Supreme Court Of Canada Denies Leave To Appeal In The Latest Dry Cleaner Contamination Case

On April 11, 2019, the Supreme Court of Canada denied the dry cleaner's application for leave to appeal from the Ontario Court of Appeal's decision in Huang v Fraser Hillary's Ltd. 1

Huang confirms that Ontario courts are inclined to measure and assess damages in contaminated land lawsuits based on the cost to remediate contamination and that the statutory cause of action in Ontario's Environmental Protection Act ("EPA"), 2 s. 99(2) is alive-and-well. Huang is the latest decision in what we expect will be an increasing number of claims brought pursuant to EPA, s. 99(2).

Fraser Hillary's Limited ("FHL") owns a dry cleaning business in Ottawa that has operated since 1960 near two neighbouring commercial properties owned by Eddy Huang. David Hillary is the president and sole corporate director of FHL. Mr. Hillary also owns a residential property situated near the FHL property. 3

Spills of dry cleaning solvents containing tetrachloroethylene ("PCE") and trichloroethylene ("TCE") were known to have occurred between 1960 and 1974 at FHL's dry cleaning business. In 1974, FHL bought new equipment and deployed new practices that the trial court and Court of Appeal held virtually eliminated any possibility of spills thereafter. 4

In 2002, Mr. Huang discovered TCE at his nearby commercial properties. He sued FHL and Mr. Hillary.5 Mr. Huang relied on five causes of action that plaintiffs typically plead in contaminated land lawsuits:

liability pursuant to EPA, s. 99(2) nuisance strict liability negligence trespass. Trial Decision

At trial, the Ontario Superior Court of Justice found that

FHL was liable pursuant to EPA, s. 99(2) as the owner and controller of a spilled pollutant. The trial court held that EPA, s. 99(2) applies prospectively to permit compensation for spills that happened before the statutory cause of action was promulgated into law in 1985.6 FHL was liable in nuisance because the TCE present at Mr. Huang's property caused an interference with Mr. Huang's use and enjoyment of land that was both substantial and nontrivial.7 FHL was...