Ontario Courts Continue To Clarify The Scope And Power Of Section 99 Of The Environmental Protection Act

In this Update

We analyze the court's guidance in Huang v Fraser Hillary's Limited, 2017 ONSC 1500 (Huang) on the following:

how the application of section 99 of the Environmental Protection Act (EPA) may provide, in certain circumstances, a powerful tool for those that have suffered damages as a result of spills; the possible reach and limitations of the so-called "spill action" legislation; the definition of "spills" under subsection 91(1) of the EPA; damages in nuisance cases; and limits that the legislature has placed on section 99 causes of action In Huang v Fraser Hillary's Limited, 2017 ONSC 1500 (Huang), the Ontario Superior Court of Justice (ONSC) confirmed that plaintiffs can rely on section 99 of the Environmental Protection Act, R.S.O. 1990, c. E19 (EPA) - a section enacted in 1985 - to claim damages for spills which occurred before section 99 was enacted. The Court's discussion in this case provides helpful guidance on the possible reach and limitations of the so-called "spill action" legislation.

Background

The plaintiff, Eddy Huang (Huang), brought an action against both Fraser Hillary's Limited (FHL) and an individual defendant, David Hillary (Hillary), for remedial and expert expenses in relation to tetrachloroethylene (PCE) and trichloroethylene (TCE) contamination on Huang's properties at 1255 and 1263 Bank Street, Ottawa (1255 and 1263 Bank). The alleged source of the contamination was 1235 Bank street (1235 Bank), an adjacent property owned by FHL where a dry cleaning facility had been operating (and was still operating) since 1960. The individual defendant, Hillary, was the homeowner of a flow-through property adjacent to Huang's property. While Hillary was also the sole shareholder, director and officer of FHL, he was not sued in this capacity. The claims targeted the years between 1960 and 1974 when spills of PCE/TCE were known to have occurred at FHL's source property at 1235 Bank, and which pre-dated the installation of a new dry-cleaning system which essentially eliminated the possibility of further spills.

The evidence established that Huang had approached his bank in 2002 with a view to redeveloping both 1255 and 1263 Bank. At that time, Huang's mortgage specialist recommended that he arrange for a Phase 1 environmental site assessment (ESA) to evaluate the environmental condition of the property. The Phase I ESA confirmed the likely presence of site contamination. Huang then commissioned a Phase II ESA which...