Case Law Summaries – Torts

HUANG V. FRASER HILLARY'S LIMITED, 2018 ONCA 527

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...