{"id":905,"date":"2019-05-02T11:14:21","date_gmt":"2019-05-02T15:14:21","guid":{"rendered":"http:\/\/limitations.ca\/?p=905"},"modified":"2019-05-02T11:15:26","modified_gmt":"2019-05-02T15:15:26","slug":"ontario-an-alternative-resolution-process-that-didnt-impact-on-the-limitation-period","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=905","title":{"rendered":"Ontario: an alternative resolution process that didn’t impact on the limitation period"},"content":{"rendered":"

Soleimani v. Rolland Levesque<\/em><\/a> provides an example of an alternative resolution process that doesn\u2019t render a proceeding an inappropriate remedy pursuant to s. 5(1)(a)(iv)<\/a>\u00a0of the Limitations Act.<\/p>\n

Th action involved claims between neighbouring property owners arising out of alleged contamination of the plaintiffs\u2019 property by hydrocarbons flowing from the defendant\u2019s property.\u00a0 Following the discovery of the contamination, the plaintiffs notified the Ministry of the Environment (MOE), which \u00a0became involved in addressing the contamination.<\/p>\n

In response to the defendant\u2019s limitations defence, the plaintiffs argued that the MOE\u2019s involvement was a reasonable means to attempt to remediate the damage, and a claim wasn\u2019t an appropriate remedy for that damage until eight years later when expert investigation directed by the MOE (and funded by the defendant) determined the source of the contamination.<\/p>\n

The court rejected this argument.\u00a0 The MOE\u2019s involvement was not part of a dispute resolution process or mechanism: the MOE acts at its own discretion, it has no power to award damages, and the there could be no certainty as to when its involvement would come to an end:<\/p>\n

\n

[<\/a>45]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In considering whether the MOE\u2019s interventions in this case constitute a legally appropriate means to remedy the plaintiffs\u2019 damages it is necessary to recognize that the provisions of the\u00a0EPA<\/a>\u00a0do not provide a dispute resolution process or mechanism.\u00a0 The steps the MOE chooses to take are in the MOE\u2019s discretion.\u00a0 The MOE has no power to award damages or compensation to the plaintiffs.\u00a0 Neither the previsions of the\u00a0EPA<\/a>\u00a0nor the facts of this case allow the court to say with any certainty when the MOE\u2019s involvement would come to an end so as to determine when the limitation period might commence.<\/p>\n

[<\/a>46]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Moreover the MOE intervention cannot result in a declaration of responsibility for the contamination nor can it award damages for stigma nor the full recovery of legal, engineering and other costs and expenses nor damages for other economic losses, all as claimed in the plaintiffs\u2019 statement of claim.<\/p>\n

[<\/a>47]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0On the other hand, I recognize that the MOE has substantial powers in the exercise of their discretion to require the defendants to investigate the cause of and remediate contamination on both the defendants\u2019 and the plaintiffs\u2019 lands and to direct that this be done at the defendants\u2019 cost.<\/p>\n

[<\/a>48]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The EPA broadly empowers the MOE to make orders to clean up contamination and prevent the discharge of contaminants into the environment.\u00a0 For instance, pursuant to\u00a0section 17<\/a>\u00a0of the\u00a0EPA<\/a>, the Director has the power to issue \u201cremedial orders\u201d where a person has caused or permitted a contaminant to be discharged into the natural environmental.\u00a0 This section empowers the Director to order that person to repair the injury or damage:<\/p>\n

Where any person causes or permits the discharge of a contaminant into the natural environment, so that land, water, property, animal life, plant life, or human health or safety is injured, damaged or endangered, the Director may order the person to,<\/p>\n

a)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0Repair the injury or damage;<\/p>\n

b)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Prevent the injury or damage; or<\/p>\n

c)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0Where the discharge has damaged or endangered or is likely to damage or endanger existing water supplies, provide temporary or permanent alternate water supplies.<\/p>\n

[<\/a>49]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Pursuant to\u00a0section 157.1<\/a>\u00a0of the\u00a0EPA<\/a>, a provincial officer can also order a person who owns or who has management or control or property to take\u00a0\u201cpreventive measures\u201d<\/i>\u00a0to:<\/p>\n

(a)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Prevent or reduce the risk of a discharge of a contaminant into the natural environment;<\/p>\n

(b)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0Prevent, decrease or eliminate an adverse affect that may result from:<\/p>\n

(i)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0The discharge of a contaminant from the undertaking, or<\/p>\n

(ii)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The presence or discharge of a contaminant in, on or under the property.<\/p>\n

[<\/a>50]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In determining whether a court action is an appropriate remedy pursuant to\u00a0s. 5(1)<\/a>(a)(iv) of the\u00a0Act<\/a>, Laskin J.A. in\u00a0ETR Concession<\/i>\u00a0instructed that the court should consider (a) the nature of the plaintiffs\u2019 loss; (b) the circumstances of the plaintiffs, and (c) efficiency of the court.<\/p>\n

[<\/a>51]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0This is an environmental claim.\u00a0 The major dispute between the parties has been, at least until very recently, whether the pollutants are emanating from the defendants\u2019 land onto the plaintiffs\u2019 land or, as the defendants claim, from the plaintiffs\u2019 land onto the defendants\u2019 land.\u00a0 On the facts of this case, there can be no doubt that the MOE\u2019s interventions have provided a means to determine the source of the contamination and remedial orders have been made.<\/p>\n

[<\/a>52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The plaintiffs submit that given their particular situation, the MOE interventions may substantially reduce the plaintiffs\u2019 damages and therefore it would be inappropriate to require the plaintiffs to prematurely resort to court proceedings while the regulatory process under the\u00a0EPA<\/a>\u00a0is ongoing.<\/p>\n

[<\/a>53]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In my view the principal difficulty with the plaintiffs\u2019 position is that there is no reasonable basis to ascertain when the MOE\u2019s involvement will end.\u00a0 To date, it has gone on in excess of eight years with no end point in site.\u00a0 I agree with the defendants\u2019 submission that the\u00a0EPA<\/a>\u00a0does not in any sense establish an alternative adjudication or dispute resolution process for contamination claims.\u00a0 While the MOE has significant remedial powers to direct the investigation and remediation of ground water contamination, these powers are outside the land owners\u2019 control and are discretionary in nature.\u00a0 These powers do not include any right to award economic damages or to grant declaratory orders, which is a significant component of the relief sought in this action.<\/p>\n

[<\/a>54]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The plaintiffs have argued that the limitation period should not run until the causation question was resolved (within the last two years) concerning the direction of flow of the contaminants.\u00a0 They suggest that prior to resolving that issue it would have been unreasonable to commence court proceedings.<\/p>\n

[<\/a>55]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The plaintiffs emphasize the benefits they have achieved by allowing the MOE to deal with the contamination.\u00a0 Thanks to the MOE exercising its statutory powers to direct the investigation and remediation of the groundwater contamination, the plaintiffs have avoided the considerable engineering costs of investigating the problem, of obtaining experts\u2019 reports and of soil removal and other remedial measures.\u00a0 They have also avoided or lessened the litigation risk of a possible determination that the contamination emanated from their own property, rather than the defendants\u2019 property.<\/p>\n

[<\/a>56]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In effect, the plaintiffs can be said, in retrospect, to have made a wise economic choice in leaving the contamination issue in the hands of the MOE.\u00a0 However this was manifestly a tactical decision made by the plaintiffs to avoid the costs and litigation risks of investigating their claim and establishing their case on liability and damages.\u00a0 They chose to stand back for some four years prior to commencing this action to allow the MOE to move matters forward.\u00a0 The case law is clear that tactical decisions will not toll the limitation period, see\u00a0Markel and Presidential MSR.\u00a0\u00a0<\/i>As Mew J. observed in\u00a0J.C. v. Farant<\/i>\u00a0at para 87:<\/p>\n

Another recent decision,\u00a0Gravelle (CodePro Manufacturing) v. Denis Grigoras Law Office<\/i>,\u00a02018 ONCA 396 (CanLII)<\/span><\/a><\/span>, reinforced the principle that a tactical decision to delay the commencement of proceedings will not, absent other factors \u2013 such as the pursuit of alternative means to resolve the very claim that I the subject matter of the action \u2013 delay the running of time.\u00a0 At para. 6, the Court of Appeal stated:<\/p>\n

\u00a0The appellant decided for tactical reasons not to bring his action against the respondents until the arbitration proceedings were completed.\u00a0 He was entitled to make this choice, but he must live with the consequences of it.<\/p>\n

[<\/a>59]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In my view this position is untenable and inconsistent with the appellate case law binding on this court.\u00a0 The circumstances triggering the running of the limitation cannot be a moving target incapable of being ascertained with the level of reasonable certainty required.\u00a0 This would create a situation in which the plaintiffs essentially determine when the limitation period commences.<\/p>\n

[<\/a>61]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In my opinion the approach advocated by the plaintiffs and the intervenors ignores the requirement that the appropriate means exception in sub-section 5(1)<\/a>(a)(iv) of the\u00a0Act<\/a><\/i>\u00a0be restricted to factual situations in which the alternate avenue of redress is legally appropriate in the sense that the courts must not be required to interpret the parties\u2019 communications or negotiations or, be required to analyze the significance of the technical findings of ongoing engineering studies and importantly, there needs to be a fixed end point.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Soleimani v. Rolland Levesque provides an example of an alternative resolution process that doesn\u2019t render a proceeding an inappropriate remedy pursuant to s. 5(1)(a)(iv)\u00a0of the Limitations Act. Th action involved claims between neighbouring property owners arising out of alleged contamination of the plaintiffs\u2019 property by hydrocarbons flowing from the defendant\u2019s property.\u00a0 Following the discovery of … Continue reading Ontario: an alternative resolution process that didn’t impact on the limitation period<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[541,87,144,9,538,540,539,45],"class_list":["post-905","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-alternative-dispute-resolution-processes","tag-discoverability","tag-discoverability-principles","tag-discovery","tag-environmental-claims","tag-leaky-hydrocarbons","tag-moe","tag-ontario-act-s-51aiv"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/905","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=905"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/905\/revisions"}],"predecessor-version":[{"id":907,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/905\/revisions\/907"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=905"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=905"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=905"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}