I continue to be amazed by the number of people who knowingly
(or carelessly) buy a contaminated site, wrongly assuming that they
will have an automatic right to successfully sue a neighbour
for the cost of cleanup. What advice are they getting from the real
estate and litigation bar?
I can't think of a single case (except an outlier in
Newfoundland) where an intentional purchaser of a contaminated site
successfully collected the cost of cleanup after a
contested trial. And yet the flood of such lawsuits continues.
The latest case was tossed out, after a summary judgment motion,
on limitations grounds. In Crombie v McColl-Frontenac, 2015 ONSC
6560, the buyers knew throughout that the next door property
was a former gas station. They bought the property anyway,
and then sued the past and present owners of the neighbouring
property. The defendants obtained summary judgment, because the
contamination was already discoverable before the plaintiffs
purchased their property, more than two years before they launched
It is obvious from my above findings of fact that the contamination
issues attached to the Crombie property were a concern even at the
time the initial Offer to Purchase was made. ....
find that by March 9, 2012, when Crombie waived the environmental
clause, they had become aware of sufficient material facts to form
the basis of an action. I am mindful that most of the
material available to them on that date was a review of the
property, but that does not make it any less actionable. It
is the compilation of the material that was presented to them that
armed them with sufficient knowledge at that moment to move forward
with a claim. All the testing that followed simply confirmed
their suspicions about what had already been reported on.
Even if I am wrong on that, it is incontrovertible, on the facts as
I have found them to be, that Crombie had more than a sufficient
basis for an action by March 30, 2012. It is of no
moment that the draft Phase II report is dated May 9, 2012. The
crucial part of that report is the findings from the drilling and
soil sample all of which was made available to Crombie in March 30,
The buyers tried, unsuccessfully, to avoid
the limitation problem by arguing that there was a continuing
discharge of contaminants from the neighbouring property.
This, they argued, continually triggered a new running of the
limitation period. They lost because they could not prove
that any continuing flow was creating new environmental damage, on
top of whatever had been there before. This is a common issue,
since many old contaminant plumes have reached a steady state:
 I am guided by and grateful for Justice Penny's summary
of the law in relation 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 BCCA 564
 None of the environmental reports that have been generated
speak to the issue of ongoing damage.
 The plaintiff argues that the ongoing damage is a separate
cause of action and therefore a separate and distinct limitation
 Given the absence of evidence in relation to the allegation
of continuing damage and my inability to distinguish it as such, I
am not prepared to attach an artificial limitation period to
 The limitation period in question attaches to the entire
claim. There is no evidentiary foundation that would support a
bifurcation of the issues.
The unsuccessful plaintiffs were ordered to pay the defendants
$190,000 in legal costs.
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.
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...
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).