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Environment • Aboriginal • Energy

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October 11, 2016

How Should Plaintiffs Quantify Their Losses Due to Contamination? Property Appraisal or Remediation Estimate?

In civil lawsuits for losses due to soil and groundwater contamination, plaintiffs often quantify their damages as either:

  • the cost to remediate their property
  • the loss in market value of their property, or
  • both

In Midwest Properties Ltd. v Thordarson ("Midwest"), the Ontario Court of Appeal held that the Court’s preferred method is to quantify damages by evaluating the cost to remediate the plaintiff’s property.

Interestingly, Midwest does not reference Cousins v McColl Frontenac Inc ("Cousins"), where the New Brunswick Court of Appeal previously affirmed the opposite – namely, that a reasonable award of damages is the loss in market value of the property.

How do plaintiffs reconcile these different approaches?

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