Waste Not Wanted Inc. v. Canada, (1987) 11 F.T.R. 253 (TD)

• Judge: Collier, J.
• Court: Federal Court (Canada)
• Case Date: January 08, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1987), 11 F.T.R. 253 (TD)

Waste Not Wanted Inc. v. Can. (1987), 11 F.T.R. 253 (TD)

MLB headnote and full text

Waste Not Wanted Inc. (plaintiff) v. Her Majesty The Queen in Right of Canada, Minister of Energy, Mines & Resources, Atomic Energy of Canada Limited (defendants) and James Reginald Forde, Norma Marlene Forde, Eugenio Sarmiento, Corazon Sarmiento, John Langcaster, Donna Langcaster, Christos Sofos and Stauroula Sofos (intervenors)

(No. T-657-84)

Indexed As: Waste Not Wanted Inc. v. Canada

Federal Court of Canada

Trial Division

Collier, J.

June 15, 1987.

Summary:

The Federal Crown was going to dump soil contaminated by radioactive material on a particular site. Opponents of the site formed a corporation and assigned their individual rights to take legal action to the corporation. The corporation then applied for an injunction to restrain the Crown from dumping on the site.

The Federal Court of Canada, Trial Division, dismissed the corporation's action because it lacked status. The court however, in the event it was in error on the status issue, dealt with the case on the merits, and would have dismissed the corporation's case on the merits as well.

Administrative Law - Topic 2266

Natural justice - Duty of fairness - Procedural fairness - What constitutes - Pursuant to a memorandum of agreement, the Federal Crown intended to store soil contaminated by radioactive material on a site chosen by the Ontario government - The site was chosen without consultation with, or input from, persons living around the site - Individuals opposed to the site argued that there was a lack of procedural fairness by the Federal Crown and a breach of s. 7 of the Charter (principles of fundamental justice) - The Federal Court of Canada, Trial Division, examined the Federal Crown's involvement and held that there was no procedural unfairness on its part or breach of s. 7 - The court noted however, that it was the Province of Ontario and not the Federal Crown which chose the site - See paragraphs 147 to 194.

Choses in Action - Topic 283

What may be assigned - Benefits or rights not assignable - Legal rights - Private nuisance - The Federal Court of Canada, Trial Division, held that an individual's right to seek an injunction to stop a private nuisance is a personal action which is not assignable at law - The court therefore dismissed a corporation's suit for an injunction because of lack of standing, where the corporation's status depended upon legal rights assigned to it by individual members of the corporation - See paragraphs 45 to 70.

Civil Rights - Topic 3191

Trials, due process, fundamental justice and fair hearings - Administrative proceedings - Procedure not contrary to fundamental justice - [See Administrative Law - Topic 2266 above].

Estoppel - Topic 377

Res judicata - As a bar to subsequent proceedings - When applicable - Where final decision rendered - The plaintiff sought a permanent injunction against the defendants - The plaintiff obtained an interlocutory injunction pending a trial respecting the permanent injunction - At trial the defendants argued for the first time that the plaintiff lacked standing - The plaintiff argued that the defendants were estopped by res judicata from raising the standing issue, because the issue was not raised at the interlocutory injunction hearing - The Federal Court of Canada, Trial Division, held that res judicata did not apply where there was no "final" decision in the earlier litigation, but only an interlocutory decision in the same action - See paragraphs 31 to 43.

Pollution Control - Topic 8066

Land - Waste disposal - Authority - Jurisdiction - Radioactively contaminated soil - The Federal Court of Canada, Trial Division, held that the Federal government had statutory authority to dispose of soil contaminated by radioactive material pursuant to s. 10(1)(c) of the Atomic Energy Control Act, R.S.C. 1970, c. A-19 - See paragraphs 203 to 206.

Practice - Topic 204

Persons who can sue and be sued - Corporations - Proof of status - The Federal Crown intended to store soil contaminated by radioactive material on a particular site - Individual opponents of the site formed a corporation and assigned their right to take legal action to the corporation - The corporation applied for an injunction to stop the storage, alleging a private nuisance - The Federal Court of Canada, Trial Division, held that the corporation lacked status to complain of the nuisance, because the corporation itself neither owned or occupied land affected by the dumping or had a genuine commercial interest in the land - Furthermore the corporation could not rely on the assignments of the individual member's legal rights because the right to complain of a private nuisance is a personal action not assignable at law - See paragraphs 45 to 70.

Practice - Topic 204

Persons who can sue and be sued - Corporations - Proof of status - The Federal Crown was going to dump soil contaminated by radioactive material on a particular site - Individual opponents of the site formed a corporation and assigned their individual rights to take legal action to the corporation - The corporation sought an injunction to restrain the dumping, alleging, inter alia, breaches of federal and provincial statutes, lack of constitutional authority and Charter violations - The Federal Court of Canada, Trial Division, held that the corporation lacked status because the corporation itself was not affected by the dumping, but only the individual members of the corporation - See paragraphs 59 to 70.

Torts - Topic 1257

Nuisance - Particular nuisance - Radioactive contamination - The Federal Crown intended to store soil contaminated by radioactive material in a storage facility on a site chosen by the Province of Ontario - Individuals opposed to the site through a corporation formed by them, alleged that the storage facility was a private nuisance - The Federal Court of Canada, Trial Division, held that the facility would not create a nuisance, where the corporation could not prove by a preponderance of evidence that there would be an interference with the rights of the occupiers of the land around the storage facility - See paragraphs 71 to 142.

Torts - Topic 1520

Nuisance - Actions - Who may bring actions - Private nuisance - [See first Practice - Topic 204 above].

Cases Noticed:

Fenerty v. City of Halifax (1920), 50 D.L.R. 435 (N.S.C.A.), refd to. [para. 39].

Rockwell Developments Ltd. v. Newtonbrook Plaza Ltd., [1972] 3 O.R. 199, refd to. [para. 45].

Union Gas Co. of Canada Ltd. v. Brown (1968), 67 D.L.R.(2d) 44, agreed with [para. 50].

Martell v. Consett Iron Co. Ld., [1955] 1 Ch. 363, dist. [paras. 5256].

Trendtex Trading v. Credit Suisse, [1982] A.C. 679 (H.L.), dist. [para. 57].

Wiswell et al. v. Metro Winnipeg, [1965] S.C.R. 512, dist. [para. 60].

Palmer v. Nova Scotia Forest Industries, 60 N.S.R.(2d) 271; 128 A.P.R. 271; 2 D.L.R.(4th) 397 (N.S.S.C. T.D.), dist. [para. 61].

Thorson v. A.G. of Canada et al., [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 64].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85; 55 D.L.R.(3d) 632, refd to. [para. 64].

Borowski v. Minister of Justice of Canada and Minister of Finance of Canada, [1981] 2 S.C.R. 575; 39 N.R. 331, appld. [paras. 64, 65].

Rosenberg et al. v. Grand River Conservation Authority et al. (1976), 12 O.R.(2d) 496 (Ont. C.A.), refd to. [para. 67].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Attorney General of Ontario, [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 151].

Pacific Western Airlines Ltd. et al. v. The Queen et al. (1980), 105 D.L.R.(3d) 44, refd to. [para. 160].

R. v. Eldorado Nuclear Limited, [1983] 2 S.C.R. 551; 50 N.R. 120, refd to. [para. 199].

Statutes Noticed:

Atomic Energy Control Act, R.S.C. 1970, c. A-19, sect. 10(1)(c) [para. 205].

Canadian Charter of Rights and Freedoms, sect. 7 [paras. 59, 68, 189-194].

Environmental Assessment Act, R.S.O. 1980, c. 140, generally [paras. 154, 196].

Environmental Protection Act, R.S.O. 1980, c. 141, generally [paras. 154, 196].

Authors and Works Noticed:

Fleming, The Law of Torts (6th Ed. 1983), pp. 384 [paras. 47, 92]; 385 [para. 92]; 393 [para. 47].

Spencer, Bower and Turner, The Doctrine of Res Judicata (2nd Ed. 1969), pp. 1 [para. 39]; 132 [para. 42].

Counsel:

David Estrin and H. Dahme, for the plaintiff;

P. Evraire, Q.C., and A.C. Pennington, Q.C., for the defendants.

Solicitors of Record:

David Estrin, Toronto, Ontario, for the plaintiff;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendants.

This case was heard at Toronto, Ontario, on October 1-5, 9-12, 15-19, 31, November 12-16, 19-23, 26-27, December 3-7, 10-11, 1984, and January 8, 1985, before Collier, J., of the Federal Court of Canada, Trial Division. Written arguments were filed on June 5, 1985, however there was an application to reopen the case on February 7, 1986, and further evidence was heard on March 16, 1986. Collier, J., rendered the following judgment on June 15, 1987: