Post-Midwest: Section 99(2) Of The EPA Proves A Powerful Tool

The Ontario Superior Court awarded damages for migration of dry cleaning solvents the defendant corporation spilled between 1960 and 1974 in Huang v Fraser Hillary's Limited, 2017 ONSC 1500 [Huang] under section 99(2) of the Environmental Protection Act (EPA).

Huang is the first application of the statutory cause of action provided under section 99 of the EPA, following Midwest Properties Ltd. v Thordarson, 2015 ONCA 819 [Midwest]. In Midwest, the Court of Appeal found that section 99(2) creates a separate, distinct ground of liability for polluters, regardless of fault or negligence. 

In Huang, the court found liability under section 99(2), but rejected claims grounded in negligence, nuisance, trespass, and strict liability under Rylands v Fletcher. This expansive interpretation of section 99(2) suggests that, post-Midwest, the statutory cause of action provides a far more robust tool than the common law for plaintiffs seeking compensation for