One recurring question in environmental law is whether it is too late to sue for historic pollution. The latest word on this enduring dispute is the British Columbia Court of Appeal’s decision, ML Plaza v. Imperial Oil. Imperial had operated a gas station in a small plaza. The tanks leaked, contaminating the station property and other parts of the plaza. After lengthy negotiations about remediation, the plaza owner (ML Plaza) sued Imperial.
Did they sue on time? The BC limitation period was two years (as Ontario’s is now). ML knew of the contamination more than two years before they started the lawsuit. ML argued that this did not matter. As long as the contamination still existed on their property, they argued, Imperial Oil was still committing a tort and ML should be entitled to cleanup.
The Court of Appeal disagreed. They ruled that ML Plaza could sue for compensation only for “additional damage” that occurred during the two years immediately before the lawsuit commenced. ML’s limited environmental studies showed that its property was contaminated throughout this period. However, they did not show that the contamination had spread or otherwise worsened during the two years. The court was also unimpressed with ML’s expert evidence that the value of its property had been reduced by the contamination, since Imperial had offered to pay for any marginal costs incurred during construction to remove the contaminants. As a result, ML’s claim was dismissed with costs. Leave to appeal to the Supreme Court of Canada was refused.