Intervenor: vol. 26, no. 4 September - December 2001

CELA In The Courts - CELA Clients Successful in Supreme Court of Canada

In September 2001, CELA clients won an important appeal in the Supreme Court of Canada. The appeal focused on the proper interpretation of the special six-month limitation period found in section 7 of Ontario's Public Authorities Protection Act (PAPA).

CELA's clients are members of a farm family who purchased a dairy farm in southwestern Ontario in 1981. The family was unaware that large quantities of waste asphalt from a provincial highway reconstruction project had been buried at the farm in the 1960s.

Throughout the 1980s, the family experienced various operational difficulties, including cattle death and disease, low milk production, and an oily sheen in the wellwater. In 1989, the family discovered that tonnes of waste asphalt had been buried at the farm in the vicinity of the well, farmyard, and nearby creek.

After some governmental investigations were carried out at the farm in the early 1990s, the family retained private consultants to undertake a series of complex environmental tests of the soil, asphalt, water, and cattle tissue in 1992-93. In early 1994, the family commenced a lawsuit against the Government of Ontario, alleging that contaminants from the buried asphalt had leached into the soil, groundwater and surface water at the farm.

Prior to trial, however, the Ontario government brought a motion for summary judgment dismissing the lawsuit on the grounds that it was statute-barred by section 7 of the PAPA. In particular, Ontario argued that the lawsuit had been commenced beyond the six-month limitation period under the PAPA.

Ontario's position was accepted by a motions court judge, and his 1998 ruling was upheld by the Ontario Court of Appeal in 1999. CELA's clients then applied for and received leave to appeal to the Supreme Court of Canada in 2000, and the appeal was heard in April 2001.

In its judgment released September 27, 2001, the Supreme Court of Canada unanimously rejected Ontario's argument that the PAPA limitation period was applicable in the case. Accordingly, the Court granted the family's appeal with costs, and ordered that the action be restored to the trial list.

In particular, the Court affirmed and applied previous jurisprudence indicating that the protection of the PAPA limitation period is limited to an authority's "public" duties and powers, rather than other duties or powers that are essentially private in nature. In the case at bar, the Court noted that Ontario was a public authority that had a legislative public duty to maintain and repair highways. However, the Court went on to hold that there was no statutory duty upon Ontario to bury waste asphalt upon private lands. Moreover, the Court found that the asphalt disposal activity itself was largely operational in nature and had a predominately private aspect. Accordingly, the Court concluded that this waste disposal activity fell outside the protective scope of section 7 of the PAPA.

The Supreme Court decision does not appear to break any new legal ground, and it is unlikely to result in a floodgate of environmental litigation. However, where a plaintiff is suing a public authority for environmental harm, the Supreme Court decision provides considerable clarity and direction as to whether the PAPA limitation period is available to the defendant.

At this time, no date has been set for the trial of the farm family's action against Ontario. The full text of the Supreme Court of Canada judgment in Berendsen v. Ontario (File No. 27312) can be viewed online at www.scc-csc.gc.ca
_____________________________

Rick Lindgren is a lawyer at CELA