The Weakest Link? Evaluating Private Nuisance Liability in Ontario's Environmental Law Context

The Court of Appeal for Ontario's decision in Smith v Inco Ltd illustrates the degree to which the law of private nuisance and Rylands v Fletcher liability has evolved over the last hundred and fifty years from strict(ish) liability tort doctrines to fault-based means of recovery. Inco also offers an opportunity to consider whether this evolution has left some wronged landowners behind.;This work considers the evolution of private nuisance and Rylands liability into the tort doctrine(s) they are today, and illustrates the Province of Ontario's statutory response to that evolution in the environmental contamination context. Ontario's common law and statutory environmental compensation regime is then evaluated in the context of four distinct measures of wrongfulness from two theoretical schools of liability. Where Ontario's regime is found to permit wrongful loss without recovery, statutory changes to extend rights of compensation to all landowners suffering wrongful loss are proposed.