Feb 20, 2015

Ontario Court of Appeal Summaries (Feb. 9 to 13, 2015)

1317424 Ontario Inc., v. Chrysler Canada Inc., 2015 ONCA 104 (CanLII)

[Feldman, Simmons and Pardu JJ.A.]

Counsel:

R. F. Leach and M. A. Polvere, for the appellants

B. Bresner, for the respondent, Chrysler Canada Inc.

Keywords: Torts, Environmental Law, Nuisance, Requirement of Emanating from Other Land Contamination, Remediation

Facts:
The land in issue was operated as a foundry and asbestos insulation producer for several decades, resulting in significant contamination. It was acquired by Chrysler in 1987 and decommissioned to then-current standards. In 1989, Chrysler sold the land to The D’Andrea Group Inc., with a certificate from the Ministry of the Environment confirming that the land had been decommissioned in accordance with existing regulatory requirements. The D’Andrea Group in turn sold the land to the appellants in 1999. The appellants’ suit against Chrysler is for negligence in decommissioning the property and failing to remediate it, negligent misstatement that Chrysler had properly remediated the land, and the creation of a stigma to the land.

The appellants later sought to amend to add a claim against Chrysler for nuisance by failing to remediate, causing an unreasonable interference with the use and enjoyment of the land. That amendment was denied by the motion judge. He concluded that, to form a tenable nuisance claim, the interference with the use and enjoyment of the claimant’s land must originate outside the plaintiff’s land. The appellants appealed, arguing that the scope of nuisance was not finally settled, and that the claim should therefore be allowed to proceed.

Issue: Can a claim in nuisance be made when the nuisance emanates from the plaintiff’s own land and not from outside that land?

Decision: Appeal dismissed.

Reasoning:
The issue of whether a nuisance must emanate from another’s land was recently specifically addressed by the Nova Scotia Court of Appeal in W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavation Ltd., 2007 NSCA 92, 258 N.S.R. (2d) 41. In Whebby, at para. 128, Cromwell J.A. (as he then was) stated that regardless of who causes the nuisance, the interference with the plaintiff’s land must be indirect and not direct, meaning it must originate elsewhere than on the plaintiff’s land. Therefore, the alleged nuisance must originate somewhere other than on the plaintiff’s land.

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