The Plaintiffs purchased land that was previously owned by Chrysler Canada Inc. and had, at one time, been used as a foundry and asbestos insulation producer. Before selling the land, Chrysler had decommissioned it. The Plaintiffs subsequently brought a claim in negligence for decommissioning the property and failing to remediate it, among other claims. Later, the Plaintiffs sought to amend the Statement of Claim by adding the tort of nuisance for the pollutants emanating from the land and interfering with the Plaintiffs' use and enjoyment of the land. The motion judge denied the amendment finding that there was no tenable claim in nuisance. The Plaintiffs appealed, arguing that the scope of the tort of nuisance has not been finally settled at common law and the claim should be allowed to proceed.
The Court of Appeal disagreed and dismissed the appeal. One of the factors in deciding whether to amend a pleading under Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is whether the amendment would have been struck out if originally pleaded. Applying the analysis of Hunt v Carey Canada Inc.,  2 S.C.R. 959 a claim will be struck if it has no reasonable chance of success, and the Court of Appeal concluded that such was the case with the current nuisance claim:
"The appellants are effectively arguing that they should be entitled to seek to fundamentally change the law of nuisance. That would be a tenable position, if for example, the appellants sought to expand the tort to a new fact situation not before considered. However, the tort of nuisance has certain defined, long-standing characteristics, which courts have considered to be essential to the tort. In particular, the alleged nuisance must originate somewhere other than on the plaintiff's land. In this case, the appellants seek to establish the tort where the essential character is missing. Their claim has no reasonable chance of success." [emphasis added] [para. 8]
The full decision can be found here.