Court of Appeal for Ontario

Date: 2017-11-06 Docket: C63572

Judges: Sharpe, Rouleau and Fairburn JJ.A.

Between

Sorbam Investments Ltd. Plaintiff (Appellant)

and

Alan David Litwack, Gary Michael Litwack and Deborah Ruth Litwack, in their capacity as Estate Trustees of the Estate of Moses Litwack, deceased, Samuel Litwack and 1129892 Ontario Limited Defendants (Respondents)

Counsel

Michael Hebert, for the appellant

Tamara Farber, for the respondents

Heard and Released

Heard and released orally: November 1, 2017

On appeal from the order of Justice E. Sheard of the Superior Court of Justice, dated February 24, 2017.

Reasons for Decision

[1] We see no error on the part of the motion judge granting summary judgment to dismiss the appellant's claim in both nuisance and negligence in relation to contamination of their lands. The motion judge carefully reviewed the record and concluded that the appellant had failed to produce evidence of negligence or that the respondents knew or ought to have known the facts necessary to ground an action in nuisance.

[2] We do not agree with the appellant's submission that the record supports a possible negligence claim for failure to inspect or supervise the activity of dry cleaners who were tenants on the appellant's lands. The record indicates no more than the respondents leased part of their lands to dry-cleaning businesses. That, standing alone, is not sufficient to trigger a duty to a neighbouring land owner to inspect or supervise the activity of the tenant.

[3] Nor do we agree that the Patterson Reports obtained by the respondents while they still owned the property were sufficient to put them on notice of contamination from their land moving to the lands of the appellant. The Patterson Reports indicated that there was some contamination on the respondents' lands but that remediation was not required. There was nothing in the Patterson Reports to indicate that the contamination had migrated to the appellant's lands. Indeed, the report suggests that the water flow was in the other direction.

[4] Accordingly the appeal is dismissed with costs to the respondents fixed at $25,000, inclusive of taxes and disbursements.

"Robert J. Sharpe J.A."

"Paul Rouleau J.A."

"Fairburn J.A."