Michael Hebert who has been involved in the creation of significant precedent setting legal precedents has been involved in yet another groundbreaking case where the limits of legal liability have been expanded or confirmed. In a recent decision, the Supreme Court of Canada dismissed a Leave Application by the Defendant in the case of Eddy Huang v. Fraser Hillary’s Limited. Mr. Hebert represented the Plaintiff at Trial, the Court of Appeal and before the Supreme Court of Canada on the Leave Application.
The two matters of interest were the scope of private nuisance and whether foreseeability is a requirement for nuisance in Canada. Foreseeability in nuisance is part of the law of England and New Zealand. The Defendant urged upon the Court that it should be part of the law of Ontario. The Court declined and ruled that nuisance does not require foreseeability. This is a tremendous boost to the use of nuisance as a tool in the prosecution of environmental lawsuits.
The second point the Court dealt with was whether a statutory cause of action is affected by the
fact that the contamination may have occurred before the statutory cause of action came into
force. The Court of Appeal ruled that while the contamination damage may have occurred
before the statute came into force, nonetheless its provisions govern the issue of liability arising
out of the spill because the liability is an ongoing obligation and accordingly claims under s. 99
of Ontario’s Environmental Protection Act afford coverage to Plaintiffs for damage to their
These two legal principals have been the subject matter of considerable academic comment and
are another example of our continuing ability to affect profound legal change in the environmental law area.