



COURT OF APPEAL FOR ONTARIO

CITATION:
Albert
    Bloom Limited v. London Transit Commission, 2021 ONCA 74

DATE: 20210204

DOCKET: C68272

Lauwers, Hourigan and Brown
    JJ.A.

BETWEEN

Albert Bloom Limited

Plaintiff (Respondent)

and

London Transit
    Commission
, 1571177 Ontario Limited, 1111846
    Ontario Limited, Ramsden Industries Limited,
Eaton Industries (Canada)
    Company
and The Corporation of the City of London

Defendants (
Appellant
/
Respondent
)

Rosalind H. Cooper and Daniel Richer,
    for the appellant

Robert Frank and Ted Brook, for the
    respondent

Heard: January 22, 2021, by video conference

On appeal from the order of Justice Alissa K. Mitchell of the
    Superior Court of Justice, dated March 6, 2020, with reasons reported at 2020
    ONSC 1413.

Hourigan
    J.A.


I.

Introduction

[1]

The motion judge struck London Transit
    Commissions (LTC) third party claim against Eaton Industries (Canada)
    Company (Eaton) on the basis that it is statute-barred pursuant to the
Limitations
    Act
, 2002, S.O. 2002, c. 24, Sched. B. LTC appeals that order. Its
    principal arguments are that the motion judge erred in her findings regarding
    when it had actual knowledge of the claim and when it should have had knowledge
    of the claim.

[2]

I would not give effect to the grounds of appeal
    advanced by LTC. In comprehensive reasons, the motion judge explained her
    findings regarding when LTC knew or should have known about a claim against
    Eaton for contribution and indemnity and other related claims. With one
    inconsequential exception, I concur with those reasons. Accordingly, I would
    dismiss the appeal.


II.

Facts

[3]

The properties owned by the plaintiff, Albert
    Bloom Limited (Albert Bloom), LTC and Ramsden Industries Limited and its
    affiliated companies (Ramsden), are located in a semi-industrial/semi-residential
    area in London, Ontario. The LTC property is situated to the east of Albert
    Blooms property, and the Ramsden properties are located to the southwest of
    Albert Blooms property. The groundwater flow across this area is generally in
    a westerly direction, from the LTC property toward the Albert Bloom and Ramsden
    properties.

[4]

The LTC property consists of three lots, being
    17, 18 and 19 of Registered Plan 50. In 1949, the City of London conveyed lots
    17 and 18 to Eatons corporate predecessor. While Eaton changed its name a
    number of times over the years, I will refer to all relevant corporate
    predecessors simply as Eaton. During the period 1949 to 1973, Eaton carried on
    the business of manufacturing automotive parts. In 1973, Eaton transferred lots
    17 and 18 to the City of London. That same year, the City of London transferred
    title to LTC, and it has operated a transit system since that time.

[5]

In March 2011, Albert Bloom notified Ramsden
    about the existence of Trichloroethylene (TCE) contamination on its property
    and provided Ramsden with two environmental reports from its environmental
    consultant.  Ramsden investigated its properties and received a Phase II ESA
    Report from its environmental consultant identifying TCE contamination in
    concentrations above applicable standards. The report concluded that the LTC
    property was a potential source of the TCE contamination due in part to the
    westerly groundwater flow and historical automotive parts manufacturing
    operations carried out on the LTC property by Eaton.

[6]

After receiving Ramsdens Phase II ESA Report,
    Albert Bloom undertook further investigations. In November 2011, Albert Blooms
    environmental consultant issued a letter reporting that it had reviewed the
    data and agreed with Ramsdens Phase II ESA Report that the LTC property was a
    potential source of the alleged contamination.

[7]

On February 3, 2012, the lawyer for Albert Bloom
    advised LTC that it had discovered environmental contamination potentially
    migrating from LTCs property to its clients property. Albert Bloom provided
    the LTC with five environmental reports produced by two environmental
    consultants. Three of those reports identified Eaton, along with other
    potential sources, as being possibly responsible for the contamination.

[8]

On April 30, 2013, Albert Blooms lawyer
    delivered a notice of action and statement of claim to LTC and provided the LTC
    with an additional environmental report from a third environmental consultant
    to support its claim. The statement of claim was formally served on LTC on May
    22, 2013.

[9]

On December 19, 2013, Albert Bloom provided LTC
    with an environmental report from a fourth environmental consultant supporting
    the claim against LTC.

[10]

From 2012 to 2014, Albert Bloom repeatedly asked
    LTC to investigate its property. LTC refused to do so or to permit Albert Bloom
    to investigate.

[11]

In January 2014, LTC filed its statement of
    defence and crossclaim.  In that document, LTC denied responsibility for the
    alleged contamination and claimed over against its co-defendants.  It further
    pleaded, in the alternative, that:

...if the [LTC property] in any way
    contributed to the alleged contamination of the [Albert Bloom property], which
    is not admitted but specifically denied, then it was caused by the prior owner
    of the [LTC property], the details of which LTC had no involvement in and has
    no knowledge of.

[12]

Albert Bloom gave LTC an ultimatum in January
    2014 to investigate its property, or it would contact the Ministry of the
    Environment and Climate Change (the MOE) regarding the alleged contamination.
    LTC maintained its refusal to investigate, refusing even to commission a
    non-intrusive Phase I ESA Report. Albert Blooms lawyer then contacted the MOE.
    It launched an investigation in the summer of 2014 and requested that LTC
    prepare a Phase I ESA Report concerning its property. The MOE also requested
    that LTC grant Albert Bloom access to its property to install monitoring wells
    to investigate the alleged contamination.

[13]

Between December 2014 and March 2015, in
    response to MOE requests, LTC undertook testing on its property and determined
    that Eaton had operated a sludge pit on the property before 1973.

[14]

On March 16, 2016, LTC commenced a third party
    claim against Eaton for damages and contribution and indemnity, alleging that
    Eaton had contaminated the LTC property between 1949 and 1973. Eaton moved for
    summary judgment, asserting that LTC's claim was statute-barred by operation of
    the
Limitations Act
.

[15]

The motion judge granted summary judgment and
    dismissed LTCs third party claim against Eaton. She concluded that LTC had
    actual knowledge of the matters in s. 5(1)(a) of the
Limitations Act
with respect to the claims against Eaton by no later than May 22, 2013.

[16]

Despite finding that LTC had actual knowledge,
    the motion judge also considered the parties argument about when LTC ought to
    have known of the matters relating to its claim against Eaton. She concluded
    that LTC also ought to have known that it had a claim by May 22, 2013.

[17]

According to the motion judge, the fact that LTC
    had asserted claims in nuisance and negligence against Eaton did not create
    separate causes of action with different limitation periods.  She reasoned that
    LTC's claims all arose from the same alleged tortious conduct by Eaton before
    1973.


III.

Analysis

[18]

On appeal, LTC principally relies on
Crombie
    Property Holdings Limited v. McColl-Frontenac Inc.
, 2017 ONCA 16, 406
    D.L.R. (4th) 252, leave to appeal refused, [2017] S.C.C.A. No. 85, to argue
    that actual knowledge of the possibility of a claim does not equate to actual
    knowledge of a claim. LTCs position is that its suspicion of a claim against
    Eaton was only confirmed by subsurface testing in March 2015.

[19]

With respect to constructive knowledge, LTC
    argues that it acted diligently to retain an environmental consultant and legal
    counsel. It submits that it relied on its consultants opinion that the contamination
    was not spreading from the LTC property until later testing revealed this was
    an error. Further, it claims that its reference to a prior owner in its
    statement of defence and counterclaim was boilerplate language not denoting
    knowledge.

[20]

LTC also submits that the motion judge erred in
    her analysis of the claims other than for contribution and indemnity. It argues
    that these additional claims are either continuing claims for which the
    limitation period has not expired or their limitation periods commenced on
    different dates than the claim for contribution and indemnity.

[21]

This section of the reasons will briefly review
    the law regarding limitation periods in the context of claims for contribution
    and indemnity, then address the issues of actual and constructive knowledge,
    followed by a consideration of the other grounds of appeal.

(a)

Claims for Contribution and Indemnity

[22]

Claims for contribution and indemnity are
    governed by s. 18 of the
Limitations Act
, which provides:

18 (1) For the purposes of subsection
    5 (2) and section 15, in the case of a claim by one alleged wrongdoer against
    another for contribution and indemnity, the day on which the first alleged
    wrongdoer was served with the claim in respect of which contribution and
    indemnity is sought shall be deemed to be the day the act or omission on which
    that alleged wrongdoers claim is based took place.

(2) Subsection (1) applies whether
    the right to contribution and indemnity arises in respect of a tort or
    otherwise.

[23]

An absolute two-year limitation period running
    from the date on which the first alleged wrongdoer was served with the claim is
    not established by s. 18. Instead, as described by Paciocco J.A. in Mega
    International
Commercial Bank (Canada) v. Yung
, 2018 ONCA 429, 141
    O.R. (3d) 81, at para. 74, s. 18 operates as follows:

The two-year limitation period prescribed by
    ss. 4, 5(2), and 18 for contribution and indemnity claims presumptively begins
    on the date of service of a claim in respect of which contribution and
    indemnity is sought. That presumptive limitation period start date, however,
    can be rebutted by the discoverability principles prescribed in s. 5 of the
    Limitations Act, 2002.

[24]

It is worth reiterating that once the second
    anniversary of the service of the claim passes, the onus shifts to the party
    seeking contribution and indemnity to establish why its claim was not
    discoverable. In the case at bar, as will be discussed, it appears, based on
    some of the arguments being advanced on the appeal, there was some confusion
    regarding who has the onus.

(b)

Actual Knowledge

[25]

The motion judge undertook an examination of the
    matters in s. 5(1)(a) of the
Limitations Act
. She found that LTC first
    knew that the injury or loss occurred and was caused or contributed by an act
    or omission on April 30, 2013, when it was provided with the issued notice of
    action and the statement of claim. According to the motion judge, the day on
    which LTC first knew that Eaton caused the loss or damage was February 3, 2012,
    when it was provided with environmental reports identifying the automotive
    manufacturing operations carried on by Eaton as a possible source of
    contamination. Further, she held that LTC learned that a proceeding against
    Eaton would be appropriate on May 22, 2013, when Albert Blooms statement of
    claim was formally served in the main action.

[26]

LTC argues that the motion judge erred in her
    application of s. 5(1)(a) by distinguishing
Crombie
on a factual basis
    and equating knowledge that its property was a potential source of
    contamination with the knowledge that it was the source of the contamination. I
    would not give effect to these submissions.

[27]

LTCs argument on this issue is internally
    inconsistent. On the one hand, it submits that determining the date of actual
    knowledge of the matters in s. 5(1)(a) is a fact-specific exercise. On the
    other hand, it says that
Crombie
establishes a general rule that
    actual knowledge of contamination does not arise in environmental claims until
    subsurface testing has been carried out. I accept that the former submission is
    correct. The latter submission about a general rule being established is
    erroneous. It is necessary to review the facts of
Crombie
to
    understand why I reach this conclusion.

[28]

The facts of
Crombie
are readily
    distinguishable from the case at bar. There the claim arose from the purchase
    by the plaintiff of a contaminated property. The acquisition was one of 22
    properties acquired as part of a single commercial transaction. Regarding the
    property at issue, the most recent environmental information the plaintiff had
    at the time of the purchase was contained in a Phase I report (
i.e.
, a
    non-invasive report) from an environmental consultant. The consultant completed
    a Phase I report for each of the 22 properties. In the report concerning the
    property in issue, the consultant reviewed historical environmental reports
    which had done soil and groundwater sampling. One of these reports concluded
    that the potential contamination was not a significant environmental concern,
    and that no further environmental assessment was warranted. Nevertheless, the
    consultant recommended a Phase II report to further evaluate soil and
    groundwater conditions. The plaintiff complied and pursued further testing. It
    commenced its action within two years of receiving the draft Phase II report that
    contained test results that showed that petroleum hydrocarbons in certain soil
    and groundwater samples exceeded MOE site condition standards.

[29]

It was in this context that the court in
Crombie
stated, at para. 42, that [t]he subsurface testing, while confirmatory of the
    appellants suspicions, was the mechanism by which the appellant acquired
    actual knowledge of the contamination. LTC's submission that the court was
    establishing a single standard about when the limitation clock starts in
    environmental contamination claims is incorrect. The court did not purport to
    create such a general rule.

[30]

A comparison of the facts of the case at bar to
    the facts of
Crombie
demonstrates why it is folly to try to establish
    a general rule as suggested by LTC. In this case, as of May 22, 2013, LTC had
    six off-site environmental reports from three different consultants. Those
    reports all identified LTCs property as a potential source of contamination,
    and the manufacturing operations of Eatons predecessors were specifically
    referenced in four of these reports as an environmental concern. It was also
    known that the groundwater flowed in a westerly direction. Further, LTC was
    aware that Eaton operated an auto parts manufacturing facility on the site, and
    at the time of that operation, TCE was commonly used in the industry.
    Substratum testing was not necessary in these circumstances to establish actual
    knowledge of contamination.

[31]

To be clear, the determination of when a
    claimant obtains actual knowledge of a claim is case-specific. Little is to be
    gained from comparing the unique circumstances of one case to another. There is
    no bright-line test that establishes when a party has actual knowledge of a
    claim. Instead, the totality of factual circumstances will dictate how and when
    a claimant obtains actual knowledge. In the present case, the motion judge
    undertook a detailed analysis of the factual circumstances. The evidence she
    relied on was uncontested, and I do not understand LTC to be arguing that the
    motion judge committed any palpable and overriding errors of fact.

[32]

There is another unique circumstance in this
    case that supports the motion judges finding regarding actual knowledge. It is
    the plea in the statement of defence and crossclaim that the contamination was
    caused by a previous owner of the LTC property. That fact clearly distinguishes
    this case from
Crombie
, where there was no such plea.

[33]

On the motion and this appeal, LTC attempts to
    explain away that pleading: it was just a standard pleading and did not
    reflect its actual state of knowledge at the time of the filing of the
    statement of defence and crossclaim. However, the evidence that counsel had
    informed the affiant in the affidavit filed by LTC that this was a standard
    pleading was double hearsay. Contrary to what the affiant stated in her
    affidavit, on cross-examination, she testified that she had never been provided
    with this information by LTCs counsel. In fact, she had received the
    information from her predecessor at LTC, who apparently was told the information
    by legal counsel. This evidence was therefore inadmissible on the motion.

[34]

LTC asserts, [t]here was absolutely no evidence
    on the record before the Motions Judge to suggest that this pleading was other
    than a boilerplate pleading commonly set out in environmental defences without
    any factual knowledge attributable to LTC : Factum, para. 27.  This submission
    reflects a fundamental misunderstanding of the onus on the motion. LTCs onus
    was not met by asserting that there was no evidence that this was not a
    boilerplate pleading. LTC had an obligation to adduce compelling and admissible
    evidence that it was boilerplate and thus could be ignored. It failed to adduce
    that evidence.

[35]

On this record, I see no error in the motion
    judges conclusion regarding when LTC acquired actual knowledge of its claim.

(c)

Constructive Knowledge

[36]

The motion judge also found that LTC ought to
    have known that it had a claim against Eaton by May 22, 2013. This finding was
    based on a number of facts. First, LTC was in possession by February 2012 of
    environmental reports that identified its property as a potential source of
    contamination, some of which also indicated that Eaton operations were
    associated with TCE. Second, Eatons environmental consultant opined that the
    reports, taken together, contained sufficient information to identify the LTC
    property as a likely source of contamination. Third, LTCs co-defendant,
    Ramsden, conducted a more diligent investigation immediately upon receipt of
    environmental reports from the plaintiff in 2011. Fourth, within months of
    launching its own investigation, LTC obtained results consistent with the
    results of the plaintiffs and Ramsdens consultants obtained years earlier.
    Fifth, LTC had information available to it as to the nature of the operations
    undertaken by its predecessors in title on the LTC property.

[37]

Based on all of the above, the motion judge
    found that LTC did not act with the due diligence of the reasonable person with
    its abilities in this cases circumstances. She emphasized that, unlike
    Ramsden, LTC refused to investigate the alleged contamination until it was
    directed to do so by the MOE in October 2014. The motion judge found that LTC
    was willfully blind and failed to take reasonable steps to investigate the
    available facts. LTCs contention that it acted reasonably in not investigating
    because it was following its environmental consultants advice was rejected. 
    Further, the motion judge observed that LTC knew their environmental consultant
    had done nothing more than review the reports provided and did not conduct an
    independent investigation.

[38]

LTC does not dispute that it had a due diligence
    obligation to investigate its claim against Eaton in the circumstances of this
    case. This was a sensible concession, because it is well established in this
    courts jurisprudence that when the due diligence obligation has been
    triggered, the party with the obligation (LTC) has a duty to investigate and
    the limitation period will not be tolled while it sits idle:
Longo v.
    MacLaren Art Centre
, 2014 ONCA 526, 323 O.A.C. 246, at para. 42.

[39]

The onus was on LTC to adduce admissible
    evidence that it took the necessary due diligence steps in the circumstances.
    It failed to do so. On the motion and this appeal, LTC asserts that it relied
    on the advice given by its environmental consultant. The motion judge found
    that the evidence regarding the advice constituted inadmissible hearsay and
    refused to give it any weight. There is nothing in LTCs factum on the appeal
    that challenges that ruling. It is unclear what LTC expects this court to do
    about the motion judges rejection of this evidence. In any event, I see no
    error in the motion judges analysis on the point.  Thus, in this court, as in
    the court below, there is no admissible evidence regarding the advice given to
    LTC by its environmental consultant.

[40]

In her oral submissions, counsel for LTC
    submitted that regardless of the content of the advice received, the due
    diligence obligation was fully met by retaining counsel and environmental
    consultants. I do not accept that submission. The due diligence obligation
    imposes a heavier burden than simply hiring professional advisors. The proof of
    due diligence requires more detailed information than a simple assertion. The
    particulars of the information and advice provided to and by the consultant
    must be adduced to enable a court to assess whether the actions were reasonable
    in the circumstances. If the law were otherwise, a putative claimant could, for
    example, insulate itself from the operation of a limitation period by simply
    hiring a lawyer and then asserting solicitor-client privilege.

[41]

LTC is also critical of the motion judges
    reliance on Ramsdens activities in considering whether LTC acted reasonably.
    It argues that she erred in relying on Ramsdens conduct because there is no
    evidence before the court about what motivated its decision to undertake
    testing. I disagree. The record established that Ramsden tested its property
    after it was contacted by Albert Blooms lawyer and that it shared the test
    results with Albert Bloom. It was a reasonable inference that Ramsden did the
    testing because of the information it received from Albert Bloom. If there was
    some other reason motivating Ramsdens testing activities, LTC had the onus of
    putting that evidence before the court. LTC did not do so, and it is not open
    to it to rely on this alleged lacuna in the evidence.

[42]

I note as well that LTC also cannot rely on the
    analysis in
Crombie
regarding constructive knowledge. In that case,
    this court found that in reaching her conclusion that the claim was
    discoverable, the motion judge ignored the plaintiff's particular
    circumstances, including its waiver of conditions in the commercial deal and
    the fact that the property sale in issue was part of a multi-property
    transaction. There is no basis in the case at bar to suggest that the motion
    judge ignored any relevant circumstances.

[43]

In summary, the motion judges analysis on the
    issue of constructive knowledge is correct. LTC has failed to meet its onus of
    rebutting the s. 18 presumption.

(d)

Ultimate Limitation Period

[44]

In distinguishing
Crombie
at para. 65 of
    her reasons, the motion judge observed that any claim other than a claim by LTC
    against Eaton for contribution and indemnity was statute-barred by operation of
    the absolute limitation period of 15 years in the
Limitations Act
. As
    Eaton concedes, that was an error on the part of the motion judge.  Section 17
    of the
Limitations Act
provides that there is no limitation period for
    undiscovered environmental claims.  LTC does not explicitly identify how this
    error detracts from the motion judges analysis. In my view, it is
    inconsequential.

(e)

Section 99 of the
Environmental
    Protection Act

[45]

During the course of her oral argument, counsel
    for LTC stated that it has a claim against Eaton pursuant to s. 99 of the
Environmental
    Protection Act
, R.S.O. 1990, c. E.19 (EPA).  LTC submitted that the
    limitation period for this s. 99 claim had not expired when it commenced its
    third party claim.

[46]

This argument was not raised before the motion
    judge and is found nowhere in LTCs factum filed on this appeal. The general
    rule is that appellate courts will not entertain entirely new issues on appeal.
    The rationale for the rule is that it is unfair to spring a new argument upon a
    party on appeal when evidence might have been led in the court below had it
    been known that the matter would be an issue on appeal. The burden is on the
    appellant advancing a new argument to persuade the court that the new issue
    should be heard. Ultimately, the decision of whether to grant leave to allow a
    new argument is a discretionary decision guided by balancing the interests of
    justice as they affect all parties:
Kaiman v. Graham
, 2009 ONCA 77,
    245 O.A.C. 130, at para. 18;
Vellenga v. Boersma
, 2020 ONCA 537, 152
    O.R. (3d) 305, at paras. 42-43.

[47]

I do not believe that it is in the interests of
    justice to consider this new argument on this appeal. This court is primarily
    an error-correcting court. Absent compelling reasons, it will not consider new
    arguments raised for the first time on appeal.  No compelling reasons are
    evident in this case. Further, entertaining this argument would unfairly
    deprive Eaton of the opportunity to respond in the court below and in its
    written arguments before this court.

[48]

In any event, I am not satisfied that LTC
    asserted a claim under s.99 of the EPA. If LTC really intended to make an s. 99
    claim, then it would have set the claim out in detail in its third party
    pleading. Counsel for LTC, who did not draft the third party claim, points to
    the general plea relying on the EPA. She admits that there is no plea regarding
    s. 99 specifically, but submits that the general reference to the statue can
    only be interpreted as being an s. 99 claim. This argument does not persuade
    me. The purpose of pleadings is to define issues and put all parties on notice
    regarding the precise subject matter of a proceeding. The oblique reference to
    the EPA does not fulfill the purpose of asserting an s. 99 claim. Further,
    there is nothing in LTC's factum on the appeal that suggests that it has an s.
    99 claim.

(f)

Continuing Tort

[49]

LTC also argues that the motion judge erred when
    she concluded that the third party claim against Eaton was not founded on a
    continuing tort. It submits that LTCs Third Party Claim, like the Main
    Action, is based on a continuing cause of action and a new cause of action
    arises each day that there is a continuing tort (i.e. ongoing migration of
    contamination). In other words, because the main action purportedly alleges
    that LTCs property continues to damage its neighbours property through
    ongoing contaminant migration, Eaton is engaged in a continuous tort against
    LTC.

[50]

This position mischaracterizes the nature of
    LTCs claim against Eaton. LTCs claim against Eaton is that of a current
    property owner against a former property owner. Even if LTCs property
    continued releasing contaminants onto its neighbours property, such that LTC
    was committing a continuous tort relative to its neighbours, that would not
    establish that Eaton has engaged in a continuous tort relative to LTC. As
    Epstein J., as she then was,  explained in
Starline Entertainment Centre
    Inc. v. Ciccarelli
, (1995) 25 O.R. (3d) 765 (S.C), at p. 31, a continuing
    tort does not include continuance of all the effects or repercussions of the
    defendants conduct. It has been explained as the continuance of the act which
    caused the damage. For a claim to be continuing, the legal injury itself
    must continue, not merely the ill effect of the prior legal injury:
RVB
    Managements Ltd. v. Rocky Mountain House (Town)
, 2015 ABCA 188, 19 Alta.
    L.R. (6th) 195, at para. 18.

[51]

In LTCs third party claim, the legal injury or
    act that allegedly caused the damage to LTC was Eatons manufacturing
    activities and improper waste management practices, which ended in 1973. In the
    main claim against LTC, the legal injury or act that allegedly damaged the
    plaintiff was LTC allowing contaminants on its property to spread and damage
    neighbouring properties. The fact that the latter action may amount to a
    continuing tort does not transform LTCs claim against Eaton into a continuous
    tort.

[52]

The primary case relied on by the respondent,
Roberts
    v. City of Portage la Prairie
, [1971] S.C.R. 481, is distinguishable and
    supports this conclusion. In that case, the city constructed and continued to
    operate a sewage lagoon, which proved to be a nuisance. No similar continued
    operation of a tortious activity is alleged against Eaton.

(g)

Standalone Claims

[53]

LTC submits that the motion judge erred in
    rejecting its submission that it had so-called standalone claims that were not
    statute-barred.

[54]

LTC offers two reasons why these standalone
    claims are not statute-barred. First, it submits that one of its claims was
    more recently discovered. Second, it asserts it has a continuous tort claim
    against Eaton as its former neighbour on lot 19.

[55]

The recently discovered claim is for
    reimbursement of expenses related to investigative work required by the MOE for
    other properties in the area. LTC argues that it could not have known about
    this claim until March 27, 2015, when it was requested to do the work by the
    MOE. Therefore, it submits that the limitation period for the claim for these
    expenses could not begin to run until that date.

[56]

The problem with this submission is that it
    conflates the concept of damage, being the loss required to make out certain
    causes of action, with the concept of damages, which is the monetary measure
    of the extent of the loss:
Hamilton (City) v. Metcalfe & Mansfield
    Capital Corporation
, 2012 ONCA 156, 290 O.A.C. 42, at para. 54.  All LTC
    had to discover to start the limitation period was damage caused by Eatons
    manufacturing operations and waste management practices. As the Supreme Court
    held in
Peixeiro v. Haberman
, [1997] 3 S.C.R. 549, at para. 18, the
    accrual of a cause of action does not await a full understanding of the extent
    or type of damage. See also Hamilton, at para. 61 and
Brozmanova v. Tarshis
,
    2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 35.

[57]

Further, regarding the claim for investigative
    costs, I note that in its statement of defence and crossclaim, LTC expressly
    pleads a claim for damages related to expenses relating to the investigation,
    testing, monitoring and remediation of the contamination. Clearly, as of
    January 2014, LTC knew it had a claim for expenses relating to investigative
    work, although it did not know the exact details of those expenses.

[58]

There is a final standalone claim that must be
    considered. LTC pleads in the third party claim that [c]ontamination migrated
    from one of Lots 17, 18 and 19 to the other Lots. Based on this plea, LTC
    submits that it has continuing causes of action in nuisance and negligence
    against Eaton (the former owner of lots 17 and 18) as a neighbour (the owner of
    lot 19). I would reject this argument for two reasons.

[59]

First, this submission was not raised in the
    court below, in LTCs factum filed on the appeal, or in LTCs counsels initial
    oral submissions. It was raised for the first time when counsel for LTC was
    making her reply submissions. Thus, in addition to the concerns discussed above
    regarding new arguments raised on appeal, we have the added problem that
    counsel for Eaton has had no opportunity to respond to this argument.

[60]

Second, assuming without deciding that such a
    claim could be asserted in these circumstances, there is no suggestion in the
    third party pleading that the migration is continuing.  On the contrary, in the
    paragraphs that reference migration between lots, the migration is referred to
    in the past tense. There is no reference to continuing migration between lots.
    Thus, this is not alleged to be a continuing tort. Accordingly, the limitation
    period expired on the second anniversary of the date on which LTC knew or ought
    to have known of the matters in s. 5(1)(a). For the reasons outlined above, I
    agree with the motion judge that the third party claim was issued more than two
    years after the date of LTCs actual or constructive knowledge of a claim
    against Eaton.


IV.

Disposition

[61]

I would dismiss the appeal and order that the
    appellant, LTC, pay Eaton its costs of the appeal in the agreed-upon,
    all-inclusive sum of $25,000.

Released: P.L. February 4, 2021

C.W. Hourigan J.A.

I agree. P. Lauwers J.A.

I agree. David Brown J.A.


