Heather C. Devine

The applicant purchased a contaminated property from the respondent.

The agreement of purchase and sale required the respondent to remediate the property to specific Ministry of Environment standards using in situ injections.

After several unsuccessful injection attempts, the respondent's experts proposed a Site Specific Risk Assessment (SSRA) instead of further injections or excavation.

The applicant sought specific performance of the remediation or funds to complete it, while the respondent sought a declaration that an SSRA satisfied its obligations.

The court found insufficient evidence regarding current contamination levels, the feasibility of excavation, and the impact of an SSRA on property value, and ordered the parties to obtain further expert evidence using trust funds before making a final determination.

Following a successful motion striking the plaintiff’s statement of claim, certain defendants sought costs including substantial indemnity costs.

The court considered the parties’ extensive submissions regarding delay, cross-examinations, and the complexity of the motion.

While the defendants were wholly successful and entitled to costs, the court declined to award substantial indemnity costs, finding the plaintiff’s conduct did not rise to an abuse of process.

The court awarded partial indemnity costs and rejected the plaintiff’s request to stay the costs determination pending the outcome of a human rights application in another forum.