Uncertain Ground: Owners May Be Liable For Unforeseeable Environmental Effects

In Huang v. Fraser Hillary's Limited, 2018 ONCA 527, the Ontario Court of Appeal recently ruled that foreseeability of harm is not an element of the tort of nuisance in the context of historical environmental contamination of a neighbouring property by a dry-cleaning business.

Background

Fraser Hillary's Limited ("Fraser") had operated a dry-cleaning business on the same property 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 the adjacent property owned by Mr. Huang. Fraser had used the solvents in accordance with best practices at the time - the recommended disposal method at the time was to simply pour the solvents out on the ground - and the environmental dangers of the solvents were not known. In 1974, Fraser purchased new equipment which eliminated the potential for further discharges.

The contamination was not uncovered until 2003 during the course of a environmental assessment of Mr. Huang's property. Mr. Huang subsequently brought an action and Fraser was held liable under the tort of nuisance and section 99 of the Environmental Protection Act, R.S.O. 1990, c. E.19 ("EPA") and ordered to pay damages of over $1.8 million. The claims based on the torts of negligence and trespass and the rule in Rylands v. Fletcher were dismissed.

Fraser appealed, arguing that foreseeability of harm was a constituent element of the tort of nuisance and section 99 of the EPA was being applied retrospectively.

A Break Between Canadian and English Law: Foreseeability Not an Element of Nuisance

In a unanimous decision, the Court of Appeal held that foreseeability of harm is not an element of the tort of nuisance. The tort of nuisance has only two elements:

A person is responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land; and The injury or interference is unreasonable in light of all the surrounding circumstances. Hourigan J.A. noted that reasonability foreseeability as an element of nuisance (i) has been accepted in English law, (ii) had been accepted by lower court decisions in Ontario, and (iii) had been accepted in leading Canadian tort law texts based on this case law. However, the Court charted a different path for the law in Ontario.

The Court stated that the addition of a foreseeability requirement would blur the distinction between...