French v. Chrysler Canada Inc. et al., 2015 ONCA 104

• Judge: Feldman, Simmons and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 14, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 104;(2015), 330 O.A.C. 195 (CA)

French v. Chrysler Can. Inc. (2015), 330 O.A.C. 195 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. FE.005

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) v. Chrysler Canada Inc., Benchmark Real Estate Services Canada Inc., Charles Brudenell, George Murray Shipley & Bell, Frank Fazio, RSJ Holdings Inc. and The D'Andrea 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)

(C59238; 2015 ONCA 104)

Indexed As: French v. Chrysler Canada Inc. et al.

Ontario Court of Appeal

Feldman, Simmons and Pardu, JJ.A.

February 13, 2015.

Summary:

A parcel of land was operated as a foundry and asbestos insulation producer for several decades, resulting in significant contamination. The appellants purchased the land in 1999. They sued a former owner of the land (Chrysler) for negligence in decommissioning the property and failing to remediate, negligent misstatement, and the creation of a stigma to the land. The appellants moved to amend their statement of claim to add a claim against Chrysler for nuisance by failing to remediate, causing an unreasonable interference with the use and enjoyment of the land. The motion judge denied the motion. The appellants appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - [See Torts - Topic 1002 ].

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See Torts - Topic 1002 ].

Torts - Topic 1002

Nuisance - General principles and definitions - Elements of - A parcel of land was operated as a foundry and asbestos insulation producer for several decades, resulting in significant contamination - The appellants purchased the land in 1999 - They sued a former owner of the land (Chrysler) for, inter alia, negligence in decommissioning the property and failing to remediate it - The appellants moved to amend their statement of claim to add a claim against Chrysler for nuisance by failing to remediate - The motion judge denied the motion on the grounds that the interference with use and enjoyment of a claimant's land had to originate outside the claimant's land in order to form a tenable nuisance claim - The Ontario Court of Appeal dismissed the appellants' appeal, stating "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 plaintiff's 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."

Cases Noticed:

Morguard Real Estate Investment Trust v. ERM Canada Corp. et al., [2012] O.T.C. Uned. 4195; 68 C.E.L.R.(3d) 175; 2012 ONSC 4195, refd to. [para. 4].

Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al. (2007), 258 N.S.R.(2d) 41; 824 A.P.R. 41; 2007 NSCA 92, refd to. [para. 5].

Marks v. Ottawa (City) et al. (2011), 280 O.A.C. 251; 2011 ONCA 248, refd to. [para. 7].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 7].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 7].

Authors and Works Noticed:

Linden, Allen M., and Feldthusen, Bruce, Halsbury's Laws of Canada: Torts (2012), p. 243 [para. 3].

Counsel:

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.

This appeal was heard on January 14, 2015, before Feldman, Simmons and Pardu, JJ.A., of the Ontario Court of Appeal, who delivered the following endorsement on February 13, 2015.