T-657-8
Waste Not Wanted Inc. (Plaintiff)
v.
The Queen in right of Canada, Minister o1
Energy, Mines and Resources, Atomic Energy of
Canada Limited (Defendants)
and
James Reginald Forde, Norma Marlene Forde,
Eugenio Sarmiento, Corazon Sarmiento, John
Langcaster, Donna Langcaster, Christos Sofos
and Stauroula Sofos (Intervenors)
INDEXED AS: WASTE NOT WANTED INC. V. CANADA
Trial Division, Collier J.-Toronto, October 1, 2,
3, 4, 5, 9, 10, 11, 12, 15, 16, 17, 18, 19, 31,
November 12, 13, 14, 15, 16, 19, 20, 21, 22, 23,
26, 27, December 3, 4, 5, 6, 7, 10, 11, 1984;
January 8, June 5, 1985 (written arguments filed);
February 7 (application to re-open), March 16
(further evidence) 1986; Ottawa, June 15, 1987.
Practice - Parties - Standing - Plaintiff corporation
seeking injunction to prevent storage of radioactive soil in
certain location - Plaintiff incorporated by area residents
Rights to bring action assigned to plaintiff- Plaintiff without
standing - Claim based on nuisance personal action, not
assignable in law - No standing to bring representative
action as no common interest with occupiers - Individual
members could "effectively challenge impugned legislation"
Proper method for occupiers to bring action on own behalf.
Practice - Res judicata - Whether issue of standing res
judicata in view of earlier interlocutory injunction - Res
judicata applicable where decision in earlier litigation between
same parties 'final" - Interlocutory decision restraining
defendants "until trial of action or further order" not 'final".
Crown - Torts - Private nuisance - Motion by corpora
tion to enjoin defendants from storing radioactive soil in
proposed area - Plaintiffs members assigning right to sue
Plaintiff neither owner nor occupier of land - Claim for
nuisance personal action not assignable in law - Claim to be
brought by individual members - Action dismissed for want
of standing.
The plaintiff, a non-profit corporation, seeks an injunction
restraining the defendants from storing radioactive soil in the
Reesor Road area of Scarborough or, alternatively, declaratory
relief. The soil was to be moved from the Malvern subdivision
to the Reesor Road site for interim storage. The plaintiff
corporation was formed due to the health and safety concerns
of persons residing in the vicinity of the proposed site. Its
members assigned to it their rights to institute proceedings for
an injunction and declaration, but there was no assignment of
any title to, or interest in, land. At issue is whether the plaintiff
has standing to obtain the relief sought. An interlocutory
injunction was previously issued against the defendants, other
than the federal Crown. The plaintiff submits that the issue of
standing, though not raised when the motion for an interlocuto
ry injunction was heard, is now res judicata.
The plaintiff asserts, inter alia, private nuisance to its mem
bers, potential breach of the riparian proprietors' rights, various
breaches of federal and provincial statutes and regulations, and
violation of section 7 of the Charter.
Held, the motion should be dismissed.
The issue of standing is not res judicata. Res judicata can
only apply where there has been a final decision in earlier
litigation between the same parties. It cannot apply to an
interlocutory decision given earlier in the same action. Support
for this view was found in Spencer Bower and Turner's The
Doctrine of Res Judicata. According to the authors, the most
obvious illustrations of decisions which do not purport on their
face to be other than temporary include, inter alia, orders made
"until the trial of the action or further order". The interlocuto
ry injunction issued in the present case restrained the defen
dants with precisely that proviso.
The plaintiff does not have standing to obtain the relief
sought. It cannot claim private nuisance, as it neither owns nor
occupies land. Nor can it rely on the assignments made to it by
its members as giving it the necessary status. A claim based on
private nuisance is a "mere personal action ... not assignable
in law": Union Gas Co. of Canada Ltd. v. Brown (1968), 67
D.L.R. (2d) 44 (Ont. H.C.).
The decisions in Martell v. Consett Iron Co. Ld., [1955] Ch.
363 and Trendtex Trading Corpn. v. Credit Suisse, [1982]
A.C. 679 (H.L.) were distinguished. In Martell, the association
which financially supported the plaintiffs' action was found to
have an interest recognized by the law in the subject-matter of
the action. Here, the plaintiff is not financially supporting an
action brought by its members; it purports to bring the suit
itself, based on assignments of the individual causes of action.
Trendtex is authority for the proposition that an assignee who
has a genuine commercial interest in the enforcement of the
claim of another and to that extent takes an assignment of the
claim to himself is entitled to enforce that assignment. In the
case at bar, the plaintiff has no commercial interest whatsoever
in the enforcement of its members' claims.
The plaintiff has no standing to bring a representative action
as it has no common interest with the occupiers of property in
the area at issue. Furthermore, it does not fall within the
principles outlined by the Supreme Court of Canada in Minis
ter of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R.
575. The challenges asserted by it do not affect any rights it
might have under the impugned legislation. In the case at bar,
there are individual members directly affected "who could
effectively challenge the legislation". The argument based on
section 7 of the Charter also fails: the plaintiff, as a corpora
tion, cannot be deprived of any life or security.
The proper method of proceeding in the present litigation
would have been for one, or several, individual occupiers to
have brought action on their own behalf, and on behalf of
others whose occupiers' rights might be affected by the pro
posed storage facility, and the acts, or non-acts, of the
defendants.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Atomic Energy Control Act, R.S.C. 1970, c. A-19, s.
10(1)(c).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 7.
CASES JUDICIALLY CONSIDERED
APPLIED:
Union Gas Co. of Canada Ltd. v. Brown (1968), 67
D.L.R. (2d) 44 (Ont. H.C.).
DISTINGUISHED:
Minister of Justice of Canada et al. v. Borowski, [1981]
2 S.C.R. 575; Martell v. Consett Iron Co. Ld., [1955]
Ch. 363; aff d [1955] Ch. 389; Trendtex Trading Corpn.
v. Credit Suisse, [1982] A.C. 679 (H.L.); Wiswell et al.
v. Metropolitan Corpn. of Greater Winnipeg, [1965]
S.C.R. 512; Palmer et al. v. Nova Scotia Forest Indus
tries (1983), 2 D.L.R. (4th) 397 (N.S.S.C.).
CONSIDERED:
Fenerty v. The City of Halifax (1920), 50 D.L.R. 435
(N.S.S.C.).
REFERRED TO:
Rockwell Developments Ltd. v. Newtonbrook Plaza Ltd.,
[1972] 3 O.R. 199 (C.A.); Thorson v. Attorney General
of Canada et al., [1975] 1 S.C.R. 138; Nova Scotia
Board of Censors v. McNeil, [1976] 2 S.C.R. 265;
Rosenberg et al. v. Grand River Conservation Authority
et al. (1976), 12 O.R. (2d) 496 (C.A.).
AUTHORS CITED
Bower, George Spencer and Turner, Sir Alexander King-
come, The Doctrine of Res Judicata, 2nd ed. London:
Butterworths, 1969.
Fleming, John G. The Law of Torts, 6th ed. Sydney: Law
Book Co., 1983.
COUNSEL:
David Estrin and H. Dahme for plaintiff.
P. Evraire, Q.C. and A. C. Pennington, Q.C.
for defendants.
SOLICITORS:
David Estrin, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendants.
EDITOR'S NOTE
The Executive Editor has decided to report His
Lordship's 76 page reasons for judgment herein
as abridged. The initial 31 pages, dealing with the
legal issue of standing, the doctrine of res judica-
ta and the law of nuisance as related to the
circumstances of this action, are reported in their
entirety. It was held that the plaintiff corporation
lacked standing to obtain by litigation the relief
sought.
In the event that he may be found to have been
mistaken in that conclusion, Collier J. proceeded
to deal with the action on its merits. That portion
of the judgment has been omitted and a summary
of the highlights is published in lieu thereof.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiff is a non-profit corpo
ration incorporated, under Ontario law, on March
19, 1984.
The plaintiff's action is for an interlocutory and
permanent injunction to restrain the proposed
depositing of certain soil at the "Reesor Road
area" in the City of Scarborough, Ontario. Alter
natively, declaratory relief is sought.
An interlocutory injunction was granted on May
16, 1984, against the defendants, other than the
Federal Crown.
The soil in question ("the Malvern soil") is
presently located in the McClure Crescent area of
the City of Scarborough. The intervenors are
several home-owners, or residents, in the McClure
area. They did not take part in the trial.
The Malvern soil was somehow contaminated, in
the 1940s, by radioactive materials. In the 1970s
the site was developed as part of a subdivision in
the Malvern community. It is not necessary, in my
view, to go into the question of exactly when, why,
and by whose actions, the soil was contaminated.
Everyone agrees the soil is contaminated. The
extent, the hazard, and what should be done, or
not done, is in dispute.
In 1980, tests were done by federal government
authorities. As a result of those tests, it was decid
ed the offending material (approximately 4,000
tons) should be moved elsewhere with appropriate
preventive precautions. Certain proposals were
made. The first was unsuccessful. I need not, here,
set out that history. A brief summary can be found
in the reasons I gave, on May 16, 1984, granting
the interlocutory injunction.
After some negotiations, the Government of
Canada ("Canada") and the Government of
Ontario ("Ontario"), on November 3, 1983,
entered into an agreement, described as a memo
randum of understanding (part of Exhibit 43). The
two governments agreed the soil should be
removed from the McClure area; they would co
operate in the removal and storage. It was intend
ed that a permanent disposal site be established,
"as soon as possible"; but Ontario preferred the
soil be removed without "waiting for the establish
ment of a permanent disposal site".
The main terms of the agreement were as
follows:
(a) Canada had responsibility for the removal
and permanent disposition of the soil.
(b) The Low-Level Radioactive Waste Man
agement Office (LLRWMO or "the Office"), a
part of the defendant, Atomic Energy of
Canada Ltd., (A.E.C.L.) was to carry out the
federal responsibilities, and was to be named the
agent of Canada for that purpose.
(c) Ontario was to identify, or pick, the
interim storage site. Once the two governments
had agreed on an acceptable site, the Office
would remove the soil from the McClure area
and store it at the location chosen.
(d) The Office, in co-operation with Ontario,
was to make every effort to establish a perma
nent disposal site.
I set out in full clauses 6(b), 6(c) and 12 of the
memorandum:
6....
(b) Within five years from the date of this agreement, unless
a permanent disposal site has been established, the Office
will make available to Ontario and Canada a report summa
rizing the progress achieved by the Office in establishing a
disposal site for low level radioactive waste and outlining the
significance, likelihood of implementation and probable
timing of the remaining steps.
(c) So long as no permanent disposal site has been agreed
upon then Ontario shall continue to cooperate in identifying,
selecting and making available a site, or sites, for the interim
storage of the Malvern waste.
12. The term of this agreement is five years from the date of
execution unless at the end of that time no disposal site has
been agreed upon in which case the agreement shall be
automatically renewed for a further five-year term. In the event
that this agreement is so renewed it shall terminate at the
expiry of the second five year term if a permanent disposal site
has not been agreed upon at which time Canada's responsibility
in respect of the interim storage of the Malvern waste shall
terminate.
As I read the agreement, Canada and Ontario
have to agree on a permanent disposal site; if, by
November 3, 1993, no such site has been agreed
upon, Canada's responsibility, in respect of the
interim storage, ceases. Thereafter, I see no legal
obligation, enforceable by Ontario, or anyone, on
Canada to remove the soil from the interim site.
On October 5, 1983, the Office was told that
Ontario had selected a storage site in the Reesor
Road area. On November 7, 1983, a news release
indicated the soil was to be moved. While the
Reesor Road area was not specifically mentioned,
it became public knowledge almost immediately.
I digress at this point.
When this action was commenced, the Queen in
the right of Ontario, the Ontario Minister of Inter-
governmental Affairs, and the Ontario Develop
ment Corporation were included as defendants.
The Ontario Minister had entered into the agree
ment of November 3, 1983, on behalf of the
province. The Ontario Development Corporation
was said to be the owner of the land on which the
soil was to be stored. A lease on that land had been
entered into by A.E.C.L., effective January 1,
1984. In actual fact, the owner was the Ontario
Land Corporation. Before trial, a motion to strike
those defendants was made, and succeeded. The
grounds were that this Court had no jurisdiction in
respect of the claim advanced against those
Ontario defendants.
I return to the facts.
Dr. D. J. Cameron was the head of the
LLRWMO. More specific information was given
to the residents in the Reesor Road area in the
early part of November. This was done by Dr.
Cameron himself or under his direction. I shall
later deal more fully with the communications and
contacts between the Office and the residents.
Some of the residents in the area became con
cerned about the proposal. Meetings were held.
Eventually, it was decided to form the plaintiff
corporation.
The status of the plaintiff in this action, and
whether it can obtain the relief sought.
I shall adopt the expression "standing" as the
parties characterized this issue at trial and in the
written arguments. It is a vital issue.
As can be seen, the plaintiff did not come into
existence until some months after the storage site
decision was made known. The incorporating
applicants, and first directors were Marilynne
Pitcher, Kenneth Deer, and Betty Burkholder.
Mrs. Pitcher lives in Scarborough. Mr. Deer lives
in the Town of Markham, north of Scarborough.
Miss Burkholder resides in Pickering east of the
proposed site. The objects of the corporation are
set out in clause 6 of the letters patent as follows:
(a) To study the effects of the dumping or storage of radio
active material or soil, or any other hazardous wastes in any
location within the Municipality of Metropolitan Toronto or
the Regions of York or Durham;
(b) To conduct studies or other research into the effects of a
landfill site or the storage of waste upon the local residents or
the local environment in general;
(c) To conduct studies or other research into the designation
of permanent disposal sites for existing hazardous or radioac
tive wastes, or such hazardous or radioactive waste as may be
generated in the future;
(d) To promote public awareness of the environmental issues
involved in the disposal of radioactive or other hazardous
material;
(e) To offer a forum for local resident members of the
Corporation to express their views and/or opinions with
respect to any of the above matters, and to take whatever
lawful action on behalf of local residents and the members of
the Corporation it may deem necessary or advisable under
the circumstances in order to express their views and to
protect their environment;
(f) For the objects aforesaid, to accept donations, gifts,
legacies and bequests.
The corporation does not own, nor does it have
an interest in, land in the Reesor Road area, or
elsewhere.
It has 163 members. Most of them live in the
vicinity of the site, or up to three miles away. A
few live greater distances away. The majority of
the members of the plaintiff, who gave evidence at
trial, all resided within 1 1 / 4 miles, or less, of the
proposed storage facility. A number of the mem
bers do not own land in the area. The three
incorporating directors, for example, live in prop
erties rented, by them or relatives, from the
Ontario Land Corporation.
Nearly all the members of the plaintiff have
made assignments to it. The operative portion of
the assignment reads:
TO: WASTE NOT WANTED INC.
In consideration of Waste Not Wanted Inc. agreeing to
retain a lawyer to bring judicial proceedings to prevent the
intended disposal of radioactive soil in the Reesor Road area,
the undersigned, being the owner or tenant of property
described hereunder, hereby assigns to Waste Not Wanted Inc.
our rights to bring an action in the Federal Court of Canada
and Supreme Court of Ontario, or either such court, for an
injunction and declaration to restrain all governments, agencies
and persons from establishing a radioactive soil storage or
disposal site in the vicinity of Reesor.
Some of the assignments were signed, and some
re-signed, after this trial commenced.
It is important to note, there is no assignment to
the plaintiff of any title to, or an interest in, land.
I conclude that there were several purposes for
incorporating: to formally organize those opposed
to the removal of the soil to Reesor Road; to
enable the individuals to speak as one voice, and to
deal, as a single entity, with the governments and
their agencies. There may have been more. But
one purpose as well was, I find, to protect mem
bers from any individual financial liability arising
out of any legal actions to be taken. For example,
individual liability for damages or legal costs,
which might be subject to recovery by third par
ties, such as the defendants, or potential defen
dants, from an individual's assets, such as land, or
other property. (See Exhibit 61 and the evidence
of Miss Burkholder at pages 726 and 727.)
Exhibit 61 is a copy of minutes of a March 8,
1984 meeting of eight Reesor Road residents. The
minutes indicate there was a discussion of incorpo
ration and what benefit or advantages might flow.
Miss Burkholder, in cross-examination, said she,
personally, did "not particularly" consider incor
poration to be a benefit. She was not, however,
speaking for the other residents who eventually
became members, or expressing their views.
In order to deal with the submission in respect
of standing, it is necessary to analyze the particu
lar causes of action put forward by the plaintiff.
The plaintiff asserts that the storage of the soil
at Reesor Road "will constitute a private nuisance
to the lives, health and property of the Plaintiffs
members ..." (paragraph 21 of the statement of
claim). Private nuisance is pleaded again in para
graph 23. Nuisance is alleged, as well, in para
graphs 22 and 24.
Riparian rights by the plaintiffs members, and
potential breach of those rights, are alleged in
paragraphs 19 and 24.
Various breaches of various statutes and regula
tions, federal and of the province of Ontario, are
pleaded. Additionally, certain regulations are
alleged to be invalid.
In paragraphs 25 and 26, it is said the actions
and proposals of the defendants were in breach of
a duty to act fairly to the plaintiffs members, or
were violations of the principles of natural justice.
Finally, the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] is invoked: the members of the
plaintiff have been deprived, because of the pro
posed activities of the defendants and their failure
to provide information and hearings, of the rights
protected by section 7 of the Charter.
The defendants summarized the plaintiff's
claim, accurately, in my view, as follows:
As a consequence of these allegations, the Plaintiff corpora
tion seeks a permanent injunction restraining the Defendants
or, in the alternative, a declaration that the Defendant, and
each of them, lack lawful authority to deposit the radioactive
material at Reesor Road, that to do so will constitute a private
nuisance to the Plaintiffs members residing in the vicinity of
the said site, that to do so will constitute a breach of the
riparian proprietors' rights and that in any event, such a deposit
is unlawful except insofar as principles of fundamental justice
are complied with.
Before considering further the defendants' con
tention that the plaintiff has no standing to claim
the relief outlined, I shall deal with a general
submission by the plaintiff on this point. It was
contended the issue of standing is res judicata:
when the interlocutory injunction was issued by
me, the question of standing, though not raised,
was, in law, decided.
I do not agree.
It is true the issue of standing was not raised at
the time the motion for the interlocutory injunc
tion was heard. In all likelihood, not all the facts,
in respect of the plaintiff, were known at that time.
The action had only been started on April 4, 1984.
As I understand it, examinations for discovery had
not taken place at the time the motion was heard.
On August 9, 1984, the defendants applied for
an order fixing a trial date. On August 16, the
parties agreed on October 1, 1984, as a date. The
Associate Chief Justice declined to fix the date
because an appeal was pending from my order
granting the interlocutory injunction. The defend
ants agreed to abandon the appeal. The October
date was then fixed.
On August 30, 1984, the defendants filed a
motion for dismissal of the action, because of lack
of standing of the plaintiff. That motion was dis
missed, without prejudice to the defendants to
have it considered by the Trial Judge.
A similar motion to dismiss was brought on
before me at the opening of the trial. I directed the
motion would not be heard then; the issue could be
argued after all the evidence was in.
The defendants withdrew their appeal of the
injunction matter, in order to expedite a hearing of
this action, I find no waiver or estoppel in that.
Quite apart from those factual matters, the
plaintiff cannot, in my opinion, as a matter of law,
succeed on the res judicata argument.
Counsel for the plaintiff relied on the following
statement from Spencer Bower and Turner, The
Doctrine of Res Judicata, 2nd ed., London: But-
terworths, 1969, at page 1:
Introductory
I In English jurisprudence a res judicata, that is to say a
final judicial decision pronounced by a judicial tribunal having
competent jurisdiction over the cause or matter in litigation,
and over the parties thereto, disposes once and for all of the
matters decided, so that they cannot afterwards be raised for
re-litigation between the same parties or their privies. The
effect of such a decision is two-fold.
Parties estopped from averring to the contrary
2 In the first place, the judicial decision estops or precludes
any party to the litigation from disputing, against any other
party thereto, in any later litigation, the correctness of the
earlier decision in law and fact. The same issue cannot be
raised again between them, and this principle extends to all
matters of law and fact which the judgment, decree, or order
necessarily established as the legal foundation or justification of
the conclusion reached by the Court.
and the following excerpt from Fenerty v. The City
of Halifax (1920), 50 D.L.R. 435 (N.S.S.C.), at
pages 437-438:
The rule which I deduce from the authorities is that a judgment
between the same parties is final and conclusive, not only as to
the matters dealt with, but also as to questions which the
parties had an opportunity of raising. It is clear that the
plaintiff must go forward in the first suit with his evidence; he
will not be permitted in the event of failure to proceed with a
second suit on the ground that he has additional evidence.
The plaintiff contended the defendants had an
opportunity to raise the matter at the interlocutory
stage; they did not do so; they are now estopped.
Res judicata can only apply where there has
been a final decision in earlier litigation between
the same parties. It cannot, as I see it, apply to an
interlocutory decision given earlier in the same
action.
I find support for this view in Spencer Bower
and Turner, previously cited, at page 132:
Meaning of "Finality"
164 A judicial decision is deemed final, when it leaves
nothing to be judicially determined or ascertained thereafter, in
order to render it effective and capable of execution, and is
absolute, complete, and certain, and when it is not lawfully
subject to subsequent rescission, review, or modification by the
tribunal which pronounced it. This definition involves the exist
ence of two distinct types of non-finality, which it is proposed to
examine separately: one, in which the judicial decision on the
face of it is imperfect, provisional, conditional, indefinite, or
ambiguous, and the other in which the judicial decision, though
ex facie purporting to be final, is, by the English, or (as the
case may be) the foreign, law applicable, liable to be afterwards
rescinded, re-opened, or varied by the originally adjudicating
tribunal.
Want of finality appearing on the face of the record
165 The simplest and most obvious illustrations of decisions
which do not purport on their face to be other than temporary,
provisional, or interlocutory are the following: an order made
"until the trial of the action or further order", such as an
interlocutory injunction, or an interim order for the preserva
tion of property, or of the status quo ... .
The interlocutory injunction issued in this action
restrained the defendants with precisely the above
proviso: "until the trial of this action, or until
further order".
I turn then to the details of the argument on the
issue of standing.
The chief attack is related to the law in respect
of nuisance. At the outset, it must be remembered
the members of a corporation are distinct from the
corporation itself. Equally, the property of a corpo
ration is distinct from that of its members, and
vice versa. See Rockwell Developments Ltd. v.
Newtonbrook Plaza Ltd., [1972] 3 O.R. 199
(C.A.), at page 212.
This plaintiff does not own any property, or
riparian rights, which could be affected by the
storage of the Malvern soil. A number of its
members do. The corporation cannot allege any
potential physical or psychological harm to itself.
Its individual members could. There was evidence
before me to that effect.
The defendants rely on the statement in Flem-
ing, The Law of Torts, 6th ed., Sydney: Law Book
Co., 1983, at page 384:
The gist of private nuisance is interference with an occupier's
interest in the beneficial use of his land.
and at page 393:
The right to complain of nuisance, as of trespass, belongs
exclusively to the actual possessor of the land affected.
Here, it is said, the plaintiff cannot bring itself
within these requirements; it neither owns nor
occupies land.
I agree.
For the plaintiff, the assignments (earlier
referred to) by the members to the corporation are
relied on as giving the necessary status.
Generally speaking, an assignment of a bare
cause of action has been regarded as invalid. The
law on this point was reviewed at length by Moor-
house J. of the Ontario Hight Court in Union Gas
Co. of Canada Ltd. v. Brown (1968), 67 D.L.R.
(2d) 44. He began at page 48:
There are many authorities which state "An assignment of a
mere right of litigation is bad" ....
and at pages 49-50:
I am satisfied the claim here made is one in tort and the facts
seem to place it in the category of a private nuisance or
trespass. I do not think for my purposes it matters which. In 15
C.E.D. (Ont. 2nd), pp. 494-5, I read:
The claim for an injunction to restrain an injury or threat
ened injury to property on the ground of nuisance is a mere
personal action, to which the maxim actio personalis moritur
cum persona applies, that being so, a fortiori, it is not
assignable: Preston v. Hilton (1920), 48 O.L.R. 172.
And at pp. 495-6:
As a general rule, once a plaintiff has established the exist
ence of a right in law, and a violation of that right by the
defendant, he is (unless there is something special in the
case) entitled as of course to an injunction to prevent the
recurrence of that violation. In an action of nuisance, dam
ages and an injunction are alternative or substitutive reme
dies, although both may be awarded for the one delict.
In Preston v. Hilton (1920), 48 O.L.R. 172 at p. 177, 55
D.L.R. 647 at p. 652, Orde, J., said:
It is clear that a personal claim for damages arising out of a
tort cannot be assigned; and, whatever doubts may exist as to
the assignability of a right of action for damages to property
as a result of certain English decisions and of the views of
certain text-writers (see the judgment of Anglin, J., in
McCormack v. Toronto R.W. Co. (1907), 13 O.L.R. 656, at
p. 659), the decision of the Divisional Court in that case is
clear authority that even a claim for damages for injury to
property is not an assignable chose in action.
The claim here made is one for which an injunction could be
given. It is a mere personal action and in my respectful opinion
it is not assignable in law. I have read many cases and referred
to many textbooks in none of which can I find recovery by an
assignee in a case such as the present. Amongst the many cases
I refer to are: Marlyn v. Williams (1857), 1 H. & N. 817, 156
E.R. 1430; Hastings v. North Eastern R. Co., [1898] 2 Ch.
674; Cohen v. Webber (1911), 24 O.L.R. 171; Torkington v.
Magee, [1902] 2 K.B. 427 at pp. 433-4; reversed on facts
[1903] I K.B. 644; McCormack v. Toronto R.W. Co. (1907),
13 O.L.R. 656 at p. 659; Dawson v. Great Northern & City R.
Co., [1904] 1 K.B. 277; reversed on other grounds [1905] I
K.B. 260. [My underlining.]
I agree with the statement underlined.
Counsel for the plaintiff referred to Martell v.
Consett Iron Co. Ld., [1955] Ch. 363, affirmed by
the English Court of Appeal: pages 389-431. It
was said the facts there were similar to the facts
here. That is not so. The individual plaintiffs had
certain fishing rights in the waters of a river. They
alleged the defendant company's works were pol
luting the river. An injunction and damages were
sought. Before the action was heard, the defendant
moves to stay the action on the ground it was
being "illegally maintained". The persons said to
be maintaining the suit were an unincorporated
body known as the Anglers' Co-operative Associa
tion, and a company connected with the Associa
tion. The object of these two bodies was, among
other things, to watch over and maintain, the
purity of waters in respect of fishing. The Associa
tion and the company established a fighting fund
to assist in the legal costs in respect of any actions
to stop or prevent pollution. The plaintiffs became
members of the Association and called on it and
the company to indemnify them in respect of legal
costs to be incurred or paid in their lawsuit.
The defendant argued this was maintenance—
intermeddling in someone else's lawsuit, "by main-
taming or assisting with money or otherwise, to
prosecute or defend it".
Danckwerts J. dismissed the motion. His deci
sion was upheld in the Court of Appeal.
The following extracts from the reasons of Jen-
kins L.J., in the Court of Appeal, clearly show the
distinguishing features between that case and the
one before me. At pages 416-417:
In my view, therefore, the true justification in cases such as the
British Cash case must be that the maintainer, having given the
indemnity in the course of a legitimate and genuine business
transaction, has a legitimate and genuine business interest in
the result of the action which suffices to justify him in main
taining the defendant (as in the British Cash case itself) or, as
it might equally well be, the plaintiff. This leads me to conclude
that a person who has a legitimate and genuine business
interest in the result of an action must be taken for the
purposes of the rule against maintenance to have an interest
recognized by the law in the subject-matter of the action.
Accordingly, I would hold that an association of a number of
persons individually interested as riparian owners or holders of
fishing rights in the preservation from pollution of the waters of
various rivers in different parts of the country could, without
being guilty of the crime or tort of maintenance, support with
any funds at their disposal actions brought by individual mem
bers to restrain the pollution of the rivers to which the interests
of those members related. In this simple hypothetical case, each
member of the association would have legal rights in relation to
some particular river which he would be entitled to protect by
bringing an action against any person wrongfully polluting it,
and would have a legitimate and genuine business interest in
contributing to the financial support of an action brought by
any other member to protect that other member's legal rights,
whether in relation to the same or some other river, in the
shape of his expectation as a member of the association that in
the event of his own legal rights being infringed he in his turn
would receive from his fellow members similar support in the
prosecution of any action he might find it necessary to bring for
the purpose of protecting those rights.
The plaintiff, in my opinion, is in quite a differ
ent position. It is not supporting an action, or
actions, brought by its individual members who
have property rights, as occupiers, said to be
affected. The plaintiff itself purports to bring the
suit, based on assignments of the individual causes
of action.
In Trendtex Trading Corpn. v. Credit Suisse,
[1982] A.C. 679 (H.L.), Lord Roskill said at
pages 702-703:
My Lords, just as the law became more liberal in its
approach to what was lawful maintenance, so it became more
liberal in its approach to the circumstances in which it would
recognise the validity of an assignment of a cause of action and
not strike down such an assignment as one only of a bare cause
of action. Where the assignee has by the assignment acquired a
property right and the cause of action was incidental to that
right, the assignment was held effective. Ellis v. Torrington
[1920] 1 K.B. 399 is an example of such a case. Scrutton L.J.
stated, at pp. 412-413, that the assignee was not guilty of
maintenance or champerty by reason of the assignment he took
because he was buying not in order to obtain a cause of action
but in order to protect the property which he had bought. But,
my Lords, as I read the cases it was not necessary for the
assignee always to show a property right to support his assign
ment. He could take an assignment to support and enlarge that
which he had already acquired as, for example, an underwriter
by subrogation: see Compania Colombiana de Seguros v.
Pacific Steam Navigation Co. [1965] 1 Q.B. 101. My Lords, I
am afraid that, with respect, I cannot agree with the learned
Master of the Rolls [1980] Q.B. 629, 657 when he said in the
instant case that "The old saying that you cannot assign a 'bare
right to litigate' is gone." I venture to think that that still
remains a fundamental principle of our law. But it is today true
to say that in English law an assignee who can show that he has
a genuine commercial interest in the enforcement of the claim
of another and to that extent takes an assignment of that claim
to himself is entitled to enforce that assignment unless by the
terms of that assignment he falls foul of our law of champerty,
which, as has often been said, is a branch of our law of
maintenance. For my part I can see no reason in English law
why Credit Suisse should not have taken an assignment to
themselves of Trendtex's claim against C.B.N. for the purpose
of recouping themselves for their own substantial losses arising
out of C.B.N.'s repudiation of the letter of credit upon which
Credit Suisse were relying to refinance their financing of the
purchases by Trendtex of this cement from their German
suppliers.
The plaintiff (assignee) here does not have, to
my mind, a genuine commercial interest in the
enforcement of the claims of the occupiers of
property in the Reesor Road area. As I see it, the
plaintiff has not, at the outset, any commercial
interest at all.
Counsel for the plaintiff argued the plaintiff had
status to claim injunctive relief, and declaratory
relief, based on the challenges to the constitutional
and statutory authority of the defendants to pro
ceed; on the alleged contravention of federal and
provincial statutes and regulations; on alleged
breach of principles of natural justice, or of the
duty of fairness; and contravention of section 7 of
the Charter.
In respect of those matters, it is said the plaintiff
has standing to bring, in effect, a representative
action. Wiswell et al. v. Metropolitan Corpn. of
Greater Winnipeg, [1965] S.C.R. 512 was cited. I
do not find that decision of assistance on this
point. The action was for a declaration that a city
zoning by-law was invalid. The plaintiffs were
three home-owners and residents in an area affect
ed by the new zoning by-law. The three were
members of a particular association of home
owners in the area. The action was on behalf of
themselves, and all other members of the associa
tion. The question of status, or representative
action, was never raised or discussed.
Nor do I think Palmer et al. v. Nova Scotia
Forest Industries (1983), 2 D.L.R. (4th) 397
(N.S.S.C.) helps the plaintiff. The action was for a
quia timet injunction restraining the defendant
from spraying herbicides on eleven different land
areas. The individual plaintiffs were each resident
in one of the eleven sites. They each sued on behalf
of themselves and representative of others at or
near the particular land sites. The action was held
to be a proper representative action. The plaintiffs
then had a common interest—a risk to health—
and a common grievance; the relief sought was
beneficial to all.
In the present case, the plaintiff has no common
interest with the occupiers of property in the
Reesor Road area. One of the main risks alleged
here is that of radiation hazards, such as escape of
radon gas—a risk to health. There can be no
health hazard to the plaintiff. In fact, no harm of
any kind.
The proper method in this litigation would have
been to have one, or several, individual occupiers
bring action on their own behalf, and on behalf of
others whose occupiers' rights might be affected
by the proposed storage facility, and the acts, or
non-acts, of the defendants giving rise to the
claims for declaratory relief.
Counsel for the plaintiff put forward the trilogy
of Supreme Court of Canada decisions dealing
with the question of standing: Thorson v. Attorney
General of Canada et al., [1975] 1 S.C.R. 138;
Nova Scotia Board of Censors v. McNeil, [1976]
2 S.C.R. 265; Minister of Justice of Canada et al.
v. Borowski, [1981] 2 S.C.R. 575.
Martland J., in the Borowski case, summarized
the effect of the preceding decisions at pages
597-598:
The legislation proposed to be attacked has a direct impact
upon the unborn human foetuses whose existence may be
terminated by legalized abortions. They obviously cannot be
parties to proceedings in court and yet the issue as to the scope
of the Canadian Bill of Rights in the protection of the human
right to life is a matter of considerable importance. There is no
reasonable way in which that issue can be brought into court
unless proceedings are launched by some interested citizen.
In the light of the Thorson and McNeil cases, it is my
opinion that the respondent should be recognized as having
legal standing to continue with his action. In the Thorson case,
the plaintiff, as an interested citizen, challenged the constitu
tional validity of the Official Languages Act. The legislation
did not directly affect him, save in his position as a taxpayer.
He had sought, without avail, to have the constitutional issue
raised by other means. He was recognized to have status. The
position is the same in the present case. The respondent is a
concerned citizen and a taxpayer. He has sought unsuccessfully
to have the issue determined by other means.
In the McNeil case, the plaintiff was concerned about cen
sorship of films in Nova Scotia. He had sought by other means
to have the validity of the Theatres and Amusements Act
tested, but without success. In that case there were other classes
of persons directly affected by the legislation who might have
challenged it. Nonetheless, he was recognized as having legal
standing because it also affected the rights of the public. The
position of the respondent in this case is at least as strong.
There are in this case no persons directly affected who could
effectively challenge the legislation.
I interpret these cases as deciding that to establish status as a
plaintiff in a suit seeking a declaration that legislation is
invalid, if there is a serious issue as to its invalidity, a person
need only to show that he is affected by it directly or that he
has a genuine interest as a citizen in the validity of the
legislation and that there is no other reasonable and effective
manner in which the issue may be brought before the Court. In
my opinion, the respondent has met this test and should be
permitted to proceed with his action.
This plaintiff, in my opinion, does not fall within
the principles outlined above. The challenges
asserted by the plaintiff do not affect any rights it
might have under the impugned legislation. Here,
there are individual members—or persons—direct-
ly affected "who could effectively challenge the
legislation".
I refer also to Rosenberg et al. v. Grand River
Conservation Authority et al. (1976), 12 O.R.
(2d) 496 (C.A.), at pages 501-507.
Finally, for the plaintiff corporation, it is said it
has status because it is entitled to litigate the
allegation that:
... the proposed activities ... will or are likely to cause a
deprivation to the Plaintiffs members of life or security of the
person except in accordance with the principles of fundamental
justice, contrary to s. 7 of the Canadian Charter of Rights and
Freedoms.
The Charter violation is obviously based on the
assertion that the life or security of the individual
members may be affected. The plaintiff, as a
corporation, cannot, in the circumstances, here, be
deprived of any life or security.
As I have earlier indicated, any such claims
must be brought and put forward by individual
plaintiffs.
I find the plaintiff corporation has not, in the
circumstances of this case, the right to bring this
action.
In case I should be wrong in that conclusion, I
shall deal with the action on the merits.
EDITOR'S NOTE
While all of the experts agreed that the Malvern
soil was contaminated, they could not agree on
the level of radioactivity or on the risks to health
and safety which it posed. The problem of what to
do with this soil had been under consideration for
a number of years. It had political implications.
The decision to remove the soil to Reesor Road
was made without consulting area residents. The
plan was to place the soil within a polyethylene
envelope and the facility was to be secured by
monitoring devices and a fence.
His Lordship pointed out that it was not for the
Court to intervene in the political debate over the
site to be chosen but rather to decide whether the
interim facility at Reesor Road would interfere with
the land occupiers in that locality. Reference was
made to a passage in Fleming, The Law of Torts,
in which the author indicated that the harmful
interference which founds an action in nuisance
may consist in the existence of a reasonable fear
for one's safety or health. Thus, certain interests
of personality which, standing alone, receive but
limited protection from the law, are more ade
quately safeguarded when asserted in connection
with the use and enjoyment of land.
The Court was satisfied that, from a
hydrogeologic point of view, the Reesor Road site
was reasonably adequate. Evidence was given by
psychologists as to the stress experienced by
residents of the semi-rural Reesor Road area
resulting from the proposal to store radioactive
waste in their neighbourhood. The "little, ordinary
people" of the region also testified. They made
excellent witnesses. Their fears were neither fan
ciful nor groundless. But the plaintiff had failed to
bring forward any evidence of actual risk to health
because of those fears.
Ten experts were called for the defence on the
nuisance issue. These well-qualified witnesses
were from various disciplines and their evidence
was not destroyed upon cross-examination. The
Court accepted the opinion evidence of the
defendants' medical witnesses which was to the
effect that the soil, if stored in the proposed
facility, would present no hazard to human health
or safety. The Court also went along with defence
evidence that the plastic envelope and the other
components of the facility would be adequate, for
the ten year period projected, to prevent the
escape of radium decay products. The sugges
tion that the envelope could be penetrated by
burrowing woodchucks was rejected as unlikely.
In the end, the plaintiff had not proven that the
facility would create any interference with the
rights of the occupiers of land in the Reesor Road
area.
The plaintiff corporation could not be heard to
complain of lack of fairness in not being consulted
before the decision to bring the soil to Reesor
Road was announced since it had not yet been
created. While the residents might have a com
plaint, they are not parties to this action. Municipal
law cases dealing with zoning changes did not
assist the plaintiff. It could not be said that there
was here a change in land use. There was no
change in the use of land in the whole area.
As to the attack based on the general duty of
fairness, the plaintiff had gone after the wrong
parties: it was the Province of Ontario which had
selected the Reesor Road site. The decision to
choose Reesor Road and not to give area resi
dents any advance warning was a political one
made by Tom Wells, the Minister of Intergovern-
mental Affairs. The Government of Ontario had
been barraged by stacks of letters inquiring as to
when the Malvern soil would be removed. The
evidence did not support the contention that the
defendant, Atomic Energy of Canada Limited, had
participated in the Minister's "scheme". His Lord
ship noted that the Ontario defendants had been
struck out for want of jurisdiction. That was an
unfortunate situation but a reality of our federal
system.
It was wrong to criticize the Reesor Road
people as negative and as exhibiting the "NIMBY"
syndrome. The proposal came as a surprise.
They had no input. North American citizens and
taxpayers have, in recent years, often been skep
tical of government actions and promises. Pro
mises, such as that to remove this soil from
Reesor Road to a permanent location within ten
years, have frequently been broken. The plaintiff's
argument of unfairness based on risk-benefit
balancing considerations had to be rejected since
the evidence was that the risk, if any, would be
less in the controlled situation at Reesor Road
than it was under the present circumstances.
None of the plaintiff's evidence made out lack of
fairness in the legal sense.
As to the argument that this project was subject
to the Ontario Environmental Protection and Envi
ronmental Assessment Acts, it was unnecessary
to cite legal authority for the proposition that the
federal Crown was not, as a general rule, bound
by provincial legislation. The evidence did not
support the contention that A.E.C.L. acted herein
as agent for the Province of Ontario. Acting to
gether in a project does not give rise to a relation
ship of principal and agent. In any event, the
Province had, by regulation, exempted the Malv-
ern soil project from the operation of the relevant
Ontario statutes. The Court did not have to con
sider the argument that this regulation was void
since the defendants were not bound by those
statutes.
The defendants' statutory authority to dispose
of the Malvern soil was found in the Atomic
Energy Control Act, R.S.C. 1970, c. A-19, para
graph 10(1)(c) which gives the Minister power to
acquire `prescribed substances". Radium comes
within that class.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.