The Supreme Court of Canada recently denied leave to appeal the
decision of the Ontario Court of Appeal in Midwest Properties
Ltd. v. Thordarson.1 Accordingly, the Court of
Appeal's decision to award compensation under section 99 of the
Ontario Environmental Protection Act ("EPA")
stands. As a result, remediation costs which exceeded $1 million
and the reduction in property value was determined to be the
appropriate compensation in the circumstances.
Historically, there has been debate among the courts about
whether diminution of property or remediation costs are the proper
method for awarding damages. Given the outcome in Thordarson, the
strategy for dealing with such claims will change. Environmental
claims regarding contaminated property will now effectively always
include a claim under s. 99, in addition to the traditional claims
under negligence, nuisance, trespass and Rylands v.
Fletcher.2 Further, the strategy for responding to
such claims will also change.
