Environmental Law - SCJ

A farmer and investor (plaintiff) and a younger farmer with access to dairy quota (defendant) entered into an oral agreement to purchase a farm and operate a dairy business together.

The plaintiff provided financing while the defendant contributed dairy quota.

The business failed after less than two years of operation.

The plaintiff sought a beneficial interest in the proceeds from the sale of the dairy quota (held in trust), reimbursement for cattle, custom work, and forage contributions, and damages for breach of contract and misrepresentation.

The court found that while an oral agreement existed, the defendant did not breach its terms, made no actionable misrepresentations, and failed to prove damages.

However, the court found that the plaintiff had a purchase money resulting trust interest in the quota proceeds in the amount of $560,000 (representing his contribution to the quota purchase).

The plaintiff's other claims were dismissed, and the counterclaim was dismissed.

The appellant, Tek Holdings Limited, appealed an Order to Comply issued by the Chief Building Official requiring construction of a covered manure storage facility for a broiler chicken barn.

The appellant had initially obtained a building permit for an uncovered manure storage but was required to obtain a minor variance after a planning department error regarding Minimum Distance Separation (MDS) setbacks was discovered.

The Committee of Adjustment granted the variance on condition that the manure storage be covered.

The appellant subsequently constructed the facility with an uncovered manure storage, contrary to the revised permit.

The court dismissed the appeal, finding that the Order to Comply was reasonable and within the Chief Building Official's authority under the Building Code Act, 1992.

Hydro One Networks Inc. applied for orders to adjust the dates of possession in Notices of Possession under the Expropriations Act, to allow the application to proceed in the absence of a representative of the estate of James Thomas Witzell, and to dispense with service on the estate of Witzell and Susan Carol Boyes.

The application concerned the Waasigan Transmission Line Project, a 360 km electricity transmission line project in Northwestern Ontario.

Hydro One sought to abbreviate the notice period by 32 days to allow construction to begin on schedule.

The court granted the relief sought, finding that adjustment was in the public interest and that no prejudice to landowners was demonstrated.

The court considered whether the removal of an underground storage tank by the plaintiff, Fleetway Fuels Inc., was a “voluntary removal” under Endorsement No. 10 of an insurance policy issued by Liberty Mutual Insurance Company.

The court found that the removal was voluntary, as it was undertaken as a result of a contractual obligation in a commercial lease, not due to compulsion by law or governmental order.

The exclusion in the policy therefore applied, and the insurer was not required to indemnify the plaintiff for environmental cleanup costs discovered during the removal.

The court granted summary judgment dismissing Canadian National Railway Company's claims relating to coal tar contamination as an abuse of process, since those claims had already been dismissed in 2014 due to inordinate delay and failure to preserve evidence.

The court found that the same fairness concerns that prevented a fair trial in 2014 persisted.

However, the court allowed CN's claims regarding benzene contamination to proceed, finding that these claims did not crystallize until 2014 and were not part of the earlier action.

The decision clarifies the application of res judicata and abuse of process in the context of environmental contamination and continuing torts.

This is a costs endorsement following a decision where solar energy suppliers (the "Suppliers") successfully argued that their "Optimizations" did not constitute "Contract Facility Amendments" under their Feed-in-Tariff (FIT) contracts with the Independent Electricity System Operator (IESO).

The Suppliers sought approximately $2 million in partial indemnity costs, while the IESO proposed around $817,000.

The court, applying Rule 57 factors, found the issues complex and high-stakes for both parties.

Despite the Suppliers' higher learning curve and efficient litigation, the court deemed their claimed hours disproportionate.

The court fixed the aggregate partial indemnity legal fees at $1 million, plus disbursements of $270,000 (less specific deductions), finding this amount fair, reasonable, and proportionate given all circumstances.

The plaintiffs brought a motion under Rule 32.01 of the Rules of Civil Procedure seeking an order to permit their consultant to conduct a Phase Two Environmental Site Assessment of a property.

The plaintiffs argued the assessment was necessary to determine if the property was contaminated, which was relevant to their claims of misrepresentation by the defendants regarding the property's environmental status and to the remedies sought (specific performance with abatement or return of deposit).

The defendants opposed, arguing the plaintiffs had waived an environmental condition in the agreement of purchase and sale and that the motion was delayed and an abuse of process.

The court granted the plaintiffs' motion, finding the inspection necessary and probative for the trier of fact, noting no prejudice to the defendants, and deeming the delay not unreasonable.

The court also provided directions for the parties to agree on a timetable for the inspection, mediation, and trial, and on the terms of the inspection.

The applicants initiated a proceeding by application seeking declarations and substantial damages related to an anaerobic digester, and subsequently moved to add a party and for injunctive relief to prevent the digester's reactivation.

The court found the application procedurally inappropriate and outside its jurisdiction under the Rules of Civil Procedure, particularly due to the presence of material facts in dispute and the complex nature of the claims (nuisance and negligence).

Consequently, the court converted the application into an action, directing the applicants to file a Statement of Claim, and denied the immediate injunctive relief on the basis that it was not available in an improperly commenced application.

In this consolidated action, George W. Drummond Limited sought judgment against 595831 Ontario Inc. for soil remediation work. 595831 Ontario Inc. denied an enforceable contract and claimed indemnity from its geotechnical engineer, Paterson Group Inc., alleging negligence.

Paterson Group Inc. denied liability and counterclaimed for unpaid engineering services.

The court found an enforceable contract existed between Drummond and 595831 Ontario Inc., dismissed 595831 Ontario Inc.'s claim against Paterson Group Inc., and granted Paterson Group Inc.'s counterclaim, finding that Paterson met the standard of care.

The defendant brought a motion to compel the plaintiff to answer two refused questions during discovery and to produce environmental documents (Environmental Site Assessments and Risk Assessment Documents) related to alleged property contamination.

The defendant argued these documents were relevant to the pleaded issue of contamination in the Fresh as Amended Statement of Defence and Counterclaim.

The plaintiff argued the documents were not relevant or that sufficient documents had already been produced.

The court found the requested documents relevant to the issue of contamination and granted the defendant's motion, ordering production of the documents and re-attendance for discovery, with costs awarded to the defendant.

Procor Limited, a defendant, brought a motion for partial summary judgment seeking to dismiss the plaintiff Erectoweld Company Limited's claim against it regarding perchloroethylene (PCE) contamination on the plaintiff's land.

The plaintiff theorized the PCE originated from a massive spill on Procor's property that migrated to its land.

The court dismissed the motion, applying the "litigation as a whole" principle and the "bright line test" for partial summary judgment.

The court found that granting partial summary judgment would not resolve the core issue of the PCE's origin, would risk duplication of evidence, and could lead to inconsistent verdicts given the remaining claims against other defendants and their cross-claims against Procor.

This endorsement concerns the costs arising from successful summary judgment motions brought by Eaton Industries (Canada) Company and The Corporation of The City of London against Albert Bloom Limited (ABL).

The motions dismissed ABL's claims as statute-barred.

ABL conceded entitlement to costs but disputed the quantum, alleging duplication and excessiveness, particularly given Eaton's prior cost award in a related third-party motion.

The court found the claimed costs reasonable, noting the significance of the litigation, Eaton's efforts to avoid duplication, and ABL's failure to disclose its own costs for comparison.

The third party, Eaton Industries (Canada) Company, brought a motion for summary judgment to dismiss the third party claim of the London Transit Commission (LTC) on the basis that it was statute-barred by the Limitations Act, 2002.

The LTC's third party claim alleged environmental contamination caused by Eaton's predecessors.

The court found that the LTC had actual or ought to have had knowledge of its claim against Eaton by May 22, 2013, when it was served with the plaintiff's statement of claim, and failed to rebut the presumptive limitation period.

The court dismissed the LTC's arguments for a separate limitation period for other damages, concluding all claims were statute-barred.

The Monitor of the Canadian Debtors of Nortel Networks sought court approval for two environmental property settlement agreements concerning the Belleville and Brockville properties under the Companies’ Creditors Arrangement Act (CCAA).

These settlements aimed to resolve significant environmental liabilities, crystallize claims, and facilitate further distributions to creditors.

The court granted the motion, approving both the MECP Belleville Settlement and the Brockville Settlement, finding them fair, reasonable, beneficial to stakeholders, and consistent with the CCAA's objectives, including the provision of third-party releases.

Imperial Oil sought summary judgment against Worsley Rusholme Limited, arguing that a broad release clause in their agreement of purchase and sale precluded claims related to environmental contamination, including remigration of contaminants after closing.

Worsley contended that a subsequent Comfort Letter modified this release to allow such claims.

The court found the release provisions in the agreement to be comprehensive and unambiguous, explicitly covering post-closing remigration.

It determined that the Comfort Letter did not carve out Worsley's claim, as its wording focused on contamination outside the property boundaries and explicitly stated it did not limit liability assumption for post-closing migration onto the property.

The court granted partial summary judgment, dismissing Worsley's claim against Imperial Oil, finding no genuine issue for trial and that the partial summary judgment was appropriate given the distinct nature of the claims against Imperial Oil and the co-defendant AMEC Foster Wheeler Americas Limited.

The plaintiff brought a motion to strike out the defendants' Statement of Defence and Counterclaim, or specific parts thereof, alleging contravention of Rule 25 of the Rules of Civil Procedure by pleading evidence (especially technical opinion evidence), improper references to legal counsel, and argument.

The defendants argued their pleading contained material facts relevant to their defence and limitations.

The court found that many paragraphs contained opinion evidence, irrelevant references to legal counsel, or argument, and ordered specific paragraphs and sentences struck out with leave to amend, but declined to strike the entire pleading.

The applicant sought an interlocutory mandatory injunction to lift a Site Alteration Order issued by the respondent, which prohibited the importation of 500,000 m³ of fill for a proposed berm on its property.

The applicant argued the berm constituted landscaping and fell under an exception to the respondent's Fill Control By-law.

The court dismissed the motion, finding the applicant failed to meet the higher standard for a mandatory injunction, did not demonstrate irreparable harm (as it was the author of its own misfortune by proceeding without legal certainty), and the balance of convenience favoured the respondent due to potential environmental damage and remediation costs.

The applicant's undertaking as to damages was also deemed inadequate.

The Regional Municipality of York brought a motion to dismiss Great Land (Westwood) Inc.'s application for expropriation compensation, arguing that the Ontario Municipal Board (OMB) had exclusive jurisdiction.

Great Land sought a declaration of compensation for expropriated land and a a declaration regarding the validity of alleged contracts for nominal land dedication.

The court found that the essential character of Great Land's claim, including contractual disputes, fell within the exclusive jurisdiction of the OMB under the Expropriations Act and the Ontario Municipal Board Act.

Consequently, York's motion was granted, and Great Land's application was dismissed, with the matter directed to proceed via arbitration before the OMB.

The defendant/plaintiff Nicol moved for an order to try four actions together, or alternatively, to try two specific actions together and waive the deemed undertaking rule.

The court dismissed the primary request for joinder of all four actions, finding the issues between the property damage claims and the service provider claims distinct and that the matter was largely res judicata.

However, the court granted the alternative relief, ordering the two property damage actions (McColgan and Piccolotto) to be tried together, and the service provider actions to be severed and tried separately.

The court also waived the deemed undertaking rule.

Costs were awarded against Nicol on a substantial indemnity basis for McColgan and Piccolotto, and partial indemnity for the Service Providers, due to Nicol's unsuccessful primary motion and refusal of reasonable settlement offers.

The defendant 1623242 Ontario Inc. sought leave to bring a motion for summary judgment to dismiss construction lien actions against it, or to discharge the liens.

The plaintiff Great Lakes Copper Inc. opposed this, arguing that the issues involved disputed facts and would not substantially shorten a trial.

The court dismissed the defendant's motion for leave, finding that bifurcating the trial or granting leave for summary judgment would not be in the interests of justice due to the inter-dependence of factual and legal issues, and the novelty of the legal questions concerning environmental contamination and owner's liability under the Construction Lien Act.