When Is An Environmental Contamination Claim Too Old To Extend The Limitation Period?

40 to 60 years may be too old when determining whether to extend a limitation period for a negligence-based environmental contamination claim, the court recently ruled in Brookfield Residential (Alberta) LP (Carma Developers LP) v Imperial Oil Limited, 2017 ABQB 218 [Brookfield]. In Brookfield, the likelihood of prejudice to the defendant in granting an extension was significant since the alleged cause of the environmental damage occurred over 60 years ago, witnesses and documents were no longer available, and expert evidence on the standard of care at the time would be impossible to obtain.

The facts of Brookfield involved a claim brought in negligence against Imperial Oil Ltd. (Imperial) by Brookfield Residential (Alberta) LP (Brookfield) based on environmental contamination from an oil well. Imperial drilled and operated the well between 1949 and 1950, and disposed of it in either 1950 or 1954. A different owner operated the well between 1950 and 1957 and then used it for salt water disposal between 1958 and 1961, at which point the well was decommissioned and abandoned. Contamination requiring remediation was not discovered until 2010 when Brookfield was preparing the site for residential development.

Extending a Limitation Period for an Environmental Claim

Imperial sought to summarily dismiss Brookfield's claim on the basis that the 10-year ultimate limitation period set out in the Limitations Act, RSA 2000, c L-12 had expired. In response, Brookfield sought an extension of the limitation period under section 218 of the Environmental Protection and Enhancement Act, RSA 2000, c E-12 [EPEA], which states:

218(1) A judge of the Court of Queen's Bench may, on application, extend a limitation period provided by a law in force in Alberta for the commencement of a civil proceeding where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment.

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(3) In considering an application under subsection (1), the judge shall consider the following factors, where information is available:

(a) when the alleged adverse effect occurred;

(b) whether the alleged adverse effect ought to have been discovered by the claimant had the claimant exercised due diligence in ascertaining the presence of the alleged adverse effect, and whether the claimant exercised such due diligence;

(c) whether extending the limitation period would prejudice the proposed defendant's ability to maintain a...