Too Little, Too Late: Court Of Appeal Refuses To Consider New Defence In Environmental Contamination Case Of Sorbam Investments

• Published date: 18 August 2022
• Law Firm: Lerners
• Author: Mr Jacob Damstra

In a recent appeal decision in an environmental contamination case, Sorbam Investments Ltd v Litwack, 2022 ONCA 551,¹ the Court of Appeal for Ontario affirmed the trial judgment holding the appellant 1129292 Ontario Limited liable in nuisance and negligence for migration of chemicals. The Court of Appeal upheld the trial judge's approach to assessing competing expert evidence in environmental contamination cases, the finding of a landlord liable for contamination caused by a former tenant, and a calculation of damages in environmental contamination cases. The Court of Appeal also provided useful guidance on the general rule against raising new issues on appeal, which is the focus of this blog.

Trial Decision on Nuisance and Negligence

The main issue at trial was whether contaminants had migrated from the respondent's property to the appellant's property or vice versa.² The appellant and respondent owned neighbouring properties, and prior to the appellant purchasing the property, a dry cleaning business had operated there.³ The trial judge concluded that the contaminants had migrated from the appellant's property to the respondent's property, but that the contaminants were likely from the dry cleaning business prior to the appellant's ownership.⁴

In...