This decision of the Ontario Court of Appeal provides clarity on
the liability of industrial polluters for airborne contamination of
neighbouring properties and will likely have significant impact on
future environmental litigation. The causes of action alleged in
this case involved private nuisance and a cause of action founded
on the rule in Rylands v. Fletcher, a seminal decision of
the House of Lords, which enables a finding of strict liability for
damage caused to one property, by the "escape" from
another property of a substance "likely to cause
mischief," in circumstances where there has been a
"non-natural" use of the land.
Inco Limited (Inco) operated a nickel refinery in Port Colborne,
ON from 1918 to 1984. During that time, waste product was emitted
into the air from a 500-foot smoke stack, mostly in the form of
nickel oxide. Nickel oxide was subsequently found in the soil of
neighbouring residential properties. Beginning in 2000, 16 years
after the refinery had closed; concerns about the level of nickel
in the soil began to surface and caused widespread public concern
and controversy. A class of approximately 7,000 neighbouring
property owners contended, and the trial judge agreed, that the
public concern had resulted in their property values not increasing
at the same rate as comparable properties. The trial judge awarded
$36 million in damages after holding Inco liable in both private
nuisance and under the rule in Rylands v. Fletcher.
A unanimous Court of Appeal allowed Inco's appeal and set
aside the trial judgement, determining that the claimants had
failed to establish Inco's liability under either private
nuisance or the rule in Rylands v. Fletcher, and in any
event, the claimants had suffered no loss.
The Court of Appeal determined that a chemical change in the
content of soil, without more, does not amount to physical damage
to property as alleged by the claimants. To succeed in their
nuisance claim, the claimants were required to show either that
nickel at any level posed a risk, or that the nickel levels present
were above the levels at which there was a risk to human health and
wellbeing. The evidence had failed to establish either point. With
respect to the rule in Rylands v. Fletcher, the Court of
Appeal found that Inco's operation of the refinery was not a
"non-natural" use of its property. Inco operated the
refinery in an industrial part of the city and did not create any
risks beyond what would be expected of an industrial operation.
Although compliance with environmental and zoning regulations is
not a defence to a Rylands v. Fletcher claim, the Court of
Appeal clarified that it is an important consideration to be taken
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).