Law Moot on Legal Liabilities associated with Contaminated Sites

Willms & Shier Environmental Law Moot will be held on March 4, 2017 at the Ontario Court of Appeal, Osgoode Hall, in Toronto.  The Law Moot may be of interested to professionals that deal with contaminated sites as the moot case is based on the 2015 Ontario Court of Appeal decision in Midwest Properties Ltd. v Thordarson.  This case sets an important precedent about legal liabilities associated with soil and groundwater contamination.

About the Moot

The Willms & Shier Environmental Law Moot, Canada’s first national moot court competition devoted to environmental law, is a joint initiative of Willms & Shier Environmental Lawyers LLP and Osgoode Hall Law School.  The Moot competition brings together law school students, leading environmental law practitioners and judges from all levels of court across Canada.

Program—A full day event on March 4, 2017, beginning with moot rounds early in the morning, semi-final and final rounds in the afternoon, and finishing with an evening networking event and the moot awards dinner in the Law Society of Upper Canada’s Convocation Hall

Schools —Law schools from coast to coast will register for the 2017 Moot

Distinguishing Feature — Students must argue both sides of the case. In the preliminary round, the students will start in their first match on one side of the argument, and then switch to the other side for their second match. This switching of sides requires students to exhibit mental agility under pressure.

The 2017 Moot Court Case

This year’s moot case is based on the 2015 Ontario Court of Appeal decision in Midwest Properties Ltd. v Thordarson. This case sets an important precedent about legal liabilities associated with soil and groundwater contamination.

Midwest Properties Ltd. and Thorco Contracting Limited own adjoining properties in an industrial area of Toronto. Thorco historically stored large volumes of petroleum hydrocarbons (“PHCs”) at its property.

Prior to its purchase of the property, Midwest obtained a Phase I Environmental Site Assessment of the property and was advised that further investigation was not required. Subsequently, Midwest discovered that PHC contamination had migrated to the Midwest property from the Thorco property. Midwest sued Thorco and Thorco’s principal, John Thordarson, relying upon three causes of action: (i) breach of Ontario’s Environmental Protection Act (“EPA”) section 99(2), (ii) nuisance, and (iii) negligence.

Between 1988 and 2011, Thorco was in breach of Orders issued by the Ministry of the Environment and Climate Change. In 2000, Thorco and Mr. Thordarson were convicted of offences under the EPA and a Court Order was issued requiring removal of waste. At the time of trial, the respondents were in breach of both Ministry and Court orders.

At trial, Thorco and Mr. Thordarson were unsuccessful under all causes of action.  On appeal, the Court found Thorco and Thordarson jointly and severally liable under all causes of action. Further, the Court of Appeal held that EPA section 99(2) is a separate and distinct ground of liability for polluters. The Court awarded $1.3 million in damages and $100,000 in punitive damages ($50,000 each) from Thorco and Mr. Thordarson. Leave to appeal to the Supreme Court of Canada was denied.

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