



COURT OF APPEAL FOR ONTARIO

CITATION: 1317424 Ontario Inc., v. Chrysler Canada Inc., 2015
    ONCA 104

DATE: 20150213

DOCKET: C59238

Feldman, Simmons and Pardu JJ.A.

BETWEEN

Mark French, a Trustee of the Chippewas of the
    Thames Land Claim Trust, on behalf of 1317424 Ontario Inc. and Mark French, a
    Trustee of the Chippewas of the Thames Land Claim Trust

Plaintiffs (Appellants)

and

Chrysler Canada Inc.
, Benchmark Real
    Estate Services Canada Inc., Charles Brudenell, George Murray Shipley &
    Bell, Frank Fazio, RSJ Holdings Inc. and The DAndrea Group Inc.

Defendants (
Respondent
)

and

176695 Canada Inc., Chester Engineers, Inc.
    (a.k.a. The Chester Engineers) and N.A. Water Systems, LLC

Third Parties

Raymond F. Leach and Michael A. Polvere, for the
    appellants

Barry Bresner, for the respondent, Chrysler Canada Inc.

Jennifer Fairfax and Patrick G. Welsh, for the third
    party N.A. Water Systems, LLC

Heard: January 14, 2015

On appeal from the order of Justice Thomas A. Heeney of
    the Superior Court of Justice, dated August 6, 2014, with reasons reported at
    2014 ONSC 4573, 86 C.E.L.R. (3d) 139.

ENDORSEMENT

[1]

The appellants sought to amend their statement of claim to include a
    claim in nuisance. The motion was dismissed on the ground that on the facts
    pled, the claim in nuisance is not a viable claim in law. The appellants argue
    that the scope of nuisance is not finally settled, and that the claim should
    therefore be allowed to proceed. The specific issue is whether a claim in
    nuisance can be made when the nuisance emanates from the plaintiffs own land
    and not from outside that land.

[2]

The land in issue was operated as a foundry and asbestos insulation
    producer for several decades, resulting in significant contamination. It was
    acquired by Chrysler in 1987 and decommissioned to then-current standards. In
    1989, Chrysler sold the land to The DAndrea Group Inc., with a certificate
    from the Ministry of the Environment confirming that the land had been
    decommissioned in accordance with existing regulatory requirements. The
    DAndrea Group in turn sold the land to the appellants in 1999. The appellants
    suit against Chrysler is for negligence in decommissioning the property and
    failing to remediate it, negligent misstatement that Chrysler had properly
    remediated the land, and the creation of a stigma to the land.

[3]

The appellants later sought to amend to add a claim against Chrysler for
    nuisance by failing to remediate, causing an unreasonable interference with the
    use and enjoyment of the land. That amendment was denied by the motion judge. He
    concluded that, to form a tenable nuisance claim, the interference with the use
    and enjoyment of the claimants land must originate outside the plaintiffs
    land. See the Honourable Allen M. Linden and Bruce Feldthusen,
Halsburys
    Laws of Canada: Torts
, 2012 Reissue (Markham: LexisNexis Canada Inc.,
    2012), at p. 243. One cannot therefore have a claim in nuisance for the
    unreasonable use of ones own land.

[4]

The appellants relied on
Morguard Real Estate Investment Turst v.
    ERM Canada Corp
., 2012 ONSC 4195, 68 C.E.L.R. (3d) 175,

a recent pleadings
    decision of the Ontario Superior Court of Justice. In that case, three property
    owners hired a company to remediate contamination on their properties. The
    contamination originated on one of the properties and spread onto the two
    others. Two of the owners, including the owner of the originally contaminated
    property, then sued the remediation company in nuisance for failing to
    remediate the land. The issue addressed by the court was whether a remediation
    company that did not own or occupy land adjoining the plaintiffs land could be
    sued in nuisance. The court declined to strike the nuisance claim on that
    basis. However, in so doing, the court did not address the fact that one of the
    claimants was the owner of the offending property itself and therefore the law
    of nuisance could not apply. We agree with the motion judge in this case that
Morguard
does not assist the appellants.

[5]

The issue of whether a nuisance must emanate from anothers land was
    recently specifically addressed by the Nova Scotia Court of Appeal in
W.
    Eric Whebby Ltd. v. Doug Boehner Trucking & Excavation Ltd
., 2007 NSCA
    92, 258 N.S.R. (2d) 41.

[6]

In
Whebby
, at para. 128, Cromwell J.A. (as he then was) stated
    that regardless of who causes the nuisance, the interference with the
    plaintiffs land must be indirect and not direct, meaning it must originate
    elsewhere than on the plaintiffs land. He explained, at para. 131, that this
    distinction is not a mere legal technicality, but that it reflects

the role of the modern law of nuisance as a means of
    reconciling conflicting interests in connection with competing uses of land:
    see
Royal Anne Hotel
[
Co. v. Ashcroft
, [1979] 2 W.W.R. 462
    (B.C.C.A).] at 467;
Tock v St. Johns Metropolitan Area Board
, [1989]
    2 S.C.R. 1180
per
LaForest, J. at 1196. Before there can be
    conflicting interests in connection with the use of land, there must be uses of
    different lands which come into conflict.

[7]

In
Marks v. Ottawa (City)
, 2011 ONCA 248, 280 O.A.C. 251, at
    para. 19, this court set out the four factors to consider on a motion to amend
    a pleading under rule 26.01 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. One factor is that an amendment will not be allowed if it would
    have been struck out had it been originally pleaded. Applying the analysis from
Hunt v. Carey Canada Inc
., [1990] 2 S.C.R. 959, a claim will be struck
    out under rule 21.01(1)(b) if it has no reasonable chance of success. See also
R.
    v. Imperial Tobacco Canada Ltd
., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras.
    20-25.

[8]

The appellants are effectively arguing that they should be entitled to
    seek to fundamentally change the law of nuisance. That would be a tenable
    position if, for example, the appellants sought to expand the tort to a new
    fact situation not before considered. However, the tort of nuisance has certain
    defined, long-standing characteristics, which courts have considered to be essential
    to the tort. In particular, the alleged nuisance must originate somewhere other
    than on the plaintiffs land. In this case, the appellants seek to establish
    the tort where that essential characteristic is missing. Their claim has no
    reasonable chance of success.

[9]

The appeal is therefore dismissed, with costs fixed in the amount of
    $12,000 inclusive of disbursements and HST.

K.
    Feldman J.A.

J.
    Simmons J.A.

G.
    Pardu J.A.


