Environmental Law - SCJ

The defendants (Litwacks) successfully obtained summary judgment and sought costs on a substantial indemnity basis for both the motion and the action.

The plaintiff (Sorbam Investments Ltd.) opposed the quantum and scale of costs.

The court considered the Litwacks' settlement offers, the complexity and importance of the issues, and the conduct of the parties, including the plaintiff's late submission of materials and technical objections.

While acknowledging the Litwacks' counsel's expertise, the court reduced the requested costs, particularly for out-of-town travel disbursements and excessive pre-trial time, and disallowed mediation costs.

The court fixed costs at an amount greater than partial indemnity but less than substantial indemnity, recognizing the Litwacks' settlement offers.

The applicants sought an order in the nature of certiorari to challenge a justice of the peace's ruling that a charge under the Conservation Authorities Act was not statute-barred.

The applicants argued that the two-year limitation period commenced earlier than determined by the justice, rendering the charge out of time.

The Superior Court dismissed the application, finding that the justice's ruling was made within jurisdiction and was not so obviously wrong as to warrant intervention during the ongoing trial.

The court emphasized that certiorari should be granted rarely in such circumstances, especially when an appeal is available post-trial, and that the policy considerations favour a non-interventionist approach to avoid fragmenting proceedings.

This case conference addressed multiple motions in ongoing construction lien actions.

The plaintiff sought orders for substituted service of a Summons to Witness and a remedy for the defendant's failure to deliver will-say statements.

The defendant sought production of evidence for a personal costs claim against its counsel and a determination on the preclusive effect of a prior order on costs.

The court addressed the requirements for will-say statements, clarified the scope of a previous preclusion order, and deemed the personal costs claim premature, to be addressed by the trial judge.

The plaintiffs sought leave to amend their Statement of Claim to add new parties and assert additional causes of action, including nuisance, negligence, and various Charter and international covenant claims.

The defendants opposed the amendments and brought motions to strike.

The court denied leave to add new Ministries/Ministers, dismissed claims based on international covenants as not actionable in domestic law, and rejected most Charter claims (specifically s. 7) on the basis of issue estoppel, as these issues had been previously determined by the Environmental Review Tribunal and upheld by the Divisional Court.

However, the court permitted amendments for nuisance and negligence claims against the K2 defendants, acknowledging that the alleged harms were now realized post-construction.

The action against Her Majesty the Queen in Right of Ontario and the Director was dismissed.

The plaintiffs brought a subrogated claim against W.O. Stinson & Son Ltd. for negligence following an oil tank leak in their basement.

The claim alleged Stinson was negligent in repositioning the tank and during annual maintenance, specifically regarding water dip tests, warnings about corrosion, and recognizing signs of damage.

The court found that Stinson met the standard of care required of a fuel oil service contractor and supplier, complying with TSSA regulations and industry standards.

The court also found that the plaintiffs failed to establish causation, as it could not be proven that "but for" Stinson's actions or omissions, the leak would not have occurred.

Consequently, the plaintiffs' claim was dismissed.

Damages were also assessed for completeness, with some criticisms of the remediation costs.

This addendum to reasons for decision addresses a request by the defendant, Fraser Hillary’s Limited, to present supplementary submissions concerning compensation under s. 99 of the Environmental Protection Act, citing the Court of Appeal decision in McCann v. Environmental Compensation Corp. The court declined the request, affirming the principle of finality and finding that the issue did not warrant reconsideration.

The court also clarified its prior finding that applying s. 99(2) was not retroactive and questioned the applicability of McCann to the present case.

The plaintiff property owner sued the adjacent dry cleaning business and its principal for environmental contamination caused by the migration of dry cleaning solvents (PCE/TCE) onto his lands.

The court dismissed claims in trespass, strict liability, and negligence, but found the corporate defendant liable in private nuisance and under section 99 of the Environmental Protection Act.

The individual defendant was not found liable as he did not own or control the pollutant at the time of the spills and his subsequent inaction did not cause the plaintiff's damages.

The court awarded the plaintiff $1,632,500 for remediation costs and $201,726.71 for engineering expenses.

Two cottage associations, Trout Lake Campers’ Association and The Surprise Lake Campers’ Association, sought leave to intervene in an application by Rock Solid Holdings Inc. for a declaration regarding zoning for a gravel pit.

The court dismissed the motion for leave to intervene, finding that while the associations had an interest in the subject matter and could be adversely affected, their interests were adequately represented by the Lakehead Rural Planning Board, and their intervention would unduly delay the main application.

The court emphasized the narrow scope of the main application, which concerned only the zoning bylaw and historical use.

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 plaintiff sued the defendants, adjacent property owners, for environmental contamination allegedly caused by a former dry-cleaning tenant on the defendants' lands.

The defendants moved for summary judgment to dismiss the claims of nuisance, negligence, and statutory liability under the Environmental Protection Act.

The court granted the motion, finding that the defendants had no knowledge of the contamination, did not authorize the nuisance, and owed no duty of care to monitor the tenant's activities.

The statutory claim failed because the defendants did not own or control the pollutant.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend their mutual insured in an underlying environmental contamination action.

The underlying action alleged that fuel oil migrated from the insured's property to a neighbouring property.

The respondent denied coverage based on an environmental liability exclusion clause.

The court found that the respondent had a duty to defend because the pleadings left open the possibility that the initial escape of contaminants was 'sudden and accidental', which would trigger an exception to the exclusion clause.

The court ordered the insurers to share the defence costs equally based on equitable principles.

The plaintiffs brought a motion to certify a proposed class action for settlement purposes regarding Volkswagen's installation of a 'defeat device' in certain diesel vehicles.

The court found that the requirements under s. 5(1) of the Class Proceedings Act were met, including an identifiable class and common issues.

The court also determined it had jurisdiction to certify a national class, noting the efficiency and comity of doing so.

The motion for certification, along with the approval of an unprecedentedly comprehensive notice plan, was granted.

The plaintiff brought a motion for leave to amend his Statement of Claim to add a claim for contribution and indemnity under the Environmental Protection Act, following an Environmental Review Tribunal decision reducing a municipal cleanup order against him.

The defendants opposed the motion, arguing the proposed amendments were statute-barred and untenable.

The court granted leave to amend, finding that the legal issues regarding limitation periods and statutory interpretation were novel and not plainly and obviously untenable, and that the defendants would not suffer non-compensable prejudice.

The defendant Ministry of the Environment moved to strike the plaintiff's negligence claim arising from an oil spill clean-up, arguing it owed no private law duty of care.

The court dismissed the motion, finding that once the Ministry chose to exercise its discretionary powers under the Environmental Protection Act and became involved in the remediation, it was obliged to do so without negligence.

The court held that the pleaded facts established sufficient proximity under the Anns test and that no policy reasons negated a duty of care at the pleadings stage.

The plaintiff claimed her water well was contaminated by municipal sewage waste (biosolids) applied to her neighbor's farmland, alleging nuisance and negligence.

The defendant brought a third-party claim against the farm lessee and the biosolids applicator.

The court dismissed the plaintiff's action, finding that she failed to prove, on a balance of probabilities, that the biosolids application caused the well contamination.

Crucially, no E. coli., the primary indicator of sewage contamination, was detected in any water samples, despite the presence of other bacteria commonly found in the natural environment.

The court also dismissed the third-party action.

This case concerns the interpretation of a 1985 indemnity agreement granted by the Province of Ontario to Great Lakes Forest Products Limited (now Resolute FP Canada Inc.) and its successors and assigns, regarding mercury contamination.

Weyerhaeuser Company Limited, a subsequent owner of the property, and Resolute sought indemnity from the Province for costs incurred complying with a 2011 environmental remediation order issued by the Ministry of the Environment.

The court granted summary judgment, finding that the indemnity's broad language covered statutory claims by provincial agencies and that the fettering doctrine did not apply to this business agreement.

Weyerhaeuser was also found to be able to rely on the indemnity as a successor or assignee.

The claimant sought a ruling that costs incurred in Superior Court proceedings, which were ultimately found to be without jurisdiction for assessment by a judge, should be included as part of the expropriation costs to be assessed by an assessment officer.

The respondent argued that these costs should not be awarded as the court lacked jurisdiction and the respondent was not at fault.

The court declined to make a determination on the Superior Court costs, instead referring the question of entitlement and quantum to the assessment officer conducting the expropriation costs assessment, noting that both parties shared the misapprehension of the court's jurisdiction.

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 plaintiffs brought an action against their former solicitors (Hicks Defendants) for professional negligence, alleging that the solicitors missed a limitation period for an action against previous solicitors (Arnone Defendants) concerning the purchase of contaminated land.

The Hicks Defendants admitted liability for the missed limitation period, and the trial proceeded solely to assess the plaintiffs' damages.

The court awarded damages for environmental remediation costs and a nominal amount for the inconvenience of managing the remediation, totaling $57,712.31.

However, claims for loss of property value, real estate commission on a failed sale, roof replacement costs, excess mortgage interest, and mental distress were dismissed due to lack of expert evidence, legal prohibitions (for commission), or being deemed not reasonably foreseeable consequences of the negligence.

The defendants brought a motion to dismiss the plaintiff's action for breach of a settlement agreement, invoking Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act).

The court found that the defendants' expression (testimony at an Ontario Municipal Board hearing regarding a land development's environmental impact) related to a matter of public interest, thereby satisfying the first part of the anti-SLAPP test.

However, the plaintiff successfully demonstrated that their action had substantial merit, the defendants had no valid defence, and the public interest in upholding the sanctity and finality of settlement agreements in litigation outweighed the public interest in protecting the defendants' expression.

Consequently, the motion to dismiss was denied, and each party was ordered to bear its own costs, given the novelty and merit of the anti-SLAPP motion.