evidence, that all of the hydrocarbon contaminants such as benzene from these tanks had been dealt with and remediated.

[14] It was his evidence that the industries which owned the MTD land prior to selling it to MTD, did not use chlorinated solvents. In addition, no chlorinated solvents were ever purchased by, used by, stored on or disposed of on any of the subject land owned by MTD.

[15] During his tenure he was not aware of any chlorinated solvents impacting the MTD lands, except for those migrating from the defendant’s property.

[16] He indicated that the flow of contaminants was in a south southeasterly direction from Charles Avenue towards Borden, Kent and Ottawa streets. Since the source of the contamination was coming from the defendant property, MTD could not remediate its properties.

[17] He described having numerous discussions with Sandal over the years and showed Sandal that the contamination values on MTD land were increasing.

[18] Although Sandal appeared to want to resolve the situation, nothing ever transpired. Sandal initially discussed using new technology involving injections, but again, nothing ever happened.

Cross-examination of Poje

[19] He did not know what B&W did or did not do when they owned some of the current MTD lands. With respect to General Spring, he stated that they would have used an alkaline cleaner, not chlorinated solvents.

[20] The 94 Borden St. property prior to its purchase by MTD, was used to clean up new cars for delivery to customers. This was essentially a superficial cleaning place and all waste discharge went into the City of Kitchener’s sanitary sewer, not into a pit in the ground.

[21] The Charles Street property contained an AST and a considerable amount of cleanup was required to get rid of the hydrocarbon contamination. Although the hydrocarbon contamination was high, it was contained and remediated, and no chlorinated solvents were present.

[22] On the Ottawa Street property there was a UST outside the building and the hydrocarbon contamination was remediated. The Ottawa property was purchased by MTD in the 1990s.

[23] MTD received the Interim Phase II Environmental Site Assessment report dealing with the subject properties from MTE, on or about March 30, 2012, (Ex. 2, T 48) and a Final Phase II Environmental Site Assessment on or about March 28, 2013. (Ex. 2, T 52)

[24] The chart on page 1972 of the Final Phase II Environmental Site Assessment report shows concentrations of dichloroethylene, trichlorethylene and vinyl chloride in concentrations substantially above MOE guidelines. (Ex. 2, T 52, P 1972)

[25] MTD had received engineering reports authored by XCG and AGRA from Arnold Schwartz and/or Bob Good who were previous owners of 94 Borden Ave. It received this information on or about June 29, 2001, prior to their purchase of 94 Borden Ave.

[26] While Poje deferred the exact date to the witnesses from MTE, his recollection was that MTD started to see chloride solvents impacting the 60 Ottawa St. property by March 28, 2013.

[27] Based on the information he received from MTE, as a result of the numerous monitoring wells which were installed along the property line between the 1361821 Ontario Inc.’s 70-74 Borden Ave. property and the MTD property, he was informed and concluded:

1. There was no transference of contaminants from the Charles Street property to the 70-74 Borden St. property

2. Contaminants were flowing from the 70-74 Borden Ave. property onto MTD lands.

3. The flow of the groundwater was away from the 70-74 Borden Ave. in a southeasterly direction onto MTD lands.

4. Since no chloride solvents were found on the 60 Ottawa St. property, the contaminants did not come from that property.

Edward Henderson

[28] Henderson worked at MTD for 16 ½ years from 2005 until his retirement on April 1, 2022. He is a CA/CPA and started as the Vice President of Finance. On or about March 2013, he became Vice President of operations.

[29] As Vice President of operations, he was responsible for the management of the facility and Poje reported to him.

[30] He testified that:

1. No chlorinated solvents were purchased, handled, stored or disposed of on the subject MTD lands.

2. There were no chlorinated solvents on MTD lands that did not originate from the 70-74 Borden Ave. property.

3. At no time during his tenure, did the Ministry of the Environment or the Ministry of Labour raise any concerns about chlorinated solvents.

4. The safety committee at MTD never raised any concerns about chlorinated solvents.

[31] Initially they found contamination from chlorinated solvents on the 94 Borden Ave. property and later, on the 60 Ottawa St. property. MTD saw contamination levels increase over time with new areas becoming affected.

[32] It was nonsensical to try to remediate any of the MTD properties until the flow of the contaminants were stopped.

[33] Pursuant to his personal discussions with Sandal, Henderson testified that Sandal:

1. Never disputed that the contamination came from his land at 70-74 Borden Ave.

2. Discussed proceeding with excavating contaminated soil and remediating the area with injections.

3. Was working with his own consultants.

4. Would provide an action plan to remediate the site.

5. Continued to state that he was working on a plan.

[34] However, despite numerous discussions and promises to himself and Poje, Sandal never did anything.

[35] He briefly detailed his discussion with Peter Benninger, a real estate agent and others, with respect to looking for a way to get the most value for the MTD land. Basically, it all came down to remediating the land so they could get a Record of Site Condition. This would allow them to proceed to obtain a zoning change, ultimately leading to much higher density residential and commercial use for the land.

[36] He confirmed that all of the environmental invoices from MTE set out in Ex. 2 T’s 72-108, pertained to work done on the subject lands.

Cross-examination of Henderson by Sandal

[37] Henderson confirmed that there was a discussion with Sandal about both of them co-operating to get the land remediated, but he stated this was not to be a joint venture and he continually waited for Sandal to present a plan of action, which he never did.

Peter Benninger

[38] Benninger is a real estate agent/broker with a great deal of experience in the land development business. He stated that people would hire him to be the “quarterback” of the process, aimed at positioning their land for its highest and best use, which would bring the highest price.

[39] He described the subject lands as being the largest available plot of land in the area and the LRT bordered it on two sides. As long as the environmental situation could be resolved, he thought the 13 acres of currently contaminated land could bring as much as $30-$40,000,000. Without remediation the estimated the value would drop by as much as 50%

[40] In addition to the 13 contaminated acres, MTD owns another 5 contiguous acres for a total of 18 acres.

Peter Gray

[41] Gray has approximately 35 years of expertise in the Hydro Geology area of environmental science. He graduated from the University of Waterloo in 1987 and joined MTE in 1995. His resume is set out at Ex. 4 T 1.

[42] He has worked on many contaminated sites which work lasted anywhere from a short time to a couple of decades.

[43] Mr. Sandal agreed and the court qualified Gray as an expert in geology and hydro geology.

[44] Gray testified that the groundwater in the area flows in a south easterly direction. He took the court through the science of boreholes and monitoring wells, which allowed him to conclude that the contamination was emanating from the 70-74 Borden Ave. property owned by 1361821 Ontario Inc.

[45] He stated that approximately 70 boreholes in total were installed. The water levels were tracked over time from at least 2006 to date.

[46] From the monitoring wells, one can also calculate the speed of the groundwater flow, which in this case is approximately 2 meters per year. This would mean that contaminants could travel approximately hundred meters in 50 years.

[47] Trichlorethylene is heavier than water and the plume it creates is different than the plume created by contaminants which are lighter than water. That is one of the reasons that the monitoring wells are set at different depths.

[48] Trichlorethylene eventually breaks down into what he described as “daughter products” being dichloroethylene, vinyl chloride and ethane.

[49] From approximately 1948 to 1974 chlorinated solvents had been used on the 70-74 Borden Ave. property as a degreaser which is an effective product used to clean steel. It is not possible to tell when the contamination started.

[50] MTD could not have been the source of the contaminant for several reasons being:

1. MTD has no record of using, storing or disposing of chlorinated solvents on any of the lands it owns which are involved in this court action.

2. All of the extensive geological evidence pinpoints the source of the contaminant as coming from 70-74 Borden St.

Peter Gray – Cross Examination

[51] Groundwater flows horizontally and vertically all the time. The deeper one goes in the groundwater the less the fluctuation. He thought the grade change on the surface in the area, was approximately 1 m. He described the land as being pretty flat.

[52] Gray was asked on numerous occasions and in numerous different ways what the direction of flow in the groundwater was. Although it changes slightly, his answer was that in general the groundwater in the area flowed south towards Schneiders Creek. In doing so it may also flow slightly to the west or slightly to the east, but it always flowed south towards Schneiders Creek.

[53] Although he was shown several maps from Ex. 2, including Ex. 2, T 109, Ps 3109 – 3016 his answer remained the same, in that the general flow of the groundwater was in a southerly direction.

[54] He stated that there are fluctuations in flow rates and water levels which are constantly changing depending on the seasons and the amount of rain or snow etc.

[55] To determine his readings, Gray used historical data and had access to the readings from approximately 70 monitoring wells over a significant period of time.

[56] He stated that Fedy had the ultimate decision of where the holes should be drilled and that he had the final say on the depth and the construction of the wells.

Robert Fedy

[57] Fedy is a civil engineer with 35 years of experience in the environmental engineering field. He does phase 1 and phase 2 assessments and files for Records of Site Condition. There were no comments with respect to his qualifications from Mr. Sandal and he was qualified as an expert in environmental engineering.

[58] Fedy previously worked for environmental engineering company known as Frontline before moving on to MTE.

[59] His curriculum vitae is set out at Ex. 4 Tab 2. His expert report dated June 11, 2021, is at Ex. 2, Tab 109 and a written summary of his report was marked Ex. 3.

[60] He started with the conclusion of his findings stating:

1. The chlorinated volatile organic compounds (cVOC) which are the concern in this lawsuit originated on the 70-74 Borden Ave. property.

2. The benzene which comes from gasoline and was found on the 61 Kent Ave. came from a UST on the 70-74 Borden Ave. property.

[61] The main concern is with the cVOC material, which is present high concentration and flows with the groundwater from the 70-74 Borden Ave. property to lands owned by MTD.

[62] cVOC includes trichlorethylene and all the products it changes into as it degrades. Those chemicals along with benzene are carcinogenic. By government regulations the maximum allowable amounts of TCE are 1.6 ppb and for benzene 5 ppb. These are very low numbers. Trichlorethylene (TCE) and the products it degrades into are the chemicals this court action is concerned with.

[63] He stated there were two possible ways to deal with the current situation and that would be:

1. to clean up 70-74 Borden Ave. or

2. by trying to protect the MTD lands from further continuing contamination.

[64] He estimated that it would cost about $4,000,000 to remediate all of the properties including 70-74 Borden Ave.

[65] He took the court briefly through the difference between phase I and phase II environmental assessments. Phase I involves a site inspection and the gathering information to assist with the phase II inspection. The phase II inspection is intrusive and involves boreholes and monitoring wells.

445-449 Charles St.

[66] There was never any cVOC on this property and all hydrocarbon contamination has been remediated. Groundwater samples from 2007 to 2012 confirmed that there is no contamination on this property. Therefore, this property is not and was not the source of petroleum hydrocarbon or chlorinated solvents found on 70-74 Borden Ave.

61 Kent Ave.

[67] This property borders 70-74 Borden Ave. to the west. There are at least six monitoring wells on the border between the two properties.

[68] While some benzene has been found in MW-37, readings there have always been lower than readings on 70-74 Borden Ave. The most likely source of the benzene is from a UST or former UST situated on the 70-74 Borden Ave. property.

97 Kent Ave.

[69] This property is directly south of 61 Kent Ave. and 70-74 Borden Ave. There are 13 MWs on this property. There is no history of chlorinated solvent use on this property.

[70] cVOC was found in two locations. It was Fedy’s professional opinion that the contaminants found in MPW-403 migrated from 70-74 Borden Ave, through 94 Borden Ave. to reach 97 Kent.

[71] The two locations are some distance apart and the contamination is not linked. In Fedy’s professional opinion the contamination found at MW-217 which is near Schneiders Creek would have come from an unknown source upstream. In any event it did not come from 70-74 Borden Ave.

94 Borden Ave.

[72] This smaller piece of property is located south of 70-74 Borden Ave. and north of 97 Kent Ave. It was first investigated by an environmental company known as AGRA in 1999. At that time AGRA found benzene and vinyl chloride.

[73] MTE found significant concentrations of the breakdown products of TCE at deeper depths.

[74] Because they did not find any TCE in the soil or shallow groundwater Fedy concluded, that the contamination did not come from 94 Borden and that the source was 70 – 74 Borden.

60 Ottawa St. S.

[75] This larger piece of land is across Borden Avenue and lies to the east and southeast of 70-74 Borden Ave. 80% of the property is covered by a building. There are no below grade pits, tunnels or crawlspaces.

[76] Investigation of this property consisted of 21 boreholes, 17 shallow MWs, 2 deep MWs and to multiport MWs.

[77] All contamination was recorded at the northeast portion of the property adjacent to Borden Avenue. TCE with no significant degradation was found between five and 10 m down in the groundwater.

[78] It was Fedy’s professional opinion that this contamination was emanating from 70-74 Borden Ave. He pointed out that the contamination was mostly on the west side of the property where it borders 70-74 Borden Ave. and that there was no contamination on the east side of the property. Therefore, he stated that the Ottawa property could not be the source of the contamination.

[79] He also referred the court to a letter from XCG to Arnold Schwartz (a previous owner of 70-74 Borden) dated April 26, 1996. Attached to that letter is a diagram showing contours of TCE contamination in the groundwater.

[80] The contours clearly show that the source of the contamination is coming from the Southwest corner of the buildings on the 70-74 Borden Ave. property. (Ex. 2, T19, P 185) The contours are in a general horseshoe shape with the outside contour registering 10 ppb and the inner portion registering 10,000 ppb.

[81] These contours extend off the 70-74 Borden Ave. property to the south and southeast, onto MTD property.

[82] With improved scientific techniques and updated data, Fedy plotted other contours which showed the migration of contaminants in similar concentrations from a second site. This site is near the eastern edge of 70-74 Borden Ave. and the plume extends in an easterly direction from 70-74 Borden Ave. “across” Borden Ave. onto the MTD property at 60 Ottawa St. S.

[83] This confirmed Hilker’s hypothesis that there was more than one source of contamination. Fedy estimated that if there was a pit 8 feet long by 6 feet wide and 4 feet deep, used to dump chemicals into, it could have contained hundreds of gallons of TCE within the 1,200 gallon volume of the pit.

[84] On November 22, 1999, the MOE wrote to Sandal advising him that plumes of contamination were egressing from his property onto other properties. (Ex. 2, T 30. P 290) This is what likely lead to Sandal hiring Hilker to do an environmental report, which is dated August 24, 2001. Therefore, Hilker’s report would only include monitoring before that date. No other person or company has come to the same conclusions as Hilker.

[85] In December 2021, Frontline produced a report to MTD who were thinking about buying 70-74 Borden Ave. from Sandal. (Ex. 2, T 40) At that time 7 of the 11 MWs placed on the property by Hilker were still functioning. Two of the wells contained the highest concentration of cVOC’s that had previously been found by others, including Hilker.

[86] Fedy disagrees with Hilker’s conclusion that the cVOC’s had greatly declined through natural processes. At the time Hilker did not use industry standards of testing procedures and because of this, his findings and conclusions should be rejected.

[87] Fedy is not aware of any other environmental report done for Mr. Sandal or any other environmental report that reaches the same conclusions as Hilker.

[88] After reviewing Hilker’s report dated August 24, 2001, the MOE wrote a letter to Sandal dated October 9, 2022, which in part critiques the Hilker report. (Ex. 2, T 41, P 491) Fedy he does not know whether Sandal or someone on his behalf responded to MOE. He also does not know why the MOE did not pursue the issue, if they didn’t.

[89] Specifically at paragraph 4 (Ex. 2, T 41, P 491) of the memorandum which accompanied their August 24, 2001 letter, the MOE specifically states

“4. The conclusion that “oxygen is the primary ingredient in the destruction of VOCs” to explain the significant reductions in 1-1- DCE, cis-DCE and vinyl chloride observed between 1996 to 2001, is unsubstantiated for the following reasons: …”

[90] In 2004 Frontline was asked to do a phase II investigation on 50 Borden Ave. which is directly north of 70 – 74 Borden. No cVOC products were found. This would have been at least three years after such products were found at 70-74 Borden. Therefore, 50 Borden is not the source of the present contaminants.

[91] Fedy concluded, as did AGRA, XCG, Naylor and Hilker before him, that the flow of groundwater was to the South and Southeast, from the higher elevation at Charles Street in the north to the lower elevation at Schneider Creek to the south.

[92] Fedy then told the court about DNAPL (dense non-aqueous phase liquid). In essence this would be TCE in a pure form and none was found on any MTD lands. Any TCE found on MTD lands was found in a dissolved state in groundwater along with segregated products of TCE. He stated that TCE or its degraded products in a dissolved state in groundwater can be referred to as a plume.

[93] At this stage of the proceedings, Fedy produced Ex. 5 to show the contours from the second contamination source on the 70 – 74 Borden property. He had testified about the second source earlier in his testimony but produced Exhibit 5 hoping it was easier to follow. Ex. 5 is an updated version of the contour lines shown at Ex. 2, T 18, P 185 and includes the second source of contamination on that site.

[94] He testified that when DNAPL dissolves in groundwater, the groundwater turns into a contaminated groundwater plume and travels in three dimensions having a width, length and depth.

[95] In 1996, chemicals discovered in the groundwater plume did not extend to the north or west of 70-74 Borden.

[96] The extent of the contaminated plume emanated in a south and southeasterly direction from 70-74 Borden Ave. as shown in the figure at Ex, 2, T 109, P 3121.

[97] The two sources of contamination appear to be coming from near MW-15, in the south-westerly part of 70 – 74 Borden and from MW-10 in the middle of the eastern boundary of 70-74 Borden Ave.

[98] As time went on and more evidence became available, and technology improved, the shape of the plume and its direction of travel remained similar. The plume remains open ended at its southerly end.

[99] With the addition of the work done on 50 Borden Ave., 70-74 Borden Ave. the land owned by 1361821 Ontario Inc. could be described as encircled.

[100] Fedy concluded that:

1. TCE and its degraded products originated on 70-74 Borden Ave.

2. The contamination traveled in a south to southeasterly direction via the natural flow of the groundwater.

3. The contaminated plume impacts, 94 Borden Ave., the north-eastern part of 97 Kent Ave. and the central portion of 60 Ottawa St.

4. The contamination comes from 2 pits or former pits which existed at 70-74 Borden Ave. and were used to decrease metal during a manufacturing process. The pits were closed before Schwartz bought the property in 1984 and were covered over with concrete.

5. If nothing is done, the contamination will make its way relentlessly to Schneider Creek in an estimated time of approximately two decades.

6. MTD is responsible, at least in part to stop the flow of contaminants into Schneider Creek.

[101] There are four other environmental situations on MTD land, that have nothing to do with TCE or its byproducts and are not attributable to contamination emanating from 70-74 Borden Ave.

[102] These four problem areas include:

1. Metals/inorganics that were found in the groundwater on the southeast part of 61 Kent and northerly part of 97 Kent.

2. Vinyl chloride that was found in MW-217, which is believed to have come from, either an upstream source or maintenance work done on Schneider Creek.

3. Hydrocarbons found at the Southeast corner of 60 Ottawa St. believed to have come from asphalt likely buried during work on the Schneider Creek Bank.

4. Contamination in one MW on the north boundary of 60 Ottawa, which is not related to TCE and probably came from a property to the north of 60 Ottawa.

[103] The four above areas would not be fixed if only the 70-74 Borden Ave. problem was fixed.

[104] Fedy stated that there are two possible solutions, but in any event, MTD will require a Record of Site Condition issued by MOE.

[105] The two solutions are to either:

1. Build a semi permeable barrier between 70-74 Borden Avenue and its neighbouring properties or

2. To excavate and haul away contaminated soil and remediate the groundwater at the same time.

[106] Fedy is not in favour of option 1 and stated, that if it can be done and is acceptable to MOE it potentially only benefits MTD, leaving the 70-74 Borden Ave. lands still contaminated, whereas option 2 would remediate both the 1361821 Ontario Inc. lands and the MTD properties.

[107] He estimated the costs for the option 1 barrier wall at $4.3 million and the costs of option 2 at $3.95 million. (Ex. 7)

[108] Fedy suggested the following steps would have to be taken and the following timelines adhered to if option 2 were chosen:

1. 1361821 Ontario Inc. would be given one year to retain an environmental consultant who must be designated as a “qualified person” under regulation 153/04 which is a regulation under the Records of Site Condition regulations.

2. The qualified person would investigate 70-74 Borden Ave. S. in the City of Kitchener and delineate the extent of VOCs in the soil and groundwater vertically and horizontally.

3. The “qualified person” would prepare a written remedial action plan to be delivered for review and acceptance by MTD, of a strategy to complete the work and remove the contaminated soil to a suitable depth below grade. This strategy must include confirmatory sampling to assess its effectiveness to carry out groundwater dewatering before and during the source zone excavation. It must also document the required permits and approvals necessary to the work.

4. This preliminary stage must be completed within one year of the court’s judgment.

5. 1361821 Ontario Inc. shall commence and carry out all of the work identified in the remedial action plan and agreed to by MTD. The work shall be completed not later than 4 years from the date of the court’s judgment.

6. 1361821 Ontario Inc. shall deliver a written report to MTD signed by a “qualified person” setting out the result, findings and conclusions of the remedial work carried out, no later than 50 months from the date of the court’s judgment.

7. Within 6 years of the date of the court’s judgment 1361821 Ontario Inc. shall obtain a Record of Site Condition acknowledged by the Ministry of the Environment Conservation and Parks and it shall be filed in the electronic registry system for the filing of such documents.

[109] He reviewed Ex. 2 Tabs 72 to 108 which are MTE invoices rendered for work done by MTE as a result of the situation this court action is concerned with. After concluding that the invoices at tabs 102, 103 and 104 did not relate to this project he testified that the amount MTE has billed up to invoice 108 is $309,908.80. (Ex. 7)

[110] Before his cross examination began on April 25, Fedy stated there was another expense that should be taken into account if excavation was to be the method of remediation.

[111] He indicated that this would involve a dewatering system which he described as pumping water out of the hole as the excavation was proceeding, treating the water and then discharging it into the municipal sewer system. This type of project would involve legislation under the Occupation Health and Safety Act which is under the purview of the Ministry of labour. He estimated the cost for this at $260,000. (Ex. 8)

Cross Examination of Fedy

[112] Fedy was questioned extensively about the direction of the groundwater flow. He confirmed that the direction of water flow for any particular date, was determined by first measuring the height of the groundwater above sea level. Then an arrow could be drawn perpendicular to the display of contours which would represent the groundwater flow.

[113] Although on November 9, 2011, the arrow representing the direction of groundwater flow is in a southwesterly direction, he stated that when all of the evidence is factored in, the groundwater flow in the area is essentially in a southerly direction towards Schneider Creek. (Ex. 2, T 52, P 1943) Although the direction of groundwater flow at page 1943 appears to be in a more westerly direction, the coordinates mapped on this page only refer to the Ottawa Street property and only for November 9, 2011. He stated that the utility corridor under Borden Avenue may be influencing the groundwater flow on this one particular property.

[114] In any event, despite repeated questions on the issue from Sandal, he stated that the groundwater was not flowing from 60 Ottawa St. onto 70-74 Borden Ave.

[115] Fedy again stated, that the most accurate map to look at, is at Ex. 2, T 109, P 3116. This map shows the contour lines for the height of the groundwater and the direction of flow updated to 2020. It represents the most comprehensive information available. It shows the groundwater flowing in a south to southeasterly direction. It further shows that the groundwater flows away from 70-74 Borden Ave. towards 60 Ottawa St.

[116] The information for this map comes from all the properties surrounding 70-74 Borden Ave. In addition, Schneider Creek flows from West to East and is south of the subject properties.

[117] All of the consultants starting in 1995 being, CH2M Hill, XCG, AGRA, and Naylor all concluded that the groundwater flowed in a southerly direction.

[118] When Fedy was asked about the map at Ex. 2, T 69, P 2704 and at Ex.2, T 109, P 3116, he stated:

1. The map on page 2704 only reflected information gathered from the Ottawa Street property while the map at page 3116 reflected information gathered from all of the subject properties.

2. The map on page 2704 was hand-drawn while the map on page 3116 was computer-generated using groundwater levels across the entire study area and is much more precise.

3. The map on page 2704 is from information gathered up to 2018 while the map on page 3116 is from 2020.

[119] Fedy stated that groundwater levels can fluctuate year by year and by a metre or more on a seasonal basis.

[120] Sandal again asked questions pretending to why the maps at Ex. 2, T 52, P 1943 and Ex. 2, T 69, P 2704 show the groundwater flowing in a more westerly direction while the maps at Ex. 2, T 71, P 2818 and Ex. 2, T 109, P 3116 show the groundwater flowing in a southerly direction.

[121] Fedy’s answer to the question was essentially the same as it had previously been which was:

1. The maps at Ex. 2, Tabs 52 and 69 only dealt with the Ottawa Street property while the maps at Ex. 2, Tabs 71 and 109 reflect information from all the subject properties.

2. The maps at Tabs 52 and 69 reflect information for 2011 and 2018 respectively, while the maps at Tabs 71 and 109 reflect information on two different dates in 2020.

Fedy went on to state that:

3. The maps at Tabs 71 and 109 begin to demonstrate the influence of Schneider Creek on the direction of the groundwater flow.

4. The maps at Tabs 52 and 69 lack information in the proximity of Schneider Creek.

[122] Fedy stated there was no contamination in the northern part of the 60 Ottawa St. property and therefore no contamination could flow from the northern part of 60 Ottawa St. to 70-74 Borden Ave. even if the groundwater flowed in that direction, which it did not.

[123] With respect to the Ottawa Street property, Fedy indicated that to some extent he relied on the Phase 1 environmental report from CH2M Hill which report is dated September 1995. (Ex. 2, T 13) He acknowledged that some of the processes carried on, on the subject properties in the 1950’s and 1960’s would have been industrial activities, but he was unable to infer what type of chemicals they may have used.

[124] Based on the Phase II environmental report of CH2M Hill report dated October 1995 (Ex. 2 T 14), with respect to the Ottawa Street property, he is able to state that the industrial processes appear to have taken place on the south-east portion of the building near Ottawa Street. This is on the other side of the property from Borden Avenue. The parts of the building where industrial work took place are labelled as numbers 1, 2, 3 and 4. (Ex. 2, T 14, P 91)

[125] These areas of the building are south and east of 70-74 Borden Ave.

[126] After repeated questioning on the issue, Fedy indicated that MTE had sufficient monitoring wells to allow them to conclude that the contamination was coming from 70-74 Borden Ave. He stated several times that MTE had a good understanding of the soil and groundwater below the building on 60 Ottawa St. and that they have other monitoring wells on the 60 Ottawa St. property.

[127] In addition, MTE looked at all of the other potential sources of information, including water generator records, City of Kitchener records, and Ministry of the Environment records etc.

[128] He stated that the number of monitoring wells at 61 Kent were 10, at 97 Kent there were 13 and at 60 Ottawa St. there were 20. If there were buildings on the property some of the monitoring wells would have been drilled inside the building.

[129] Fedy did not have the exact area in acres for the different parcels of land nor did he have the exact square footage for any buildings on the property. He stated however, that he was more than satisfied with the number of and placement of the monitoring wells.

[130] He was repeatedly asked what the various properties had historically been used for. This information is set out in his and other environmental reports. He stated that MTD did not use THC on any of the subject properties.

[131] Sandal suggested that on the area of the 60 Ottawa St. property was 8.2 acres and that the building covered 247,000 ft.² of land. Fedy stated that he was satisfied with MTE’s investigation and said that if there was any TCE on the 60 Ottawa St. property he would have found it. He did not find any TCE and therefore there was none.

[132] Fedy further stated:

1. The TCE flowing from 70-74 Borden Ave. towards 60 Ottawa St. was flowing deep and underneath the Borden Street utilities.

2. There was no water contamination found on the northern boundary of 60 Ottawa St. which would flow towards 70-74 Borden Ave.

3. Even if there was such contamination, (which there wasn’t) it would merge with the flow of contamination from 70-74 Borden Ave. and flow south.

4. The higher concentrations of TCE were found on 70-74 Borden Ave. and therefore the flow of that contaminant would be away from 70-74 Borden Ave.

[133] Fedy confirmed that there are approximately 70 on a monitoring wells over all of the properties and he relied on the CH2M Hill report and MTE phase I report to decide where to drill more wells. There are approximately 20 monitoring wells on the 60 Ottawa St. property, with 5 to 7 of the holes being drilled within the building envelope.

[134] Hill did not find any TCE and MTE who drilled down gradient from the Hill holes, did not find any trace levels of TCE. MTE also had the benefit of monitoring the wells through 10 years between 2010 and 2020. MTE did not find any TCE, either in the soil or the groundwater.

[135] In answer to persistent questions about any groundwater that may travel west towards 70 – 74 Borden from the northerly limit of 60 Ottawa St., Fedy stated that if there was any such flow, when it reached Borden Avenue it would merge with the groundwater flowing south easterly from 70-74 Borden Ave. and the merged groundwater would then continue on in a southerly direction.

[136] Fedy confirmed that MPW21–11 recorded the highest levels of TCE down to the 12 foot level. MW101 and MPW513 had low levels, therefore the main concentration of contaminants went through the area of MW 21 while the periphery of the plume passed near MW 101 and MPW 503. TCE levels in these wells have been increasing for over 10 years since MTE began its investigation.

[137] The MOE did not make any orders with respect to the subject property after 2002 that Fedy is aware of.

[138] Levels of contamination have increased for the last five years on 94 Borden Ave. and 60 Ottawa St. Fedy does not have any information for 70-74 Borden Ave. after 2001.

[139] Fedy again explained the lines on Ex. 5, stating that the lines represent TCE and its breakdown products by total concentration of those products in the groundwater.

[140] Fedy testified that MW 4 has always been clean and MW 3 only had low concentrations of contaminants in 1996 and has not been revisited.

[141] He again stated that his preferred way to remediate properties would be to excavate. He stated that all the buildings on 70 – 74 Borden and 94 Borden should be torn down and the soil should be excavated and remediated

[142] He was asked questions about a Regenesis program which Fedy acknowledged only hearing about.

Marco Sandal

[143] At the end of MTD’s case Sandal was invited to call whatever evidence he wished to rely upon. He stated that he would not call any evidence because he did not have an environmental expert. He was reminded that all of the statements he made while asking questions of other witnesses were not evidence and if he wanted his comments to be considered as part of the evidence at this trial, he should take the stand and put his position forward.

[144] Sandal then went into a soliloquy about not having an expert witness and being prevented from getting an expert witness and he asked again to have the trial adjourned so he could obtain an expert witness.

[145] After being advised several times that he had not put any evidence before the court to assist the court in making his decision, and after the court advised him on several occasions that it was not prepared to adjourn the action, the trial was adjourned early that day to allow both parties to prepare for their summations.

FINDINGS

[146] My findings start with Ex. 1, the request to admit. Without repeating all 95 paragraphs in the Request to Admit, that the defendants have been deemed to admit, the court notes in summary:

1. 1361821 Ontario Inc. was dissolved on December 24, 2007,

2. Sandal received the assets of 1361821 Ontario Inc. upon its dissolution and assumed its liabilities,

3. Sandal knew the 1361821 Ontario Inc. lands were contaminated when he took possession, care and control of the lands in November 1999, and purchased them on about January 13, 2003,

4. During his negotiations to purchase the 1361821 Ontario Inc. lands, Sandal negotiated with the City of Kitchener which agreed to write off certain outstanding property taxes and to provide a tax break for the next four years,

5. In return, 1361821 Ontario Inc./Sandal promised to complete an environmental cleanup of the 1361821 Ontario Inc. lands,

6. Sandal in his own words on December 16, 1998, knew that the environmental cleanup would be, “very difficult and costly with a heavy pollutant”,

7. Prior to his purchase of the 1361821 Ontario Inc. lands, Sandal had:

a) retained environmental consultants with respect to remediating the contamination on the property,

b) been notified by the MOE with respect to the lands that “contamination has been identified on his property with contaminant plumes egressing into neighbouring properties”

8. By letter dated October 9, 2002, the MOE, in a letter to Sandal indicated that Sandal’s environmental engineer “Hilker” indicated a Certificate of Approval Application would be forthcoming, but they had not received one. Sandal never replied to that letter.

9. By letter dated June 23, 2005, from Hilker to Sandal, Hilker outlined an action plan for treatment of the contamination. This plan was not commenced by Hilker or anyone else.

10. During meetings in the fall of 2013 between Sandal, Poje & Henderson, Sandal agreed to develop an action plan to remediate the 1361821 Ontario Inc. lands and stop the flow of contaminants onto MTD land from all sources located on the 1361821 Ontario Inc. lands. He did not follow through on his promise.

11. During a similar January 2014 meeting, Sandal assured MTD that he would have an action plan in place by May 2014. He did not follow through on this promise.

12. Despite letters from the lawyers for MTD in 2014 and 2015 and from the MOE in 2015, no action plan has ever been submitted much less implemented.

13. Because the lands have not been remediated, the City of Kitchener taxes have not been forgiven and as of January 2017, the taxes owing stood at over $1.8 million.

14. There has been no chlorinated solvent or petroleum hydrocarbon use by MTD or its predecessors at or near the common boundaries between the 1361821 Ontario Inc. lands and the MTD lands.

15. 1361821 Ontario Inc. and Sandal are legally responsible for the contaminants on the MTD lands as testified to by Fedy.

16. As a direct result of contamination originating on the 1361821 Ontario Inc. lands and migrating to the MTD lands, MTD has suffered and will suffer a loss in damages:

a) including a decrease in fair market value of the MTD lands,

b) the cost of environmental and other professional advice to investigate and assess the extent of the contamination and

c) to plan remedial measures and cost of remedial measures.

[147] Sandal made promises to MTD, the MOE and the City of Kitchener, to clean up the 1361821 Ontario Inc. property, which he failed to keep.

[148] The court finds that it is the TCE and its daughter products which are responsible for the contamination on:

1. 94 Borden Ave. where it borders 70-74 Borden Ave.,

2. 97 Kent St. where it borders 94 Borden Ave. and

3. 60 Ottawa St. where it borders Borden Avenue

have all migrated and continue to migrate to those properties from 70-74 Borden Ave.

[149] The groundwater flow of contamination to the MTD properties can be visually seen by looking at Pages 3109 and 3117 of Ex. 2, T 109 at the same time. Page 3109 shows the location of the properties in relation to one another, while page 3117 shows the plume of contamination emanating from 70-74 Borden Ave. onto 94 Borden Ave., 97 Kent St. and 60 Ottawa St.

[150] Based on the extensive expert evidence gathered over more than 20 years, it is obvious that the groundwater flows is generally in a southerly – southeasterly direction. Therefore, groundwater flowing under 70-74 Borden Ave. would flow towards the above-mentioned properties. As the groundwater flows under the 70-74 Borden Ave. property, it obviously becomes contaminated by TCE and its daughter products that I have found exist on that property. The groundwater then relentlessly transports those contaminants to the properties situated to the south and southeast of 70-74 Borden Ave.

[151] Based on the admissions of Sandal and the evidence of Gray and Fedy, the court finds on a balance of probabilities that the contamination by TCE and its degraded /daughter products as described by Mr. Fedy, are polluting MTD land and they have been and are originating on the defendant’s land at 70-74 Borden Ave.

[152] Three of the issues raised in this court action with respect to damages are nuisance, negligence and trespass.

Nuisance and Negligence

[153] Based on the case law, to be actionable, nuisance consists of an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable as opposed to trivial. (Antrim truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, para. 18 & 19)

[154] Based on the facts of this case, where serious contamination originated on the defendant’s property, flowed onto and contaminated several parcels of land owned by the plaintiff, the court finds that the defendants have created a nuisance which was and is both substantial and unreasonable.

[155] Based on the case of Thompkins Mews Inc. v. 1332334 Ontario Inc., 2006 CarswellOnt 820, liability in nuisance is strict. (para. 36)

[156] In the case of Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Limited, 2014 ONSC 288, the court found the defendant liable in both nuisance and negligence when it allowed gasoline contamination to escape onto a neighbouring property.

[157] Likewise in the case of Sorbam Investments Ltd. v. Litwack, 2020 ONSC 5226, the court found the defendants liable in both nuisance and negligence when contaminants migrated from its property to a neighbouring property. (para. 134) In addition the court stated with approval, the following quote from the Ontario Court of Appeal in Schoeni v. King, 1943 CanLII 96 (ON CA), [1944] O.R. 38:

The occupant of property will be liable for a nuisance not created by him, and even though it has arisen without his own act or default, if he omits to remedy it within a reasonable time after he knows of its existence, or ought to have become aware of it.

[158] Sorbam states almost the same thing again at paragraphs 81 and 82.

[159] On facts similar to this case, the court in Sorbam stated the following at paragraphs 146, 154, 156, 157 & 158:

146 I find as follows:

i. at the latest, 112Co had knowledge of the contamination migration issue on May 11, 2011;

ii. 112Co. allowed the migration of the contaminants to continue after this date;

iii. 112Co. failed to take steps to address the problem within a reasonable period of time thereafter; and

iv. as a result of 112Co.’s inaction, there was an increased environmental contamination of 1770 Woodward and Sorbam suffered additional harm.

154 I find that the migration of contaminants from the source on 1760 Woodward to 1770 Woodward constituted a nuisance. Despite having knowledge of the nuisance no later than 2011, 112Co. failed to take appropriate steps to address the problem. … 112Co. did not create the nuisance but, in allowing it to continue, 112 Co. is liable to Sorbam for the damages caused.

156 As an adjoining landowner, 112Co. owed Sorbam a duty of care to avoid acts or omissions that may cause harm to adjoining landowners: …

157 I find that 112Co. failed to comply with the standard of care expected of a reasonable landowner. 112Co. knew or ought to have known of the contaminant migration in 2011 when it was put on notice by the MOE. I reject the submission that 112Co was “trying to determine how it should respond”: the MOE told 112Co what was expected.

158 Instead, 112 Co. through its principal Mr. Wall, made a calculated decision to ignore the MOE and its request that 112Co. address the migration of contaminants onto 1770 Woodward….

[160] Based on the over whelming evidence presented to this court, that contaminants have escaped from the defendants’ property and polluted the plaintiff’s property for over 20 years with full knowledge of the defendants, the court is more than satisfied on a balance of probabilities that the defendants have committed a nuisance and are guilty of negligence for allowing contaminants to escape from their property and flow onto and contaminate the plaintiff’s property

Trespass

[161] The court is also satisfied on the evidence before it that the defendants have committed trespass by allowing contaminants to escape from their property and flow onto and contaminate the plaintiff’s property.

Personal Liability

[162] The plaintiff referred the court to several cases which dealt with lifting the corporate veil.

[163] In the case of Holmes v. Jastek Master Builder, 2004 Inc., 2019 SK CA 132, the Saskatchewan Court of Appeal acknowledged that the corporate veil “must only be pierced sparingly”. The court went on at paragraph 120 to state:

120 Although some jurisdictions espouse an approach that comes very close to restricting the lifting of a corporate veil to situations of fraudulent or improper conduct or agency … our court has historically taking a more fact-based approach. …

After reviewing the foregoing, and many other cases, the only conclusion I can reach is this: while the principle laid down in Salomon v. A. Salomon & Co. Ltd., supra, is and continues to be a fundamental feature of Canadian law, there are instances in which the Court can and should lift the corporate veil, but whether it does so depends upon the facts in each particular case. Moreover, the fact that the court does lift the corporate veil for a specific purpose in no way destroys the recognition of the Corporation as an independent and autonomous entity for all other purposes.

[164] In Sullivan et al. v. Desrosiers et al., 1986 CarswellNB 74, the New Brunswick Court of Appeal allowed the corporate veil to be pierced and stated the following at paragraphs 16 and 17:

16 The question here is whether Mr. Sullivan, who was a manager and principal employee of the company that committed the nuisance, may be responsible along with the company. I see no reason why, because of his involvement in creating and maintaining the nuisance, Mr. Sullivan should not also be responsible. Here, as the trial judge found, Mr. Sullivan was a principal employee of the company and the person responsible for the day-to-day operations and on that basis he was responsible for both creating and maintaining the nuisance. In addition he caused the company to be formed. It then took over the operation albeit on a larger scale, which eventually caused the nuisance. As pointed out above, nuisance is often a continuing situation and may involve many people, both managers and employees, in its creation and maintenance. In such cases their liability might become more difficult to ascertain than here where it was Mr. Sullivan’s continuing actions, although done on behalf of the company, which causes the nuisance.

17 Nor am I attracted to the submission that Mr. Sullivan is protected by the rule in Salomon v. Salomon … The question here, as I have pointed out, is not whether Mr. Sullivan was acting on behalf of or even if he “was” the company, but whether a legal barrier, here a company, can be erected between a person found to be a wrongdoer and an injured party thereby relieving the wrongdoer of his liability. In my opinion, once it is determined that a person breaches a duty owed to neighbouring landowners not to interfere with the reasonable enjoyment of the property, liability may be imposed on him and he may not escape by saying that as well as being a wrongdoer is also a company manager or employee.

[165] In the Thompkins case the court held that “employees, officers and directors will be held personally liable for tortious conduct causing physical injury, property damage, or a nuisance even when their actions are pursuant to their duties to the Corporation”. (para. 32)

[166] At para 37 of the of the Thompkins case the court stated:

37 There is no question here that the escape of the PCE’s into the Thompkins Plaza constitutes a nuisance. As noted, the Plaintiff’s experts have established that that nuisance was created by the dry-cleaning operations and therefore 133 and Pawan are jointly and severally liable under this claim. Once again, it does not matter that the nuisance may have commenced under 644’s tendency, since it was continued by the defendants. They may be jointly and severally liable along with the assignor 644, but the plaintiff need not choose what if the parties must sue.

[167] Based on the above cases and the facts of this case I see no reason why Mr. Sandal would not be liable along with his company 1361821 Ontario Inc. for the damages caused to MTD.

[168] Although Sandal did not testify and therefore could not be cross-examined, it appears:

1. 1361821 Ontario Inc. was created by Sandal,

2. Sandal was the only person involved in 1361821 Ontario Inc. and therefore was its directing mind,

3. 1361821 Ontario Inc. was dissolved in 2007,

4. Sandal has likely profited from using or renting out the subject property for over 20 years,

5. Sandal’s conduct by allowing the contaminants to contaminate MTD’s land is nothing short of egregious.

6. Based on question 94 in the Request to Admit (Ex. 1) Sandal acknowledged that both he and 1361821 Ontario Inc. are legally responsible for damages caused by the contaminants on MTD lands.

[169] This case cries out for the corporate veil to be lifted and for the controlling mind of 1361821 Ontario Inc. be jointly and severally liable for the damages that have been caused.

[170] While Mr. Sandal is very polite and has a pleasant mannerism, when it came to dealing with the issues in this case, he has played the part of what I might describe as the ostrich.

[171] While it appears that Mr. Sandal’s pleasant mannerisms have likely served him well over his lifetime, he has used them in this case to lull the defendants into a false sense of security by promising to do things, which it appears he had no intention of following through on.

[172] It is readily apparent to the court, and given Mr. Sandal’s engineering background, it would more than likely have been readily apparent to him, that MTD could not remediate their land until his land was cleaned up.

[173] Mr. Sandal’s submissions in one word, were preposterous. For the most part he appeared to be trying to testify from the counsel table. He then attempted to discredit the expert evidence that the court had heard, but without calling any expert evidence of his own.

[174] He suggested that contamination on the 70-74 Borden Ave. land came from MTD land and in particular from the northern area of the Ottawa Street property. As he did in his cross-examination of Gray and Fedy, he seized on one page out of many thousands of pages that shows a slight groundwater flow from the northern part of the Ottawa Street property towards Borden Avenue.

[175] The evidence from Mr. Gray and Mr. Fedy as a result of the same question from Mr. Sandal over and over again on this point, was that overall, the groundwater for all of the subject properties flowed south and southeast.

[176] Fedy also stated that any groundwater that might flow slightly west from the northly part of 60 Ottawa St. would not flow across the Borden Street boundary. Instead, it would join up with the groundwater flowing south and east across the 70-74 Borden Ave. property and would then continue its journey southward towards Schneider Creek.

[177] Sandal then submitted that there could not be much contamination since the MOE, Region of Waterloo and City of Kitchener have done nothing and therefore are not concerned about contamination. Other than Sandal’s submissions none, of the above-mentioned parties were called to give evidence at the trial.

[178] Although the court finds it unusual and concerning that the provincial and municipal agencies in charge of protecting our land and water from contamination seem to have placed this particular issue on the far back burner, Sandal is incorrect and the evidence before the court is the opposite of his submission. Both the City of Kitchener and the MOE are on record in this proceeding, of telling the defendants they needed to clean up the 70-74 Borden Ave. property.

[179] While Sandal submitted that MTE did not do enough to investigate the prior uses of the properties or drill enough holes or install enough monitoring wells to come to their conclusions, he did not call any evidence to support his submission and the evidence of the experts Mr. Gray and Mr. Fedy leads the court to the opposite conclusion.

[180] Sandal also submitted that the cost estimates put forward by Fedy are not accurate enough, however Sandal did not call any evidence on this issue and Fedy was firm that his estimates were accurate, notwithstanding that, when/if the project proceeds tenders would go out to the various third-party contractors to get more accurate and up-to-date prices.

[181] Sandal submitted to the court that using a product called Regenesis would be much a cheaper, better and less intrusive way of remediating the TCE, however he did not call an environmental engineer familiar with the product to testify at the trial.

[182] He next raised the issue of a limitation period defence that he did not raise in his pleadings.

[183] On the issue of the limitation defence Sandal drew the court’s attention for the second time to the case of Albert Bloom Limited v. London Transit Commission, 2021 ONCA 74. His interpretation of this case is that MTD is out of time to bring a claim against the defendants.

[184] The facts in the Bloom case are not the same as this case. In the Bloom case a current property owner was trying to sue of former property owner. Because the former property owners manufacturing activities ended in 1973, it was no longer responsible for a continuing tort.

[185] That is not the case here, where the property owned by the defendants continues to allow contaminated groundwater to impact the MTD’s land. The case at bar is more in keeping with the Supreme Court of Canada case of Roberts v. City of Portage the Prairie, 1971 CanLII 128 (SCC), 1971 SCR 481. The Supreme Court stated the following at page 491:

I adopt the proposition of law stated in Salmond on Torts, 15^th ed., at p. 791 as follows:

When the act of the defendant is a continuing injury, its continuance after the date of the first action is a new cause of action for which the second action can be brought, and so from time to time until the injury is discontinued. An injury is said to be a continuing one so long as it is still in the course of being committed and is not wholly passed. …

[186] The Ontario Court of Appeal in an endorsement dated May 6, 2004, in the case of Striesfield v. Goodman (Docket: C37669), stated at paragraph 12:

[12] Second, on the question of the expiry of the limitation, this affirmative defence was never even pleaded. It is well established that a limitation period must be raised as an affirmative defence at the pleading stage: see rule 25.07(4). … Again, we are not prepared to give effect of this argument for the first time on appeal.

[187] Therefore, I find that Sandal cannot raise the limitation defence at this stage in the proceedings and even if he could, since the contamination continues to flow onto the MTD property day by day, I would rely on the Roberts v. Portage la Prairie case.

SUMMARY

[188] Based on all of the evidence and the above findings:

1. I declare that the defendants are responsible for the contamination of the subject properties of the plaintiff which shall be set out in detail in my order attached as a schedule to this judgment.

2. I declare that the defendants are bound by law to indemnify the plaintiff for all legal, investigatory, remedial and preventative measures set out more specifically in my order attached as a schedule to this judgment.

3. The defendants shall remediate the lands it owns at 70-74 Borden Ave. S. in accordance with the schedule and timetable set out in my order attached as a schedule to this judgment.

4. In the event that the defendants do not comply with the ordered schedule and timetable to remediate the lands of 70-74 Borden Ave. the plaintiffs may apply to the court for an order for further damages in the amount of $2,800,000 on two weeks notice to the defendants as set out my order attached as a schedule to this judgment

5. This judgment shall bind the successors in title, including lessees, mortgagees and anyone claiming an interest in 70-74 Borden Ave.

6. The plaintiff may apply to register my judgment on the title of 70-74 Borden Ave.

7. I find the defendants are liable for damages caused to the plaintiff in nuisance, negligence and trespass, and set those damages at $1,809,908.80.

8. I find that the defendants are jointly and severally liable for the damages caused to the plaintiff.

[189] If the parties have any concerns about the wording of this judgment or the attached draft order, they may make an appointment with me through the trial coordinator’s office on or before May 25, 2022.

James W. Sloan

Released: May 17, 2022

Schedule 1

COURT FILE NO.: CV-15-852

DATE: 2022/04/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MTD Products Limited

Plaintiff

– and –

1361821 Ontario Inc. and Marko Sandal also known as Marko Sandalj

Defendants

Sherry A. Kettle - Counsel for the Applicant

Self Represented

HEARD: April 19, 20, 21, 22, 25, 26, 27, 28, 2022

The Honourable Justice James W. Sloan

amended judgment

[1] On the consent of the parties the title of proceeding shall be amended such that the defendants are described as “1361821 Ontario Inc. and Marko Sandal also known as Marko Sandalj”. This amendment includes changes to the title of proceedings and back page of Schedule A, the back page of the April 29, 2022, Judgment and the addition of this paragraph.

[2] During submissions it became apparent to the court, that to a great extent, the defendants were in agreement with paragraph 4 of the draft judgment being requested by the defendants and marked as Ex. “E”.

[3] Whether the defendants were in agreement or not, is irrelevant. Based on all of the evidence the court finds favour of the plaintiff and a judgment shall issue in accordance with Schedule 1 of this judgment which was Ex. “E” at the trial.

[4] Written reasons for my judgment will follow in due course.

[5] For the purpose of calculating the time limits set out in my judgment, the starting date shall be April 29, 2022.

[6] If the parties are unable to agree on costs, Ms. Kettle shall forward her brief submissions on costs to me by May 6, 2022. Mr. Sandal shall forward his brief response to me by May 11, 2022. Ms. Kettle shall then forward his reply, if any, to me by May 13, 2022. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca. Cost submissions, excluding bills of costs shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.

James W. Sloan

Released: April 29, 2022

SCHEDULE “1”

Court File No.: CV-15-852

ONTARIO SUPERIOR COURT OF JUSTICE

THE HONOURABLE

JUSTICE SLOAN

_______________, THE ____

DAY OF ___________, 2022

BETWEEN:

MTD PRODUCTS LIMITED

Plaintiff

• and -

1361821 ONTARIO INC. and MARKO SANDAL also known as MARKO SANDALJ also known as MARKO SANDALJ

Defendants

JUDGMENT

THIS ACTION was heard from April 19, 2022 to April 22, 2022 and from April 25, 2022 to April 27, 2022 without a jury at 85 Frederick Street, Kitchener with the lawyers for the plaintiff in attendance and with Marko Sandal in attendance on behalf of the defendants.

ON READING THE PLEADINGS AND HEARING THE EVIDENCE and the submissions of the lawyers for the plaintiff and the submissions of Marko Sandal on behalf of himself,

1. THIS COURT ORDERS that the title of proceedings shall be amended to add “also known as Marko Sandalj” after Marko Sandal.

2. THIS COURT DECLARES that the defendants, 1361821 Ontario Inc. and Marko Sandal also known as Marko Sandalj, are responsible for the contamination on the following properties, as described below:

a. benzene at monitoring well number 37 and vinyl chloride at monitoring well 403-11 at 61-97 Kent Avenue, Kitchener and legally described as Lt 410-414, 428-446 Pl 262 Kitchener; Lt 5 Streets and Lanes, Kitchener; Pt Lt 4 Streets and Lanes, Kitchener as in 386445; Pt Lt 415-427 Pl 262 Kitchener; Pt Lt 6 Streets and Lanes, Kitchener as in 454978 except easement therein and except Pt 2, 3, 4 WDR334; s/t interest in 386445; s/t 475282, Kitchener (PIN 22506-0021 (LT)) and Lt 447-456, 466-475 Pl 262 Kitchener; Pt Lt 171 Streets & Lanes Kitchener; Pt Lt 3 Streets & Lanes Kitchener; Pt Lt 4 Streets & Lanes Kitchener, Pt 1, 2 & 6 58R11779; s/t 800093 t/w 800093 except easement therein Re: Pt 3 58R4322 s/t 846646, Kitchener (PIN 22506-0018 (LT));

b. cVOCs on 94 Borden Avenue South, Kitchener and legally described as Pt Lt 458-465, Pl 262, Kitchener; Pt Lt 4 Streets and Lanes Kitchener as in 577653 s/t 577653 t/w 577653 except easement therein (firstly described), Kitchener; and

c. cVOCs on the west side of 60 Ottawa Street South, Kitchener and legally described as Pt Lt 486 Pl 262 Kitchener Pt 1, 2 and 4, 58R11787; s/t reservations of mines and minerals as in 1035680; s/t 1316843E, 677412E, 721796; t/w ease over Pt Parklot 24, Pl 404 being Pt 3 on 58R11787 as in WR343090, s/t easement over Pt 2 on 58R-11787 as in A35181; s/t easement over Pt 2 on 58R-11787 as in A104251 (PIN 22506-0107 (LT)).

3. THIS COURT DECLARES that the defendants are bound by law to indemnify the plaintiff:

a. for all legal, investigatory, remedial, preventative measures and similar costs that the plaintiff has incurred, and may in the future incur, in consequence of the contamination by the defendants of the MTD Lands, including the groundwater and all adjacent and downgradient lands;

b. in respect of all orders, fines, directives, charges and requirements of governmental authorities hereafter imposed upon, or to which the plaintiff may be subject, in consequence of the contamination of the MTD Lands by the defendants, including the groundwater and downgradient lands; and

c. for any loss or damage the plaintiff may suffer in consequence of any future claims by any and all persons at common law or under applicable laws attributable to the actions or omissions of the defendants.

4. THIS COURT ORDERS that the defendants shall remediate the lands at 70-74 Borden Avenue South, Kitchener and legally described as Lot 457, 476-485, Plan 262, Kitchener, Part Lot 458-465 Plan 262, Kitchener, Part Lots 3, 4, 171 Streets and Lanes, Kitchener, Part 1 and 3, 58R4150 subject to 772361 together with 772361; subject to 1569744 and 338999E, Kitchener (PIN 22506-0019 (LT)) (the “70-74 Borden Property”) by completing the following:

(a) on or before six months from the date of this judgment, the defendants shall retain an environmental consultant designated a Qualified Person under Regulation 153/04 (“Qualified Person”) and the Qualified Person shall prepare and provide a report to MTD on the progress to date;

(b) on or before one year from the date of this judgment, retain an environmental consultant designated a Qualified Person shall:

(i) investigate the 70-74 Borden Property and delineate the extent of volatile organic compounds (VOCs) horizontally and vertically in soil and groundwater;

(ii) prepare a written remedial action plan, to be delivered to the plaintiff, MTD Products Limited (“MTD”), for review and acceptance by MTD, of a strategy to complete source zone removal in soil to a suitable depth with confirmatory sampling to illustrate its effectiveness and to carryout groundwater dewatering before and during the source zone excavation and to document the required permits and approvals necessary to complete the work (the “Work Plan”);

(c) on or before two years from the date of this judgment, commence the Work Plan;

(d) on or before four years from the date of this judgment, carry out and complete all of the work identified in the Work Plan, as approved by MTD, and deliver a written report signed by a Qualified Person to MTD setting out the results, findings and conclusions of the remedial work completed;

(e) on or before six years from the date of this judgment, obtain a Record of Site Condition acknowledged by the Ministry of Environment, Conservation and Parks (“MECP”) and filed on the relevant electronic registry.

5. THIS COURT ORDERS that the within Judgment binds successors in title, including lessees and mortgagees and anyone claiming an interest in the 70-74 Borden Property.

6. THIS COURT ORDERS that the plaintiff may:

(a) apply to register this Judgment on title to the 70-74 Borden Property and the Land Registry Office for the Land Titles Division of Waterloo (LRO #58) is hereby directed to complete that registration on title to the 70-74 Borden Property;

(b) the registration of this Judgment on title to the 70-74 Borden Property shall bind all successors in title, including lessees and mortgagees, of the 70-74 Borden Property until such time as (i) a subsequent court order is made to delete the registration or (ii) the plaintiff and defendants both consent to the deletion of the registration.

7. THIS COURT ORDERS that an additional Judgment in the form attached as Schedule “A” hereto will issue upon the filing by MTD with the Superior Court of Justice of a motion record including an Affidavit, which shall be served on two-weeks notice to the defendants served by email to markosandal@hotmail.com, confirming that the defendants did not complete any one or more of the steps in paragraph 4 herein by the deadlines set out therein, unless the court orders otherwise.

8. THIS COURT ORDERS that the defendants shall pay costs to the plaintiff in the amount of $_________, including tax.

9. THIS COURT ORDERS that the defendants shall pay damages to the plaintiff in the sum of $1,809,908.80.

THIS JUDGMENT BEARS INTEREST at the rate of ______ percent per year commencing on ___________________________.

Justice, Superior Court of Justice

SCHEDULE “A”

Court File No.: CV-15-852

ONTARIO SUPERIOR COURT OF JUSTICE

THE HONOURABLE

JUSTICE SLOAN

_______________, THE ____

DAY OF ___________, 2022

BETWEEN:

MTD PRODUCTS LIMITED

Plaintiff

• and -

1361821 ONTARIO INC. and MARKO SANDAL also known as MARKO SANDALJ

Defendant

JUDGMENT

THIS ACTION was heard from April 19, 2022 to April 22, 2022 and from April 25, 2022 to April 27, 2022 without a jury at 85 Frederick Street, Kitchener with the lawyers for the plaintiff in attendance and with Marko Sandal in attendance on behalf of the defendants.

ON READING THE PLEADINGS AND HEARING THE EVIDENCE and the submissions of the lawyers for the plaintiff and the submissions of Marko Sandal on behalf of himself,

1. THIS COURT ORDERS that, in addition to damages set out in my Judgment of the same date herein, the defendants shall pay damages to the plaintiff in the sum of $2,800,000.00.

THIS JUDGMENT BEARS INTEREST at the rate of ______ percent per year commencing on ___________________________.

Justice, Superior Court of Justice

MTD PRODUCTS LIMITED

Plaintiff

and

1361821 ONTARIO INC. and MARKO SANDAL also known as MARKO SANDALJ

Defendants

Court File No.: CV-15-852

ONTARIO SUPERIOR COURT OF JUSTICE

Proceeding commenced at KITCHENER

JUDGMENT

MILLER THOMSON llp One London Place 255 Queens Avenue, Suite 2010 London, ON Canada N6A 5R8

Sherry A. Kettle LSO#: 53561B Tel: 519.931.3534 E-mail: skettle@millerthomson.com Lawyers for the plaintiff, MTD Products Limited

MTD PRODUCTS LIMITED

Plaintiff

and

1361821 ONTARIO INC. and MARKO SANDAL also known as MARKO SANDALJ

Defendants

Court File No.: CV-15-852

ONTARIO SUPERIOR COURT OF JUSTICE

Proceeding commenced at KITCHENER

amended JUDGMENT

COURT FILE NO.: CV-15-852

DATE: 2022-05-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MTD Products Limited

Plaintiff

– and –

1361821 Ontario Inc. and

Marko Sandal also known as Marko Sandalj

Defendants

REASONS FOR JUDGMENT

James W. Sloan

Released: May 17, 2022