On June 15, 2001, 34 plaintiffs (collectively referred to as the “plaintiffs”) commenced legal proceedings against the defendant, Gulf Canada Resources Limited (“Gulf”), Her Majesty the Queen in Right of the Province of Ontario (“the Province of Ontario”) and the defendants, Frank Hunter, John Robertson, C.E. McIntyre, Wayne Scott, Peter Lee, Gordon Johnson, Jim Mills, William Seitz, Lisa Vandermeer and Gordon Miller, who acted as senior employees and agents of the Province of Ontario, at various Regional and District offices of the Ministry of the Environment (collectively referred to as “Agents of MOE”). One of the grounds outlined, as a basis for the 34 actions against Gulf, is nuisance, which includes the law of public nuisance.
1. Claim against the defendant, Gulf
The plaintiffs are the owners of lands in the District of Parry Sound. The plaintiffs claim that the defendant, Gulf, a limited company which carries on business as a distributor, supplier and seller of petroleum products, is liable for contributing to the spill, discharge and escape of gasoline into the soil and groundwater of the plaintiffs' lands.
The plaintiffs allege that Gulf, directly or through the original operator of Buchanan Service Station (who is now deceased) allowed gasoline to spill, discharge and escape from Buchanan Service Station during 1978 and 1979. The gasoline then migrated through the soil and groundwater, contaminating the soil and groundwater used by the plaintiffs. This petroleum product constitutes a pollutant within the Ontario Water Resources Act , R.S.O. 1990 ch O-40, s. 28 and the Environmental Protection Act , R.S.O. 1990, ch E-19, s. 99.
Following the initial discovery of the spill, discharge and escape of the gasoline from Buchanan Service Station it is alleged that Gulf failed to promptly remove or require the removal of the contaminated soil. This failure resulted in the continued contamination of groundwater. It is further alleged by the plaintiffs that Gulf assumed liability for the spill, discharge and escape of the gasoline through its lax remediation efforts following the discovery of the initial contamination.
Between 1980 and 1988 Gulf, with the knowledge of the Province of Ontario and the Agents of MOE, conducted tests which revealed the presence of hydrocarbon levels in the residential properties surrounding Buchanan Service Station. In 1989, it is alleged that Gulf, with the knowledge of the Province of Ontario and the Agents of MOE, made representations that the groundwater used by the plaintiffs was clear of contamination. In 1992, Gulf installed a new well within 180 metres of the contaminated area. It is alleged that Gulf promoted that water be supplied from this new well despite the alleged dangers posed by such use. In 1995, Gulf and the Province of Ontario entered into an agreement to release Gulf from any further legal responsibility arising out of the contamination of the plaintiffs' properties.
The plaintiffs rely on the following causes of action against the defendant, Gulf:
- The plaintiffs claim that Gulf is strictly liable for the spill, discharge and escape of the gasoline. The plaintiffs plead and rely upon the doctrine of Rylands and Fletcher, the Environmental Protection Act , R.S.O. 1990, ch. E-19 and the Ontario Water Resources Act , R.S.O. 1990, ch. O-40.
- The plaintiffs claim that Gulf is liable under the law of nuisance and trespass. It is alleged that the failure to promptly remove or require the removal of the contaminated soil resulted in continued contamination of the plaintiffs lands and thereby constitute trespass and nuisance by Gulf.
- The plaintiffs claim that Gulf is liable for breach of fiduciary duty. It is alleged that Gulf represented itself to the plaintiffs as having the necessary expertise to address the problem and protect the best interests of the plaintiffs. It is alleged that the plaintiffs relied on this representation and Gulf thus owed a fiduciary duty towards the plaintiffs, which it breached.
2. Claim against all defendants
The plaintiffs state that all defendants, including Gulf, the Province of Ontario and the Agents of MOE are alleged to have breached their duty of care and made fraudulent representations with respect to the issues raised in this action.
In 1996, an MOE official advised the plaintiffs that the communal water supply met all requirements for potable water in the Ontario Drinking Water Objectives . The plaintiffs allege that this representation constitutes an act of conspiracy carried out by the Province of Ontario to conceal the scale and magnitude of the groundwater contamination. In addition, the Province of Ontario transferred responsibility for the alleged offences to a Local Service Board. It is claimed that this transfer of responsibility was a misuse of legislation. Moreover, it is alleged that this transfer constituted a failure to follow applicable procedures under the relevant environmental legislation.
It is alleged that all defendants represented to the plaintiffs that the new well was viable and capable of providing adequate quantities of potable water despite the defendants' failure to conduct the appropriate environmental assessments.
The plaintiffs rely on the following causes of action against all the defendants;
- The plaintiffs claim that all the defendants are liable under the law of negligence for breach of their respective duties.
- It is alleged that Gulf is negligent in its proper maintenance of records and documents pursuant to the provisions of the Gasoline Handling Act and Regulations and in its various responsibilities related to the remediation of the contaminated areas.
- It is alleged that the Province of Ontario, as represented by the Agents of MOE, is liable for the failure to carry out its obligations under applicable environmental legislation and for the failure to follow applicable procedures.
The plaintiffs claim that all the defendants are liable for fraudulent concealment from the plaintiffs. It is alleged that the defendants concealed and conspired to withhold the magnitude, nature and extent of the ongoing groundwater and soil contamination from the plaintiffs. The plaintiffs allege that they were misled into deferring the action now taken through such fraudulent concealment from the plaintiffs.