A book on the developments in environmental law in Canada during 2017 was recently published by Thomson Reuters. Edited by Stanley D. Berger of Fogler Rubinoff LLP, the book includes a number of interesting chapters related to contaminated sites and the issues raised in the Midwest Properties Ltd. v. Thordarson (“Midwest”) court case. The Midwest case is part of a possible trend in Canada toward awarding damages based on restoration costs rather than diminution in value. If nothing, else the Midwest Case has introduced uncertainty to the law of damages in contaminated sites cases.
In the chapter written by Natalie Mullins, a litigation partner in the Advocacy and Environmental groups in the Toronto office of Gowling WLG, on the evolution and current state of law on damages in contaminated sites, she states that despite being explicit about awarding compensatory damages only under section 99 of the Alberta Environmental Protection Act (“EPA”) and not at common law, the Alberta Court of Appeal may have implied that restoration costs are the default measure of damages in contaminated sites cases. She also explores some other critical issues that have arisen post-Midwest, such as:
- Whether diminution in value is still relevant to the measure of damages;
- What it means to “restore” a real property;
- How the court can take a proactive role to ensure that awards made to benefit the environment actually meet that objective; and
- How defence counsel might prevent similar awards in the future, and how plaintiff’s counsel might use the case to obtain significant damages for their clients.
An interesting point raised by Ms. Mullins in her contaminated sites chapter is that in recent court cases, highlighted with Midwest, court decisions may be paving the way for plaintiffs to recover very significant damage awards for the contaminated of their sites that grossly exceed their actual loss and, in certain circumstances, may be completely unwarranted.
Ms. Mullins questions if the Midwest decision has created the potential for litigants to profit off purchasing contaminated sites and for defendants to face double jeopardy following judgment at trial.
The book is available at online for $144 (Cdn.).