Canada: Case Law Summaries – Torts

Last Updated: April 1 2019
Article by Aidan L. Cameron, Lindsay Burgess, Vivian Ntiri and Jack Ruttle

Most Read Contributor in Canada, April 2019


In this case, the Ontario Court of Appeal held that foreseeability of harm is not an element of the tort of nuisance.

The finding was made in the context of historical environmental contamination of a property neighbouring that owned by the defendant, Fraser Hillary's Limited, which had operated a dry-cleaning business in Ottawa since 1960. Between 1960 and 1974, solvents used in the dry-cleaning process were discharged and subsequently contaminated the soil and groundwater on a neighbouring property owned by Mr. Huang. According to Fraser, the solvents had been used in accordance with the best practices at the time, and the environmental dangers of the solvents were not known at the time. The contamination was not uncovered until 2003 during an environmental assessment of Mr. Huang's property.

Mr. Huang brought an action against Fraser. Fraser was found liable under the tort of nuisance and s. 99 of the Environmental Protection Act (EPA), and was ordered to pay damages of over C$1.8 million. Fraser appealed, arguing that foreseeability of harm was a constituent element of the tort of nuisance, and that the EPA was being applied retrospectively.

Fraser's appeal was dismissed. The Court held that foreseeability of harm is not an element of the tort of nuisance, noting that a foreseeability requirement would blur the distinction between negligence and nuisance and that there were good policy reasons for maintaining the independent strength of the tort of nuisance. This meant that despite the fact that the impact on Mr. Huang's property was not foreseeable at the time of Fraser's actions, Fraser could still be held liable in nuisance.

The Court also rejected Fraser's argument that the EPA was retroactively applied. Part X of the EPA imposes duties to report and remediate spills and imposes liability for damage caused by a spill, but was not in force until 1985, which was well after Fraser's spills ceased. However, the Court held that once s. 93(1) came into force, it imposed a duty on all those that had previously owned or controlled a pollutant at the time it was spilled to take steps to remediate it, regardless of whether that discharge was ongoing. Fraser did not comply with this duty, and so was liable under the EPA.

For further analysis of this decision, see McCarthy Tétrault's Canadian ERA Perspectives blog post entitled "Uncertain Ground: Owners May Be Liable for Unforeseeable Environmental Effects". Fraser has sought leave to appeal to the Supreme Court of Canada.


In this decision, the British Columbia Supreme Court struck out some third-party claims brought against the Province of British Columbia (Province) in an action arising from the 2014 breach of the Mount Polley Mine tailings storage facility (Facility) in British Columbia.

Mount Polley Mining Corporation (Company), and its parent company, had sued two engineering firms (Engineers) seeking damages arising from the breach. The Engineers in turn filed third-party claims against the Province alleging that the Province was liable to the plaintiffs for negligent regulatory oversight. The Province's Chief Inspector of Mines, and his Ministry staff, had issued the permits for the construction of the facility; reviewed all subsurface investigation reports, design reports, bi-monthly progress reports, as-built reports, and annual raise design reports; and annual inspection reports; issued amendments to them; conducted on-site geotechnical inspections; and hired third-party consultants to review the work of the Engineers and provide advice in respect of such work.

The Court struck out all third party claims that alleged the Province owed a duty of care to the Engineers, but allowed some of the claims alleging the Province owed a duty of care to the mine owner. In doing so, the Court articulated a narrow set of circumstances in which sufficient "proximity" could exist to establish a duty of care between a regulator (the Province) and the regulated (the Company). As a starting proposition, the Court held that where a regulator deals with a regulated party for the purpose of administering and enforcing a statutory scheme, the general rule is that such interactions will not give rise to a relationship of proximity and therefore no duty of care arises. In coming to this conclusion, the Court chose not to follow jurisprudence that imposes such a duty of care in analogous circumstances involving building inspectors and property owners.

After articulating the general rule, the Court then outlined a set of exceptions that could give rise to sufficient proximity for a duty of care to arise, including: (i) where the governing statute provides a mandatory obligation on the regulator to take regulatory action in the face of foreseeable harm to human safety or the environment; (ii) where the regulator steps outside the role of regulator and assumes the role of designer, developer or advisor to the regulated party; (iii) where the regulator acquires knowledge of serious and specific risks to a clearly defined group of the class that the statutory scheme was intended to protect; (iv) where the regulator makes a specific misrepresentation to the regulated party that invites reliance; and (v) where interactions between the regulator and the regulated party give rise to expectations that the regulator will consider the interests of the regulated party. Subject to the foregoing exceptions, the Court held that any duty of care based solely on conduct within the regulator's powers to regulate should be struck.

Some of the Engineers' allegations fit within the Court's articulated exceptions and the Court granted the Engineers leave to amend their respective Third Party Notices to remove any claims that did not fit within one of the exceptions and, where necessary, to re-cast the claims to conform with the Court's decision.

To view original article, please click here.

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

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions