When your land is contaminated by a neighbour, proving that it
happened may not always be enough. In Midwest v. Thordarson, 2013
ONSC 775 the plaintiff Midwest Properties Ltd.
("Midwest") purchased a property after obtaining a Phase
I Environmental Assessment. Midwest never tested the property's
soil before purchasing it. However, when it later found out that it
was contaminated, Midwest brought an action against Thorco
Contracting Limited and John Thordarson (the owner of the adjacent
property and its principal) (the "Defendants") for
breaching the Environmental Protection Act (the "EPA")
and for nuisance and negligence.
The Defendants used their property as a storage site for
petroleum hydrocarbon waste since 1973 but argued at trial that the
contamination on Midwest's property was not theirs. Pollak J.
did not accept the Defendants' argument that someone else
caused the contamination on Midwest's property. With respect to
the EPA claim against the Defendants, the Court found that since
the Defendants were already being ordered to clean up pursuant to a
Ministry of the Environment order under the EPA, Midwest was not
entitled to also obtain damages for its own proposed remediation
plan under section 99 of the EPA. Midwest was clearly
"double-dipping" in this case by claiming the cost of a
remediation plan when the Defendants had already been ordered to
spend money to remediate. Further, it did not help that Midwest
failed to introduce evidence of damages or losses arising from the
Defendants' contamination of its property.
This was also Midwest's downfall with respect to its
negligence claim. The Court's most interesting finding
concerned Midwest's claim that the Defendants'
contamination was a nuisance. The Court held that Midwest could not
be successful in this case because it could not show that the
Defendants' nuisance had occurred on the property after Midwest
purchased it. To be successful in its nuisance claim, Midwest had
to establish that the contamination had started or increased after
it purchased the property. If the Defendants' nuisance damage
was already done when Midwest took title, Midwest could not
successfully claim against them for it later.
While some of the findings in Midwest clearly turned on the lack
of evidence adduced by the plaintiff, the case also appears to
underline the importance of establishing baseline conditions where
nuisance is being alleged in the context of historical conditions.
The means of establishing a baseline are generally more readily
available in non-residential transactions.
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.
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...
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