Much Ado About Nothing Or A Comedy Of Errors: The Post-Smith v. Inco Environmental Tort Landscape

The 2011 Ontario Court of Appeal decision in Smith v. Inco ("Inco") contains no fewer than 75, often lengthy, paragraphs of detailed legal analysis in respect of liability for environmental contamination. Approximately four of those paragraphs have caused, or at least created the impression they have caused, a dramatic redefinition of environmental law's most coveted torts: Strict liability and private nuisance.

While it's not clear to the author that such a significant shift in the law was intended by Ontario's Highest Court, it is apparent that judges, commentators, and lawyers across the country certainly interpret Inco as eviscerating the common law principles historically relied on by plaintiffs in most environmental lawsuits. As we approach the third anniversary of the decision, and in light of the Supreme Court of Canada's refusal to reconsider an appeal, it is a worthy time to take stock of the current environmental tort landscape.