



COURT OF APPEAL FOR ONTARIO

CITATION: Huang v. Fraser Hillary's Limited, 2018 ONCA 277

DATE: 20180320

DOCKET: M48763 (C63576 & C63592)

Strathy C.J.O. (Motion Judge)

BETWEEN

Eddy Huang

Plaintiff
(Appellant/Respondent)

and

Fraser Hillarys Limited and David Hillary

Defendants
(Respondents/Appellants)

Sarah McDonald and Kaitlyn Mitchell, for the proposed
    intervener Ecojustice

Michael S. Hebert, for the appellant Eddy Huang

Jeremy R. Rubenstein, for the respondent David Hillary

Michael S. Rankin and Jonathan OHara, for the
    respondent Fraser Hillarys Limited

Heard: March 13, 2018 (via videoconference and teleconference)

ENDORSEMENT

[1]

Ecojustice moves for leave to intervene in this appeal
    as a friend of the court pursuant to r. 13.02 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.

[2]

The judgment appealed against held Fraser
    Hillarys Limited liable in nuisance and under the
Environmental
    Protection Act
, R.S.O. 1990, c. E19 (
EPA
) for approximately $1.8 million in damages arising from the
    contamination of Mr. Huangs land by pollutants from the corporations dry
    cleaning business. Claims in trespass, negligence and under the rule in
Rylands
    v. Fletcher
(1868), L.R. 3 H.L. 330 (U.K. H.L.),

were dismissed. The claims against Mr.
    Hillary were also dismissed.

[3]

Ecojustice says that it has a unique perspective
    on some of the legal questions at issue on the appeal and a genuine interest in
    the courts interpretation and application of the legal principles. It claims
    that its perspective would be of assistance to the court in understanding the
    environmental law implications of its decision.

[4]

The considerations on a motion of this kind are
    set out in
Peel (Regional Municipality) v. Great Atlantic &
    Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164
    (C.A.), at p. 167. They are: (a) the nature of the case; (b) the issues that
    arise; and (c) the likelihood that the proposed intervener will be able to make
    a useful contribution to the resolution of the appeal without causing injustice
    to the immediate parties.

(a)

The nature of the case

[5]

The nature of the case is an important factor,
    as Watt J.A. noted in
Jones v. Tsige
(2011),
    106 O.R. (3d) 721 (C.A., in Chambers), at para. 23. The standard to be met by the
    proposed intervener is more onerous where the litigation is a private dispute
    as opposed to a public prosecution.

[6]

This case falls into the former category. It is
    fundamentally private litigation in which one of the parties, Mr. Huang,
    claimed that the other parties polluted his property.

(b)

The issues that arise

[7]

The issues concern the application of
    well-settled, one might say ancient, causes of action: trespass, negligence and
    nuisance. While each party suggests that the trial judge erred in his interpretation
    or application of some of those causes of action, the legal issues are not
    complex.

[8]

There is also an issue concerning the
    application of a statutory provision: s. 99(2) of the
EPA
.

[9]

Intervention may be warranted in some cases
    where the construction or application of important legislation  particularly a
    provision such as this, which has received little judicial interpretation  is
    at issue.

[10]

Significantly, however, this provision is not a
    major focus of the proposed intervention. Ecojustice proposes to make brief
    submissions about the appropriateness of rebutting the presumption against the
    retrospective application of the provision. It says that its submissions will
    differ from those of the parties and will be of use to the Court in the
    event that it finds that retrospective application is at issue in the appeal.

[11]

Ecojustice says it will bring additional case
    law and authorities to the courts attention, but does not elaborate on how its
    submissions will be different or how they will be of use to the court. In the
    absence of a draft factum setting out what those submissions will be, I can
    only speculate. In this case, the responding factum filed by Mr. Huang in
    response to Fraser Hillarys Limiteds appeal contains approximately 30
    paragraphs on the issue of retrospectivity. I am not satisfied that
    Ecojustices participation on this issue will materially assist the court.

(c)

Useful contribution without causing
    injustice

[12]

As to the third factor, I am prepared to assume,
    without deciding, that Ecojustice has the requisite experience and expertise to
    assist the court on the hearing of this appeal.

[13]

However, I am not satisfied that the proposed
    intervention would assist the court in any meaningful way. As Fraser Hillarys
    Limited demonstrates in its responding factum on the motion to intervene, many
    of Ecojustices submissions on the common law causes of action simply recast the
    submissions made by the parties themselves. For the reasons set out above, the
    submissions of Ecojustice on the retrospective application of s. 99(2) of the
EPA

will not materially assist the court.

[14]

It seems to me that it would be unfair to
    require the respondents on the appeal to address the interveners perspectives
    on the issue, without a demonstration that the perspective will materially
    assist the court.

[15]

There is an additional concern about injustice.
    The appeal is scheduled to be heard in approximately seven weeks. The proposed
    intervener has not filed a draft factum outlining the submissions it would make
    if permitted to intervene, but says it will file its factum within the next two
    weeks. I cannot judge how long it will take the respondents to respond, but
    they will clearly be required to respond to new arguments going beyond the
    fairly narrow scope of the appeal. It could be necessary to adjourn the appeal,
    something that has already occurred once. This would cause additional prejudice
    to the parties.

Order

[16]

For these reasons, I dismiss the motion. This is
    not an appropriate case for the award of costs.

G.R.
    Strathy C.J.O.


