In the 1960s, the Ontario Department of Highways reconstructed a highway near the appellants’ farm, generating waste asphalt. A substantial quantity of this waste asphalt was deposited on the appellants’ farm as fill. The contractor responsible for the removal of the waste asphalt had agreed with a previous owner of the appellants’ farm to bury the asphalt on the farm. At the date of purchase, the appellants were not aware of the buried asphalt. They claimed to have experienced operational difficulties throughout the 1980s, including cattle and chicken deaths, deformed calves, and low milk production. Consultants found contaminants in the water and claimed to have linked these contaminants to the health problems of the cattle.
Before the case could go to trial, the respondent moved to have the action dismissed because it was not brought within the six-month limitation period set out in s. 7 of the Public Authorities Protection Act. The Ontario Court of Justice (General Division) granted the respondent’s motion for summary judgment. The Ontario Court of Appeal dismissed the appellants’ appeal.
The Supreme Court held that the appeal should be allowed.
It was of the view that the usual six-year limitation period set out in s. 45(1)(g) of the Limitations Act applied, not the abbreviated six-month limitation period provided for by s. 7 of the Public Authorities Protection Act. The discoverability date was no earlier than 1989, when the appellants first learned of the asphalt on their land. Since the statement of claim was issued in March 1994, it was within the six-year limitation period.
Not every duty and power of a public authority came within the protections of the Public Authorities Protection Act. The reference to the “intended execution of any statutory or other public duty or authority” in s. 7 limited the protection to public duties and confirmed that a public authority could well have other duties that were essentially of a private nature. In this case, the activity of disposing of waste asphalt was an operational decision of a predominantly private character. Although the repair of the highway itself was a public duty, there was no statutory requirement to bury waste asphalt on private lands. Moreover, while the duty of repairing a public highway entailed a public aspect, the activity at issue in this case (the disposal of waste asphalt) was not inherently of a public nature, but was more of an internal or operational nature having a predominantly private aspect.
The Department of Highways, or its agent, was not under a duty to dispose of the waste asphalt on private lands. Finally, the appellants’ claim did not relate to the exercise by the respondent of a public power or duty. Instead, it related to an operational decision made incidentally to the exercise of a public duty.