When your land is contaminated by a neighbour, proving that it happened may not always be enough. In Midwest v. Thordarson,2013 ONSC 775 the plaintiff Midwest Properties Ltd. (“Midwest”) purchased a property after obtaining a Phase I Environmental Assessment. Midwest never tested the property’s soil before purchasing it. However, when it later found out that it was contaminated, Midwest brought an action against Thorco Contracting Limited and John Thordarson (the owner of the adjacent property and its principal) (the “Defendants”) for breaching the Environmental Protection Act (the “EPA”) and for nuisance and negligence.

The Defendants used their property as a storage site for petroleum hydrocarbon waste since 1973 but argued at trial that the contamination  on Midwest’s property was not theirs. Pollak J. did not accept the Defendants’ argument that someone else caused the contamination on Midwest’s property.

With respect to the EPA claim against the Defendants, the Court found that since the Defendants were already being ordered to clean up pursuant to a Ministry of the Environment order under the EPA, Midwest was not entitled to also obtain damages for its own proposed remediation plan under section 99 of the EPA. Midwest was clearly “double-dipping” in this case by claiming the cost of a remediation plan when the Defendants had already been ordered to spend money to remediate. Further, it did not help that Midwest failed to introduce evidence of damages or losses arising from the Defendants’ contamination of its property.  This was also Midwest’s downfall with respect to its negligence claim.

The Court’s most interesting finding concerned Midwest’s claim that the Defendants’ contamination was a nuisance. The Court held  that Midwest could not be successful in this case because it could not show that the Defendants’ nuisance had occurred on the property after Midwest purchased it. To be successful in its nuisance claim, Midwest had to establish that the contamination had started or increased after it purchased the property. If the Defendants’ nuisance damage was already done when  Midwest took title, Midwest could not successfully claim against them for it later.

While some of the findings in Midwest clearly turned on the lack of evidence adduced by the plaintiff, the case also appears to underline the importance of establishing baseline conditions where nuisance is being alleged in the context of historical conditions. The means of establishing a baseline are generally more readily available in non-residential transactions.