Environmental Law - SCJ

The appellant, J. Michael Evans, appealed the refusal of building and septic permits for Harry Island in the Township of Muskoka Lakes.

The court found that Evans failed to establish a legal nonconforming residential use of the boathouse on Harry Island, as there was no evidence of actual residential use or intention to continue such use since the 1920s or 1930s.

The court also held that the chief building official did not have discretion under the zoning bylaw to deem the undersized island to conform.

However, the court allowed the appeal regarding the septic permit, finding that compliance with the Building Code superseded the municipal bylaw’s setback requirement.

The applicant, Gaetano Di Blasi, sought a declaration that his property in Aurora, Ontario, was protected as an existing non-conforming use, allowing him to continue using it for outdoor storage of vehicles, machinery, equipment, business operations, storage of heavy trucks, and trailers.

The Town of Aurora opposed all uses except residential.

The court reviewed the history of zoning, prior proceedings, and the legal test for non-conforming use, ultimately finding that the relevant date for establishing legal non-conforming use was September 8, 1970, and that the applicant failed to prove the claimed uses were legal and continuous from that date.

The application was dismissed, and costs awarded to the Town.

The applicants sought judicial review, including mandamus, prohibition, certiorari, and s. 24(1) Charter relief, of a Justice of the Peace's decision.

The Justice of the Peace had dismissed their s. 11(b) Charter application for unreasonable delay and deferred an abuse of process application in a provincial offences proceeding concerning alleged damage to Massasauga snake habitat.

The Superior Court dismissed the applicants' request for extraordinary relief, finding that the Justice of the Peace did not exceed or decline jurisdiction.

The court held that the issues raised were not appropriate for interlocutory intervention by a superior court, emphasizing that such matters are generally best addressed on appeal after the trial has concluded.

The Alliance to Protect Prince Edward County (APPEC) sought a declaration that a Feed-In-Tariff (FIT) Contract between the Independent Electricity System Operator (IESO) and WPD White Pines Wind Incorporated (White Pines) was null and void, arguing White Pines failed to meet contractual capacity requirements.

APPEC also raised issues of legitimate expectations and negligent misrepresentation by IESO.

The court dismissed APPEC's application, finding that the doctrine of legitimate expectations did not apply as it creates procedural, not substantive, rights, and APPEC was not a party to the contract.

Furthermore, no special relationship existed to support a claim of negligent misrepresentation, and IESO and White Pines properly amended their contract in accordance with the FIT Rules and the Environmental Review Tribunal's decision.

The court addressed three post-trial motions: a set-off dispute under a Pierringer agreement, the plaintiff's motion to vary judgment to include a common law negligence claim for an environmental order, and the defendant Thompson Fuels' motion to vary judgment based on alleged errors.

The court ruled that set-off from the Pierringer agreement would only apply if the settlement exceeded the plaintiff's total loss (100% of damages caused by defendants, not just the non-settling defendant's apportioned share).

Both Rule 59.06(1) motions were dismissed, as they sought to re-argue the case or correct judicial reasoning rather than accidental slips or omissions.

This application sought the appointment of a receiver over the surface rights of the Kerr-Addison Mine, which had been inactive for 20 years.

The applicant, Gold Candle Ltd., had acquired the mining rights and aimed to recommence operations.

The respondents opposed, alleging the applicant was frustrating negotiations.

The court, exercising its discretion under s. 101 of the Courts of Justice Act, balanced the parties' rights and considered the significant public interest factors, including health and safety hazards, severe local economic impact, unpaid municipal taxes, and unaddressed creditor claims.

Finding it just and convenient, the court granted the application, appointing A. Farber & Partners Inc. as receiver to conduct a court-supervised sale of the Mine, anticipating remediation, economic revitalization, and debt repayment.

The plaintiffs, owners of a long-standing apple farm and retail market, sought an interlocutory injunction to prevent the defendants from constructing berms on lands adjacent to a nearby landfill.

They argued the berms would eliminate buffer lands, violate environmental approvals, and cause nuisance by creating stigma that would harm their retail business.

The court applied the test for interlocutory injunctions from RJR MacDonald Inc. v. Canada (Attorney General) and found that while there was a serious issue to be tried, primarily in nuisance, the plaintiffs failed to establish irreparable harm.

Evidence showed the market had achieved record sales after initial berm construction and any potential losses could be compensated by damages.

The balance of convenience also favoured the defendants due to delay in bringing the motion and the impact an injunction would have on the defendants’ construction plans.

During a negligence trial concerning alleged diesel fuel contamination of lands belonging to a First Nation, the defendants brought a mid‑trial motion seeking to disqualify the plaintiff’s proposed expert geoscientist.

The defendants argued the expert report failed to comply with Rule 53.03 of the Rules of Civil Procedure because it was not prepared for the litigation and did not clearly set out the issues, opinions, and bases for those opinions.

The court held that the report was only minimally compliant with Rule 53.03 and did not sufficiently identify the substance of the proposed expert testimony, thereby prejudicing the defendants’ ability to prepare for trial.

However, completely barring the witness from testifying would be too harsh.

The court granted leave for the witness to testify as a fact witness, subject to strict limits on use of the report and possible supplementation.

Neighbouring landowners brought actions seeking damages and injunctive relief arising from a proposed wind turbine development, alleging negligence, nuisance, trespass, and strict liability based on anticipated noise, health impacts, and property value loss.

The defendants moved for summary judgment dismissing the claims on the basis that the project had not yet received regulatory approval and had not been constructed.

The court held that the claims were premature because the alleged harms were speculative and no actionable tort had yet occurred.

Pure economic loss arising from public concern about a proposed development was not compensable absent proof of tortious conduct.

The plaintiffs also failed to meet the threshold for a quia timet injunction because there was no high probability that the alleged harms would occur given the ongoing regulatory approval process.

The applicant sought to quash a municipal by-law imposing a two‑kilometre setback for industrial wind turbines from any “property” as defined in the by-law.

The court held that the definition of “property,” which included property lines, vacant land, structures, and inhabitants “of all species,” rendered the by-law unintelligible and incapable of consistent interpretation.

Because the measuring point for the setback requirement was unclear, developers could not determine where turbines could legally be located.

The by-law was therefore invalid for vagueness and uncertainty.

The court further observed that, even if valid, the by-law could become inoperative where it conflicted with provincial renewable energy legislation and regulations.

During CCAA proceedings involving an aerospace manufacturer, former directors and officers sought an interlocutory injunction restraining the provincial environmental regulator from issuing a Director’s Order under the Environmental Protection Act pending determination of a related motion concerning adjudicative procedures for claims in the CCAA process.

The moving party argued that a “status quo” exception permitted injunctive relief against the Crown to preserve the court’s process.

The court held that the Proceedings Against the Crown Act generally bars injunctions against the Crown and that the asserted status quo exception did not apply because there was no government wrongdoing and the Environmental Protection Act provides a complete statutory scheme for issuing and appealing environmental orders.

The court further held that the moving party failed to meet the RJR‑Macdonald test, including establishing a serious issue to be tried or irreparable harm.

The motion was dismissed.

The applicant sought an order compelling a cottage owners association to modify a trail on Crown land that had been improved pursuant to work permits issued by the provincial natural resources ministry.

The applicant alleged that the association had effectively constructed an unauthorized road rather than improving an existing trail, threatening the semi-closed status of a remote lake and potential vehicle access.

The court held that the appropriate remedy would have been judicial review of the ministry’s permitting decisions rather than an equitable order against the association.

The evidence demonstrated the association complied with the permits and that the trail was restricted to ATVs and snowmobiles, with no evidence of use by cars or trucks.

The application was therefore dismissed.

Following the dismissal of an environmental class action on appeal, the successful defendant sought costs for the period from certification to the trial decision, payable from the Class Proceedings Fund administered by the Law Foundation of Ontario.

The court held that the defendant was prima facie entitled to costs on a partial indemnity basis under the general rule that costs follow the event.

However, under s.31(1) of the Class Proceedings Act, the court considered that the proceeding raised novel legal issues concerning environmental mass torts and class proceedings and involved significant public interest, including access to justice and environmental concerns.

Balancing these factors with the defendant’s entitlement to compensation for substantial litigation expenses, the court reduced the costs award.

The defendant was awarded 50% of the otherwise assessed costs, payable from the Fund.

In a class proceeding costs dispute following the dismissal of environmental contamination claims, the defendant brought a motion to strike portions of affidavits filed by a third-party fund administrator opposing payment of costs from the Class Proceedings Fund.

The challenged affidavits contained opinion evidence from non‑expert witnesses asserting that the litigation raised issues of public interest.

The court applied the principles governing admissibility of lay opinion evidence from R. v. Graat, distinguishing between admissible opinion grounded in factual observations and inadmissible speculation or legal opinion.

While the court permitted most of the opinion evidence as permissible lay opinion supporting observations about the public interest and access to justice, it struck limited portions that lacked factual foundation or amounted to speculation.

In CCAA restructuring proceedings, the applicants sought approval of an asset sale transaction and related vesting order.

The provincial environmental regulator opposed the transaction and argued that a pre‑filing environmental remediation order was regulatory in nature and not subject to the CCAA stay.

The court held that where an insolvent debtor with no ongoing operations would necessarily incur financial obligations to comply with the environmental order, the order effectively enforced a payment obligation and was therefore stayed.

The court further held that the regulator could file a claim for remediation costs but could not use regulatory orders to create a super‑priority inconsistent with the CCAA priority scheme.

The proposed asset sale was approved as the result of a comprehensive marketing process and in the best interests of stakeholders.

A municipality sought a permanent injunction restraining landowners from depositing large quantities of fill on property located on the Oak Ridges Moraine.

The respondents argued the dumping of approximately 300,000 cubic metres of fill constituted a normal farm practice intended to improve agricultural land and therefore was protected from municipal bylaw restrictions under provincial legislation.

The court held that the scale of the fill operation constituted a prohibited site alteration under the Oak Ridges Moraine Conservation Plan and did not qualify as a normal farm practice.

The respondents had also ignored multiple municipal orders and a prior agreement restricting fill placement.

A permanent injunction was granted restraining further site alteration except as permitted under the building permit and applicable bylaws.

Two related applications addressed whether a commercial general liability insurer owed a duty to defend or indemnify its insured gas station operators for environmental contamination claims brought by a landlord.

The landlord sought a declaration requiring the insurer to indemnify the tenants, while the insurer sought a declaration that its policy provided no coverage.

The court held that the landlord, as a stranger to the insurance contract, could not pursue indemnification before obtaining judgment against the insured under s. 132 of the Insurance Act.

Interpreting the policy wording and pollution exclusion clauses, the court found the claim fell squarely within the policy’s pollution exclusions.

The insurer therefore had no duty to defend or indemnify the tenants in the underlying environmental contamination action.

The plaintiff municipality sought to recover environmental remediation costs following a residential furnace oil spill that migrated onto public lands and into a lake.

Several defendants, including an insurer, insurance adjuster, and environmental remediation contractor, brought summary judgment motions to dismiss statutory and negligence claims against them under the Environmental Protection Act.

The court held that none of the moving parties were “owners of the pollutant” or persons “having control of the pollutant” within the meaning of the statute and dismissed the statutory claims.

However, the court declined to summarily dismiss the negligence claims, finding that the potential duty of care owed by an insurer, adjuster, or remediation contractor to an adjoining landowner presented a novel question requiring a full Anns analysis at trial.

Amendments to the statement of claim were also permitted as they arose from the same factual matrix and did not introduce a new cause of action.

In CCAA proceedings involving a large telecommunications company, the applicants sought authorization to cease environmental remediation work at several contaminated sites and to have regulatory remediation orders treated as claims within the insolvency process.

The provincial environmental regulator argued that its orders imposed regulatory performance obligations rather than monetary claims and therefore should not be stayed by the insolvency proceedings.

The court held that where a debtor is no longer operating and compliance with regulatory orders necessarily requires the expenditure of funds, such orders are in substance financial obligations.

The court concluded that environmental remediation orders relating to pre‑filing contamination constituted claims subject to the CCAA claims process and were stayed by the existing stay of proceedings.

The applicants were authorized to cease remediation activities and environmental claims were directed to be resolved through the established claims procedure.

A mining company sought indemnification from the federal government for environmental remediation costs associated with uranium tailings produced under Cold War-era fixed-price uranium supply contracts with a Crown corporation.

The plaintiff argued that the contracts contained an implied term guaranteeing profitability or requiring indemnification if later government regulation increased production costs, and alternatively alleged breach of a duty of good faith and unjust enrichment.

The government moved for summary judgment dismissing the action, while the plaintiff brought a cross-motion for partial summary judgment.

The court held that the proposed implied term was inconsistent with the express fixed‑price structure of the contracts and failed the necessity test for implying contractual terms.

It further held that the doctrine of good faith could not be used to create new obligations inconsistent with the contract, and that the government's enactment of environmental legislation did not constitute contractual bad faith.