On Thursday, October 22, 2015 the Ontario Court of Justice
released its decision on a motion for summary judgment in a civil
action for damages arising from environmental contamination.
InCrombie v McColl-Frontenac, 2015 ONSC
6560, Justice Wright affirmed the law of
continuing nuisance as we have understood it: that the law of
"continuing nuisance" applies to environmental claims but
only where there is actual evidence of additional damage during the
two year limitation period immediately preceding the
In a continuing nuisance claim, the plaintiff can commence an
action but can only seek damages going back two years prior to the
date of issuance of the action. The law of "continuing
nuisance" does not extend the original limitation period to
allow the plaintiff to claim for all damage and damages sustained
prior to expiry of same.
This decision begs the question about what a Court may accept as
evidence of damage and damages inside of a two-year period. In the
case of environmental contamination, the answer may very well be
multiple rounds of sampling data showing rising contaminant
concentrations during the two years prior to the issuance of the
claim. This decision on a motion for summary judgment shows that a
mere inference about possible ongoing migration in the context of
soil and groundwater contamination may not be enough.
Justice Wright in Crombie v McColl-Frontenac relied on
the reasoning of the British Columbia Court of Appeal, and found
that the plaintiff had filed insufficient evidence to show fresh
damages within the two year limitation period.
 I am guided by and grateful for Justice Penny's summary
of the law relating to continuing damage:
The law is clear when a party claims a continuing nuisance,
evidence of damages sustained during the limitation period is
required. In the face of a limitation defence, the mere presence of
contaminants in the soil or groundwater is not sufficient to found
a claim for damages for continuing nuisance. Rather, there must be
evidence of damage sustained within the limitation period, ML
Plaza Holdings Ltd. v. Imperial Oil Ltd.,  B.C.J. No.
479, 2006 CarswellBC 520 (B.C.S.C.) at para. 72, aff'd 2006
 There is a paucity of evidence from the plaintiff regarding
ongoing damage or nuisance, aside from the allegation in their
Statement of Claim.
Justice Wright's decision referred with approval to other
cases cited by the ML Plaza decision, applying this
analysis of continuing nuisance claims into the Ontario
 In Roberts, the defendant continued to operate the
sewage lagoon that discharged polluted water onto the
plaintiff's land. The action succeeded, but as I read it, only
for "fresh damage" resulting from flooding of polluted
water within the limitation period. Damage resulting from earlier
flooding was barred. This is confirmed by the citation, with
approval, of Dufferin Paving where the plaintiffs'
action failed for vibration damage to their house caused by the
defendant's heavy trucks passing in the street because the
damage was caused outside the limitation period, notwithstanding
that the truck traffic and vibrations continued within the
limitation period, without causing significant further damage.
The appeal period in Crombie v McColl-Frontenac has yet
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