How damages are assessed in the environmental law context has
been a bit of "moving target" over the last decade but
there are a few key principles that emerge when you take a closer
look at the case law.
Standard of Clean Up
Tridan Developments Ltd. v. Shell Canada Products Ltd., 2002
CanLII 20789 (ON CA) is an earlier case that considers a property
owner's entitlement to remediation damages after its property
became contaminated by a neighbouring site. This case establishes
that a plaintiff's entitlement to recover will depend on the
facts of each case and asserts that there is no automatic right to
have one's property cleaned up to a pristine condition
In Cousins v. McColl-Frontenac Inc. 2006 NBQB 25, the New
Brunswick Queen's Bench appears to scale back a plaintiff's
right to damages for contamination migrating onto its land when the
plaintiff was aware of the risks before purchase. Further, the
court refused to award damages for a lost development opportunity
based on a purely speculative approach to what could have been done
with the plaintiff's land but for the contamination.
Material Physical Damage
In Smith v. Inco 2011 ONCA 628 the Ontario Court of Appeal held
that a plaintiff must establish that contamination causes material
physical damage to the property before damages can be recovered;
mere chemical alteration is not enough. The plaintiff did not argue
that the the properties at issue were rendered less useful as a
result of Inco's nickel deposits, nor was there any evidence of
risk to human health. As a result of this decision, defendants now
argue that plaintiffs must establish "material physical
damage" to be entitled to damages.
Pre-Purchase Due Diligence
The importance of purchasers performing due diligence prior to
purchasing land was reiterated this year in Midwest v. Thordarson,
2013 ONSC 775. The plaintiff in this case sued for damages because
the property it purchased was contaminated by an off-site source.
The contamination existed at the time of purchase and there was no
evidence that the contamination had continued to migrate and/or
worsened since that time. Practically speaking, purchasers should
consider conducting baseline intrusive testing upon purchase to
make it easier to establish subsequent contamination claims, not
just because of an on-site source, but also because of off-site
There are several other risks that could prevent the plaintiff
from recovering damages for contamination in the environmental case
law. For example, the contamination may be patent or it may not
render the property unfit for use. Additionally, the consultant
tasked with testing for contamination may not have been negligent
and, therefore, is not liable. Finally, it can be difficult to
prove causation because there are multiple defendants or because
the plaintiff cannot locate the defendant. These risks make it
important to obtain good technical and legal advice before
purchasing land and especially in industrial areas where the risk
of contamination may be higher.
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.
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