The Court of Appeal for Ontario released a decision this year, in Huang v. Fraser Hillary’s Limited, 2018 ONCA 527, with important developments and clarifications affecting environmental litigation in Ontario. Last year, I published a case commentary on the trial decision in Huang v. Fraser Hillary’s Limited, 2017 ONSC 1500, regarding how subsection 99(2) of Ontario’s Environmental Protection Act, R.S.O. 1990, c. E.19 (EPA) provides a powerful remedial tool to seek compensation for historical spills. More recently, I wrote about a motion decision of the Court of Appeal in Huang v. Fraser Hillary’s Limited, 2018 ONCA 277, denying Ecojustice leave to intervene in the appeal. Now, the Court has released its judgment on the merits in this case which includes at least two important clarifications in the law applicable to environmental litigation.
Private Nuisance Does Not Require Reasonable Foreseeability
On appeal, Fraser Hillary’s Limited argued that the trial judge erred in law by failing to consider whether the environment damage suffered was reasonably foreseeable as a part of the nuisance analysis. In its decision, the Court of Appeal observed that although some Canadian tort law texts make statements regarding a reasonable foreseeability component of the nuisance analysis, those texts rely on authorities from England and New Zealand. The Court of Appeal acknowledged that reasonable foreseeability of harm has been accepted as part of British law in respect of private nuisance and in the Rylands v. Fletcher context. However, the Court noted that there has been “mixed acceptance of the reasonable foreseeability requirement in this country.” Following a review of the case law involving foreseeability and private nuisance, as well as reference to the Supreme Court of Canada decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, the leading case on private nuisance in Canada, the Court of Appeal noted that nowhere in the Supreme Court’s analysis did it indicate that foreseeability is part of the tort of nuisance. Writing for the Court of Appeal for Ontario, Justice Hourigan concluded on this point:
While I acknowledge the divergence in British law and the fact that the law may be evolving in this country, in the absence of any binding Canadian authority I conclude that foreseeability is not a necessary part of the tort of nuisance in Canada.
Justice Hourigan explained that the tort of nuisance is “a useful tool in the prosecution of environmental claims” consistent with “the principle that the polluter must pay” and that to include a foreseeability requirement would both blur the distinction between negligence and nuisance, as well as compromising the utility of the nuisance tort.
The EPA Imposes an Ongoing Obligation to Remediate
Fraser Hillary’s Limited also argued that the trial judge erred because he retrospectively applied Part X of the EPA to impose liability for a spill that occurred and ceased in or before 1974. The relevant legislation was not proclaimed into force until 1985, thus Fraser Hillary’s Limited made the argument that the EPA could not have application to the litigation. On this point, the Court of Appeal clarified that the trial judge did not retrospectively apply the EPA. The Court noted that “[t]ime does not freeze in 1974 for the purposes of liability under s.99(2). Accepting for the purposes of this argument that the spills ceased in that year, there was an ongoing obligation under s.93 of the EPA to remediate the damage.” Justice Hourigan noted simply that “while the spills may have occurred before Part X of the EPA was enacted, Fraser’s obligations under that part of the legislation are ongoing.”
Still a Powerful Remedial Tool
The Court of Appeal decision dismissing the appeal from the trial judgment in Huang v. Fraser Hillary’s Limited confirms that subsection 99(2) of the EPA is a powerful remedial tool to seek compensation for historical spills. The Court’s decision with respect to the reasonable foreseeability component of the private nuisance tort is consistent with the general trend in Canadian law in support of the principle that the polluter must pay (St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, at para. 80), and confirms that the nuisance tort is a useful tool in upholding that principle. The decision also affirms the importance of a purposive and generous interpretation of the EPA as remedial legislation, giving that Act, including Part X, a broad and liberal reading to best ensure attainment of its intent.