Diminishing Strictness: The Growing Gap in Ontario's Private Law Environmental Liability Regime

Abstract

The Ontario Court of Appeal's decision in Smith v Inco Ltd illustrates the degree to which private nuisance liability has evolved over the last 150 years from a tort of relatively strict liability into an increasingly fault-based source of liability. Inco also offers an opportunity to consider whether this evolution has left some wronged landowners behind. This work considers the evolution of private nuisance into the tort it is today and illustrates Ontario's previous statutory attempt to extend private liability to all instances of wrongful environmental contamination. The justifiability of Ontario's combined common law and statutory private law environmental liability regime is then evaluated against an understanding of private law liability as existing for the purpose of vindicating reciprocal equal freedom. Where Ontario's private law environmental liability regime is found to permit wrongful loss without opportunity for private redress, statutory changes are proposed to extend rights of compensation to all landowners suffering unjustifiable losses.