Canada’s top court rejects appeal in Ottawa dry cleaner contamination case

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An Ottawa-based dry cleaner found liable for $1.63 million in remediation costs related to the spill of degreaser chemicals between 1960 and 1974 has been denied an appeal by the Supreme Court of Canada.

The dry cleaning chemicals were discovered in 2002 in the land and groundwater on two Bank Street properties owned by Eddy Huang.

An Ontario Superior Court of Justice trial judge in 2017 found Fraser Hillary’s Limited, an Ottawa dry cleaning service formed in 1949, liable in nuisance and under the Canadian Environmental Protection Act. In the judgment, the court also awarded more than $200,000 for engineering costs incurred before trial.

The ruling was upheld on appeal in Ontario.

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Huang alleged that the dry cleaning chemicals were allowed to enter the ground via dry cleaning filters and products stored at the dry cleaner and through the building’s basement sump pump. He testified that, as a result of the contamination, his bank would not advance any funds and would not renew his existing mortgage.

In 1974, the dry cleaner brought in new equipment that eliminated the risk of chemical contamination, but the damage had been done.

The court heard technical evidence from two experts, Brian Byerley of Golder Associates Ltd., and Dr. David Reynolds of Geosyntec Consultants, about perchloroethylene (PCE), a chemical solvent commonly used as a degreaser in the dry cleaning industry. They explained that PCE is denser than water, considered a probable carcinogen, and was declared toxic in 1997 under the Canadian Environmental Protection Act.

“When PCE impacts the ground, it does not migrate straight down,” states court documents from the experts’ testimony. “It chooses the path of least resistance and can spread out over a large area as it breaks down and falls apart during its descent through the ground. As a result, the final resting place of Dense Non-Aqueous Phase Liquid (DNAPL) may not be where it originally impacted the ground. Since it can spread out and migrate below the ground – both horizontally and vertically, there can be a large surface area that can have traces of DNAPL.”

PCE and TCE (trichloroethylene) levels in groundwater and soil across portions of the properties exceeded government standards.

The Supreme Court does not issue reasons for denying a leave to appeal.

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