Putting The "New" In Nuisance: Nuisance Present Before Purchase May Prevent Post-Purchase Recovery

When your land is contaminated by a neighbour, proving that it happened may not always be enough. In Midwest v. Thordarson, 2013 ONSC 775 the plaintiff Midwest Properties Ltd. ("Midwest") purchased a property after obtaining a Phase I Environmental Assessment. Midwest never tested the property's soil before purchasing it. However, when it later found out that it was contaminated, Midwest brought an action against Thorco Contracting Limited and John Thordarson (the owner of the adjacent property and its principal) (the "Defendants") for breaching the Environmental Protection Act (the "EPA") and for nuisance and negligence.

The Defendants used their property as a storage site for petroleum hydrocarbon waste since 1973 but argued at trial that the contamination on Midwest's property was not theirs. Pollak J. did not accept the Defendants' argument that someone else caused the contamination on Midwest's property. With respect to the EPA claim against the Defendants, the