Plaintiffs' knowledge of the contamination did not invalidate their claims: court
The Ontario Superior Court of Justice has dismissed a motion to strike a lawsuit related to alleged environmental contamination of soil and groundwater at 65 Heward Avenue in Toronto, allowing the case to continue.
The plaintiffs, Heward Studio Investments Inc., sought damages and declarations of liability from multiple defendants, who are former owners of the property, for alleged contamination.
The defendants, excluding Akzo Nobel N.V. and certain inactive parties, sought to strike the plaintiffs’ amended statement of claim on the grounds that it disclosed no reasonable cause of action. They argued that the plaintiffs knew about the contamination when they purchased the property in 2018 and that any potential damages were accounted for in the purchase price. The defendants also cited insufficient details in the claim and the expiration of the limitation period as additional grounds for dismissal.
The plaintiffs alleged that the former owners caused or contributed to extensive contamination of the site due to historical industrial activities, including chemical and paint manufacturing, storage of hazardous substances, and use of storage tanks. The claim identified contaminants such as volatile organic compounds, petroleum hydrocarbons, and ammonia. The plaintiffs asserted negligence, strict liability, and breaches of Ontario’s Environmental Protection Act (EPA).
In dismissing the motion, the court ruled that filing a defence did not bar the defendants from bringing the motion to strike. The judge acknowledged the defendants' objections but found no undue delay, noting that the litigation was still in its early stages, with discovery yet to occur. Additionally, the court determined that the claim contained sufficient particulars to allow the case to proceed.
The Superior Court emphasized that a motion to strike requires meeting a high threshold; claims should only be struck if they are “plain and obvious” to have no chance of success. Here, the plaintiffs had set out material facts regarding the alleged contamination, its sources, and the implicated parties. The court noted that expert evidence would be necessary to assess whether the plaintiffs’ claims, including under the EPA, were sustainable.
Addressing the defendants' argument that the plaintiffs knowingly bought the property “as is,” the court rejected the notion that this alone invalidated the claim. The judge pointed out that the plaintiffs could still argue that the vendors or prior owners had ongoing duties to mitigate and notify about contamination. Ultimately, the court dismissed the defendants' motion to strike.
