Introduction
On August 22, 2019 a notice of abandonment of appeal was filed with the Ontario Court of Appeal in the case of Soleimani v Rolland Levesque[1] ("Soleimani"). This leaves intact the decision of Justice Hackland who held that the involvement of the (then) Ministry of the Environment (now the Ministry of Environment, Conservation and Parks) (the "Ministry") in the investigation and remediation of ground water contamination is not the type of process that tolls a limitation period under subsection 5(1)(a)(iv) of the Limitations Act, 2002 (the "Act")[2]. The Ministry process did not have a reasonably ascertainable end date, nor would it eliminate the need for litigation and, thus, did not apply to extend the limitation period.
Background to the Claim
As part of a refinancing in 2010, the plaintiffs learned of petroleum hydrocarbon contamination in the ground water on their property. The plaintiffs' consultant determined that the impacts were migrating from the defendants' neighbouring automotive repair facility, where there were several known underground storage tanks dating from the 1950s. The plaintiffs immediately retained a lawyer who put the defendants on notice of the plaintiffs' intention to pursue a claim for damages resulting from the contamination.
The plaintiffs also then contacted the Ministry who, over the next eight years, required the defendants to prepare work plans and undertake significant investigative and remediation work at their own expense at the defendants' property, including requiring the defendants to confirm the source of the contamination, contain any leaking tanks and remove contaminants. The plaintiffs' lawyer did not communicate further with the defendants between 2011 and May 2014; and, throughout that time, one of the plaintiffs dealt directly with the Ministry in an attempt to reduce costs.
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