On May 26, 2016, the Supreme Court of Canada denied leave to appeal the decision of the
Ontario Court of Appeal in Midwest Properties Ltd. v.
Thordarson, 2016 ONCA 819 (Midwest). Accordingly, the
Court of Appeal's significant decision regarding the statutory
right to compensation for spills under section 99 of the Ontario
Environmental Protection Act (EPA) remains the law of the
land in Ontario.
As discussed in more detail in our previous Osler Update,
Ninety-nine problems: Ontario Court of Appeal releases significant
decision for environmental civil litigation," the Court of
Appeal confirmed in Midwest that section 99 creates a
separate, distinct ground of liability for polluters that does not
require a plaintiff to establish intent, fault, a duty of care or
foreseeability, but instead focuses on the ownership and control of
the pollutant. Furthermore, a successful claim under section 99
entitles a plaintiff to damages calculated on the basis of cost of
remediating the pollution from a property, as opposed to diminution
of value of the contaminated property. Finally, the Court of Appeal
used the concept of ownership and/or control of a pollutant to
pierce the corporate veil to hold the principal of the polluting
company in Midwest personally liable.
With the Supreme Court effectively blessing the Ontario Court of
Appeal's decision in Midwest, claims under section 99
of the EPA may become the primary cause of action in any
contaminated lands dispute due to the preferable and expansive
treatment of damages (i.e., the cost of restoration) that section
99 unlocks. However, given the fairly egregious facts of
Midwest, this debate may be far from settled.
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.
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