On July 25, 2022, the Ontario Court of Appeal (the Court) released its decision in Sorbam Investments Ltd. v. Litwack, 2022 ONCA 551, a case involving the contamination of land where the defendant had personal knowledge of and allowed the migration of contaminants to continue. For succinct reasons, the Court dismissed the defendant landowner’s appeal on the basis that the appellant had advanced a new theory of defence on appeal which it had neither pleaded below nor led evidence at trial to support.
The case and decision
In Sorbam Investments Ltd. v. Litwack, 2021 ONSC 5226, the defendant property owner, 1129892 Ontario Limited (112Co), was found liable in nuisance and negligence for contamination of the plaintiff’s adjacent lands. 112Co was not the original “spiller” of the chemicals that migrated onto the plaintiff’s property; however, 112Co had knowledge of and allowed the migration of contaminants to continue.
The trial judge found that as a result of 112Co’s inaction, there was an appreciable increase in the environmental contamination of the plaintiff’s property. The judge concluded that the 112Co’s failure to take any meaningful steps to remediate and stop the migration of the contaminants after it had notice of the problem constituted nuisance and negligence. The plaintiff was awarded CA$1.3 million in damages.
Subsequently,112Co appealed the trial decision. 112Co’s central argument on appeal was that the trial judge erred in law by failing to assess what damage was caused to the respondent’s land before 112Co received notice of the migration of contaminants from its land. The Court dismissed the appeal on the basis that 112Co had advanced a new theory of defence on appeal, which it had neither pleaded below nor led evidence at trial to support.
The Court stated that it could not consider the appellant’s new theory of defence since the evidentiary record from the trial was “wholly inadequate.” The Court refused to exercise its discretion to allow the appellant to raise a new theory of defence, since this would be unfair to the Respondent. As the Court noted in its decision, “an appeal is not a forum for an appellant to advance a fundamentally different case than was advanced at trial.”
Ultimately, this decision highlights the importance of laying the groundwork early in anticipation of any appeal. In the context of contamination of land claims, in particular, findings of fact regarding when contaminants migrated onto the plaintiff’s land will be key to determining the quantum of damages that a plaintiff may be entitled to.