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If you don’t plead it, you can’t appeal it: Ontario Court of Appeal confirms you can’t raise new theory of defence on environmental contamination appeal

By Dina Awad and Kathryn Gullason
August 15, 2022
  • Commercial Litigation
  • Environmental Litigation
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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.”

Takeaway

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.

For more information, please reach out to the authors Dina Awad or Kathryn Gullason.

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Dina Awad

About Dina Awad

Dina Awad is a partner in Dentons’ Litigation and Dispute Resolution group. Dina specializes in complex regulatory and commercial matters with a focus on environmental law, health law, and commercial disputes where she provides advocacy, risk analysis, and compliance advice. Her public law experience also includes work in the field of professional regulation. Dina is committed to the success of our clients and cases; she thoroughly reviews and strategizes each piece of evidence to resolve disputes in our clients’ best interests.

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Kathryn Gullason

About Kathryn Gullason

Kathryn Gullason (She/Her/Hers) is a research associate in the Litigation & Dispute Resolution group at Dentons. She supports the Firm’s lawyers and clients, researching complex legal issues, preparing opinions for clients, developing submissions for court and other proceedings, tracking legal developments in the Firm’s key practice areas and drafting legal insights.

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