A recent decision from the Court of Appeal for Ontario, Huang v Fraser Hillary’s Limited, 2018 ONCA 277, underscores the challenges faced by parties seeking to intervene in private environmental disputes.
Fraser Hillary’s Limited (“FHL”) is the corporate owner of a property in Ottawa where it operates a dry-cleaning business. The owner of an adjacent property, Eddy Huang, sued FHL when he discovered contamination on his property that had emanated from FHL’s property. Huang also sued Fraser Hillary, an individual who owned a property located adjacent to the FHL property.
FHL had used and stored large quantities of organic solvents on its property from sometime in the 1960s until 1974. During this period, FHL stored and disposed of the solvents in the manner that, albeit accepted at the time, resulted in multiple spills of these solvents onto the ground at the FHL property. These spills led to the contamination on the Huang property, but ceased in 1974 when FHL installed and began using new dry cleaning equipment.
In March 2017, the Superior Court of Justice allowed Huang’s claim in part. The Court held FHL liable in nuisance and under section 99 of the Environmental Protection Act (“EPA”) and ordered it to pay Huang approximately $1.8 million in damages. Huang’s claims against FHL pursuant to the rule in Rylands v Fletcher, trespass, and negligence were all dismissed as were all of Huang’s claims against Fraser Hillary.
Retroactive application of section 99
The most controversial aspect of the Superior Court decision related to the Court’s retroactive application of section 99 of the EPA. Section 99 of the EPA, which establishes a statutory right to compensation for private individuals, had not been enacted at the time that the spills occurred. In fact, section 99 was not introduced until 1979 and proclaimed into force only in 1985. Section 99 did not exist at the time that the spills occurred at the FHL property.
The Court specifically rejected FHL’s argument that the EPA could not be applied retroactively. It determined that its interpretation did not constitute a retrospective application of the EPA and, as such, was appropriate. In obiter, the Court acknowledged there is a presumption against retrospective application of legislation, but that this presumption was inapplicable in the circumstances because section 99 was designed to protect the public rather than punish prior actions.
Intervening at the Appeal stage: Becoming a friend of the Court
An appeal of the lower court decision is scheduled to be heard at the Court of Appeal for Ontario (“Court of Appeal”).
An environmental law not-for-profit organization, Ecojustice, sought leave to intervene in the appeal proceedings pursuant to rule 13.02 of the Rules of Civil Procedure.
Under Rule 13.02, a court may grant a party leave to intervene in a civil proceeding as a friend of the court (also known as an amicus curiae) for the purpose of “rendering assistance to the court by way of argument.”
As set out in the Court of Appeal decision in Peel (Regional Municipality) v Great Atlantic & Pacific Co. of Canada Ltd., 1990 CanLII 6886 (ONCA), in determining whether to grant leave to intervene, a court will consider:
(a) the nature of the case;
(b) the issues which arise; and
(c) the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.
Ecojustice claimed it would bring a unique perspective on certain of the legal questions on appeal; that it had a genuine interest in the Court of Appeal’s interpretation and application of the law; and that its perspective would assist the Court of Appeal in understanding the implications of its decision for environmental law.
However, in applying the factors set out in Peel, the Court of Appeal disagreed.
The Court of Appeal relied on prior jurisprudence holding that the threshold for intervention is higher where the matter concerns a private dispute, even for would-be public interest interveners, both governmental and non-governmental. This higher threshold has proven a difficult hurdle for environmental organizations seeking to intervene in private (civil) suits in the past. This was the case when the Environmental Commissioner of Ontario and a coalition of environmental groups unsuccessfully sought leave to intervene in a judicial review heard at the Divisional Court involving certificates of approval issued to a cement making plant (Lafarge Canada Inc. v. Ontario Environmental Review Tribunal, 2008 CanLII 6870 (ON SCDC).
In Huang, he Court of Appeal was prepared to “assume, without deciding” that Ecojustice had sufficient expertise and experience to assist in the matter. The Court also acknowledged that matters concerning construction of important legislation and/or a provision that has received little prior judicial treatment may warrant intervention. However, although section 99 is an important, little-tested provision, Ecojustice had not made it a major focus of its proposed intervention. Instead, Ecojustice had indicated it would make brief submissions regarding the appropriateness of rebutting the presumption against retrospective application of section 99.
Ecojustice claimed that its submissions would “differ from those of the parties” and would be “of use to the Court in the event that it finds that retrospective application is at issue in the appeal”; it did not, however, provide sufficient specifics. The Court of Appeal expressed concern that Ecojustice had not provided a draft factum, and Huang’s responding factum dealt with the issue of retrospective application in detail. Moreover, the Court of Appeal anticipated that requiring the parties to the appeal to respond to an intervener factum so close to trial would potentially necessitate its delay, creating prejudice to the parties.
Prior case law has demonstrated the importance of filing a draft factum that makes clear for the court the arguments that a would-be intervener intends to advance (see e.g. Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA). The Court of Appeal’s decision in Huang underscores the importance of this step. Even in cases where there may be wider implications in environmental law arising from the resolution of a private dispute, the court will want to know in advance the arguments upon which a would-be intervener intends to rely and will be sensitive to the potential for prejudice that the involvement of an intervener may create for the parties.