minicounsel

CITATION: Sorbam Investments Ltd. v. Litwack, 2017 ONSC 706

COURT FILE NO.: 12-53595

DATE: 2017/02/24

BETWEEN:

SORBAM INVESTMENTS LTD.

Plaintiff

– 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

Michael S. Hebert, for the Plaintiff

Tamara Farber, for the Defendants and Moving Parties, Alan David Litwack, Gary Michael Litwack and Deborah Ruth Litwack, in their capacity as Estate Trustees of the Estate of Moses Litwack, deceased, and Samuel Litwack

HEARD: January 16, 2017 at Ottawa

Introduction

1Alan David Litwack, Gary Michael Litwack and Deborah Ruth Litwack, in their capacity as Estate Trustees of the Estate of Moses Litwack (the “Litwack Defendants”), move for summary judgment under rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing the claim as against them. 1129892 Ontario Limited (“112Co”) had not cross-claimed and did not take part in this motion.

2The plaintiff is suing for damages for the contamination of its land at 1770 Woodward Drive, Ottawa, Ontario (the “Sorbam Lands”). It seeks both the cost of remediation and the diminution in the value of the Sorbam Lands by the “stigma” of contamination.

3Between December 29, 1970 and March 9, 2007, Moses Litwack and his late brother, Samuel Litwack, owned the lands that abut the Sorbam Lands (the “Litwack Lands”). The Litwack Lands were rented to commercial tenants. Moses Litwack died after the litigation began. Samuel Litwack is 82 years old and in ill health.

4On March 9, 2007, 112Co completed the purchase of the Litwack Lands and owned the Litwack Lands as at the date of the motion. In the course of the purchase by 112Co, an environmental site assessment was undertaken of the Litwack Lands. In the Phase II assessment, report contaminants (“PCE”) exceeding the Ministry of the Environment’s guideline limits were found in a groundwater monitoring well drilled on the Litwack Lands (see Paterson Group Inc. (“Paterson”) Report dated October 17, 2006, at p. 8).

5In 2010, environmental testing was conducted of the Sorbam Lands which revealed contamination. The plaintiff claims that the Sorbam Lands have been contaminated by certain chemicals which were used in or are related to dry-cleaning operations. The plaintiff further claims that a former commercial tenant on the Litwack Lands operated a dry-cleaning operation, which was the source of the contamination discovered on the Sorbam Lands.

6There is some evidence from the Litwack Defendants that they rented or leased the commercial property to Spic ‘N Span dry-cleaners in the early- to mid-1990s. Although the Litwack Defendants deny liability and damages in their pleadings, they submit that this motion can be determined without a court determination of whether Spic ‘N Span, or any other tenant of the Litwack Lands, was the source of the contamination of the Sorbam Lands. The Litwack Defendants argue that, even if the Court were to accept, for the purposes of this motion, that the contamination of the Sorbam Lands originated from the Litwack Lands, either under a written or unwritten tenancy agreement, the action against them ought to still to be dismissed.

Preliminary Evidentiary Issues

7In its factum and at the outset of its oral submissions, the plaintiff objected to the use on this motion of the examination for discovery evidence of Samuel Litwack. The plaintiff asserted that rule 39.04(2) of the Rules of Civil Procedure states that the evidence given on a party’s own examination for discovery cannot be relied upon on a motion for summary judgment unless the other parties consent. The plaintiff does not consent.

8The evidence of Samuel Litwack relied upon by the Litwack Defendants on this motion is his affidavit sworn in his response to the written interrogatories put to him on his examination for discovery. The plaintiff therefore argues that this evidence is the moving party’s discovery evidence. The Litwack Defendants respond that there is nothing in the Rules of Civil Procedure that prohibits the use on a motion for summary judgment of an affidavit sworn in response to written interrogatories. They further argue that the plaintiff never sought to cross-examine Samuel Litwack on his affidavit and first objected to the use of this evidence in its factum, delivered days before the motion. That late notice effectively left the Litwack Defendants with no ability to have Samuel Litwack swear a new affidavit (presumably containing the same evidence).

9On the motion, the plaintiff did not strenuously argue this evidentiary objection and its counsel acknowledged that there was not a lot of controversy about the facts.

10I conclude that the plaintiff’s objection to the use of Samuel Litwack’s affidavit on this motion is technical only. It has caused no prejudice to the plaintiff and rejecting it would only lead to an adjournment to allow for a replacement affidavit to be sworn. For those reasons, I dismiss that objection and allow the evidence of Samuel Litwack to be relied upon on this motion.

11The plaintiff raised a similar objection with respect to the use of the transcript of the plaintiff’s discovery evidence. The plaintiff argued that the Litwack Defendants filed only portions of the examinations for discovery of John McKenna, given on behalf of the plaintiff, and of Terry Wall, given on behalf of 112Co. The plaintiff argued that rule 34.18(3) of the Rules of Civil Procedure provides that a party may file a copy of a portion of transcript on the hearing of the motion only if the other party consent, which consent has not been given.

12In response to that objection, counsel for the Litwack Defendants argued that the plaintiff is too late in making its objection to the use of this evidence: the Litwack Defendants’ Notice of Motion was served on August 3, 2016, more than five months before the motion date; and their Motion Record was served on December 6, 2016, more than 40 days before the motion date. At no time prior to January 10, 2017, six days before the motion was argued, did the plaintiff raise any issue with the evidence to be put before the Court. Given the late notice of the plaintiff`s objection, the Litwack Defendants did not have sufficient time to obtain a transcript of the complete examination for discovery of those witnesses. One logical consequence of allowing the objection would be to adjourn the motion so a transcript could be ordered. Neither party sought that remedy.

13The Litwack Defendants further argued that they did produce the full transcript of their examination to the plaintiff — the balance of the plaintiff’s examination for discovery was conducted by counsel for 112Co.

14I conclude that the plaintiff’s objection to the use of this transcript evidence is a technical one and that admitting this transcript evidence will not be prejudicial to the plaintiff. In addition to the reasons put forth by the Litwack Defendants, I also consider that the plaintiff has not argued that the excerpts from the transcript of their representative’s examination for discovery are not representative of the evidence given or that they mislead the Court. Accordingly, I also allow this evidence to be considered in determining this motion for summary judgment.

Motion for Summary Judgment

15 Rule 20.04(2)(a) of the Rules of Civil Procedure provides:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence....

16 Rule 20.04(2.1) of the Rules of Civil Procedure sets out the powers of the court on a motion for summary judgment:

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

(1) Weighing the evidence.

(2) Evaluating the credibility of a deponent.

(3) Drawing any reasonable inference from the evidence.

17The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, guides the Court on a summary judgment motion. The governing principles can be found at paragraphs 49 and 50:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

18The plaintiff asserts that there are numerous issues requiring a trial. Briefly, the plaintiff asserts that a trial is required to determine:

(1) whether the Litwack Lands are the source of the contamination of the Sorbam Lands;

(2) whether the Sorbam Lands were contaminated while the Litwack Defendants owned the Litwack Lands; and

(3) whether the Litwack Defendants knew the activities of its tenant (assumed to be Spic ‘N Span), could, or did, contaminate the Sorbam Lands.

19The Litwack Defendants argue that, for the purposes of this motion, the Court does not need to determine issues (1) and (2). With respect to issue (3), the Litwack Defendants assert that there is sufficient evidence, including admissions or acknowledgements by the plaintiff, upon which this Court could and should determine that issue without a trial. They argue that the evidence shows that the Litwack Defendants did not use, own, or control chemicals; did not authorize the use of chemicals; did not know anything about any use of chemicals; did not know anything about migration of contaminants to the Sorbam Lands; and did not authorize any nuisance on Litwack Lands.

Analysis: Motion for Summary Judgment

20The evidence on the motion included the written questions for discovery of Samuel Litwack; the Litwack Defendants’ Request to Admit and the Responses to the Request to Admit from the plaintiff and from 112Co; the affidavit of Alan Litwack, the son of the late Moses Litwack, sworn December 6, 2016; the pleadings; the affidavit of John McKenna (the plaintiff`s property manager), sworn January 5, 2017, to which is attached the various environmental assessment reports and related documents obtained by the plaintiff; and the January 5, 2017 affidavit of Kenneth Raven, an engineer, geoscientist and principal of Geofirma Engineering Ltd., which was retained by the plaintiff, to, in part, review the various environmental site assessment reports prepared in respect of the Litwack Lands and the Sorbam Lands.

21Based on the ample evidence before me, I am satisfied that I am able to make a fair and just determination on the merits of this motion. I agree with the moving party that this Court does not need to decide issues (1) and (2), above. A determination of those issues would require a trial. I conclude that for the purposes of this motion, the Court need only determine issue (3), which is appropriately determined on a motion for summary judgment.

22On this motion for summary judgment, the Court is able to determine whether the Litwack Defendants are liable to the plaintiff. The facts are largely not in dispute and there are no issues of credibility that would require a trial. Therefore, the Court can make the necessary findings of fact and apply the law to the facts, which is a proportionate, expeditious, and less expensive means to achieve a just result. Further, there is no need to resort to the evidentiary powers available under rule 20.04(2.1) of the Rules of Civil Procedure.

23As invited to do so by the Litwack Defendants, for the purposes of this motion, I make the following assumptions:

(1) That a tenant, including a dry-cleaning tenant, on the Litwack Lands may have been a source of the contamination of the Sorbam Lands; and

(2) That the Litwack Defendants owned the lands at the time the Sorbam Lands were contaminated.

24Based on the evidence before me, I make the following findings of fact:

(1) That the Litwack Defendants did not know that the dry-cleaning tenant was emitting contaminants during its tenancy or rental period;

(2) That the Litwack Defendants had no reason to inquire or make any investigation of the dry-cleaning tenant to determine or verify if the dry-cleaning tenant was emitting contaminants onto the Litwack Lands;

(3) That at no time did the Litwack Defendants notice any actual contamination by the dry-cleaning tenant;

(4) That, prior to September 2006, the Litwack Defendants had no reason to believe that the Litwack Lands were contaminated by a dry-cleaning tenant or that the Litwack Lands were the source of contamination to the Sorbam Lands;

(5) That, after September 2006, the Litwack Defendants were aware of potential and, later, actual contamination of the Litwack Lands;

(6) That, between September 2006 and March 9, 2007, the Litwack Defendants did have reason to and did inquire into whether the Litwack Lands were a potential source of contamination of and from the Sorbam Lands;

(7) That the Litwack Defendants acted reasonably in the investigations they undertook to determine the nature, extent, and source of the contamination of the Litwack Lands;

(8) That the Litwack Defendants acted reasonably in concluding that the contamination of the Litwack Lands emanated from the direction of the Sorbam Lands and not in the direction of the Sorbam Lands; and

(9) That any contamination of the Sorbam Lands existed on or before the Litwack Defendants knew or ought to have known that the Litwack Lands were contaminated.

(See Paterson Reports dated October 17, 2006, at p. 8; December 1, 2006, p. 7; and January 23, 2007)

Potential Heads of Liability

25The plaintiff agrees that there are three possible heads under which liability might be found as against the Litwack Defendants: (1) nuisance; (2) negligence; or (3) pursuant to s. 99(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19 (the “EPA”). The plaintiff concedes that, although pleaded, the Litwack Defendants cannot be found liable under the strict liability doctrine of Rylands v. Fletcher, (1868) L.R. 3 H.L. 330, as there is no evidence that the Litwack Defendants brought the pollutants onto the Litwack Lands.

Nuisance

26The Divisional Court decision of Justice Lederer hearing two motions for leave to appeal to Durling v. Sunrise Propane Energy Group Inc., 2013 ONSC 5830 (“Durling”) provides a very helpful analysis of the tort of nuisance. In Durling, the plaintiffs sought to certify a class action as against a number of defendants (the “Teskey Defendants”).

27Sitting as a single judge of the Divisional Court, Justice Lederer confirmed the lower court’s decision to refuse the certification of the claim as against the Teskey Defendants under certain heads of liability and granted the Teskey Defendants’ motion for leave to appeal the lower court’s certification of the claim under the common law of nuisance. His decision offers an excellent analysis of the various heads of potential liability of the Teskey Defendants: strict liability (Rylands v. Fletcher), nuisance, and negligence.

28The Teskey Defendants included the owners of the lands on which Sunrise Propane Energy Group Inc. operated the propane handling facility which led to the explosion that gave rise to the plaintiff’s claim. The lands had been leased to the other Teskey Defendants, who had in turn sublet to Sunrise. The lease allowed Sunrise to operate a propane handling facility.

29In striking the claim in nuisance against the Teskey Defendants, the motion judge concluded that the pleadings did not disclose a cause of action in nuisance, in strict liability, or in negligence under the Occupiers Liability Act, R.S.O 1990, c. O.2. The cause of action under common law negligence was certified.

30Justice Lederer defined the tort of private nuisance as an “interference with a person’s enjoyment and use of his land”, which included pollution of soil, whether a single escape of noxious things or a continuous or repeated escape of noxious things to the Sorbam Lands (Durling, at para. 43). He adopted the following definition of the tort of nuisance as found in St. Pierre v. Ontario (Minister of Transportation and Communications), 1987 CanLII 60 (SCC), [1987] 1 S.C.R. 906, at para. 10, as quoted in Smith v. Inco, 2011 ONCA 628, 107 O.R. (3d) 321, at para. 42:

A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.

31An issue to be determined by Lederer J. was whether, as Sunrise’s landlords, the Teskey Defendants were liable for the nuisance allegedly caused by Sunrise. Justice Lederer distinguished between strict liability as set out in Rylands v. Fletcher and nuisance, stating that the difference between them lay “not in the nature of the escape, but in whether it could be foreseen” (Durling, at para. 43).

32Justice Lederer reviewed the case law and concluded, at para. 49, that, in nuisance, the “fault of the landowner flows from foreseeability measured at a level close to the nuisance being expected and that expectation accepted.” The question to be asked was whether:

The nuisance was authorized as part of the arrangement by which the land was being used by another. The nuisance was within the contemplation of the parties when the agreement was made. The measure of the required foreseeability ability is that the nuisance be inherently part of the activity to be undertaken on the property. If a landowner leases property for use that would, by its nature, create a nuisance, it bears part of the blame and shares in the responsibility for it (Durling, at para. 49) [Emphasis added].

33Applying the above principles to the case before this Court, the Litwack Defendants, as landlords, would be held liable for the actions or nuisance of their tenants, only “when the use from which the damage or nuisance necessarily arises was plainly contemplated by the lease” (Durling, at para. 54, citing, with approval, Earl v. Reid (1911), 23 O.L.R. 453 (C.A.), as referred to in Aldrich and O’Brien v. Van Patter, Martin and Western Fair Association, 1952 CanLII 127 (ON SC), [1952] O.R. 595 (S.C.). See also Banfai v. Formula Fun Centre Inc. (1984), 1984 CanLII 2198 (ON SC), 51 O.R. (2d) 361 (H.C.)).

34In this case, there is no evidence that the damage or nuisance which may have arisen from the dry-cleaning operation operated on the Litwack Lands was “plainly contemplated” by the tenancy agreement; no lease has been produced and there is no evidence that a lease had ever been entered into. In addition, the admissions made on the examination for discovery of John McKenna on behalf of the plaintiff satisfy me that the applicant’s claim in nuisance against the Litwack Defendants cannot succeed:

(i) The plaintiff had no information to suggest the Litwack Defendants themselves brought contamination onto the Litwack Lands;

(ii) The plaintiff had no information to suggest the Litwack Defendants authorized any of their tenants to contaminate the Sorbam Lands;

(iii) The plaintiff had no information to suggest that the Litwack Defendants were involved in the operation of the dry-cleaners;

(iv) The plaintiff had no knowledge that the Litwack Defendants knew that any chemicals had escaped the Litwack Lands; and

(v) The plaintiff had no information and do not debate the fact that the Litwack Defendants first became aware of the contamination on the Litwack Lands in October 2006 with the receipt of the Paterson Group Inc.’s Phase 2 Environmental Site Assessment Report, dated October 17, 2006.

35In addition to the admissions of the plaintiff was the evidence of Samuel Litwack: he never saw any chemicals nor was he aware of the use of any chemicals or equipment by any dry-cleaner who had leased the Litwack Lands. Moreover, he had no reason to suspect that there was ever a spill of chemicals and he never saw any chemicals or hazardous materials stored by Spic ‘N Span or any other dry-cleaning operation that carried on operations on the Litwack Lands. Sam Litwack never saw chemicals or hazardous materials disposed of by Spic ‘N Span or any other dry-cleaning operation that carried on operations on the Litwack Lands. Finally, the first and only investigations conducted on the Litwack Lands were in the fall of 2006.

36Based on the plaintiff’s admissions and the evidence of Samuel Litwack, there is no evidence that could satisfy the test for nuisance, namely, that the contamination, if any, which may have been caused by Spic ‘N Span when it was a tenant of the Litwack Lands in the 1990s, was plainly contemplated by the lease or tenancy agreement. To the contrary, all of the evidence leads to the conclusion that the nuisance, which may or may not have been created by Spic ‘N Span, was neither foreseen nor foreseeable as “inherently part of the activity to be undertaken” by Spic ‘N Span on the Litwack Lands.

37I conclude that there is no evidence upon which a court could reasonably conclude that it was foreseeable by the Litwack Defendants, or at all, that the operation of a dry-cleaner would, by its nature, create a nuisance.

38For the foregoing reasons, I conclude that the claim of nuisance against the Litwack Defendants cannot succeed and should therefore be dismissed.

Negligence

39The elements of negligence are well-known. To succeed in a negligence claim the plaintiff must show that:

(1) The defendants owed a duty of care to the plaintiff;

(2) The defendants breached the standard of care;

(3) The plaintiff sustained damages as a result;

(4) The damages were caused, in fact and in law, by the breach of the standard of care (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3).

Do the Litwack Defendants Owe the Plaintiff a Duty of Care?

40The plaintiff asserts that the Litwack Defendants do owe them a duty of care as the owners of the adjacent property to avoid acts and omissions that might cause harm to the plaintiff. The plaintiff argues that the Litwack Defendants leased their property to a dry-cleaner without taking any steps to confirm that the dry-cleaner’s operations did not or would not cause harm to the plaintiff.

41The Litwack Defendants respond that, to establish the duty of care, they would have to have had some knowledge that the harm allegedly suffered by the plaintiff was reasonably foreseeable.

42In granting leave to appeal to the Divisional Court, Justice Lederer concluded that

the mere fact of ownership of land where, through a lease, exclusive possession and quiet enjoyment have been given to another, cannot be enough to demonstrate the proximity necessary to establish a duty of care owed by the landlord to neighbours…. It would change the nature of the landlord/tenant relationship. To protect itself from liability, the landlord would be required to play a role in the activities being carried out on the property. The mere fact that a party is a landlord does not demonstrate the proximity necessary to establish a duty of care (Durling, at para. 93).

43In Durling, the plaintiffs had argued that the provisions of the lease that allowed the landlord to enter, inspect, and make repairs was enough to create a duty of care that obligated the landlord to do so. The motions judge had determined just that and held that if the landlord had the right to inspect, it was obligated to inspect, and that a failure to inspect exposed the landlord to liability for any harm to third parties for failing to inspect.

44Justice Lederer concluded that to impose that obligation upon landlords “would require the active involvement of the landlord in the activities on the property in order to protect itself from liability for damage to neighboring properties despite having given up possession and quiet enjoyment of the lands” (Durling, at para. 100).

45The issue was addressed by the Divisional Court that heard the appeal, reported at 2014 ONSC 1041 (“Durling v. Teskey”). The Divisional Court confirmed the decision of the motions judge, who had refused to strike out the claim in common law negligence against the Teskey Defendants. After referring to the well-accepted jurisprudence that the question of whether a duty of care exists is rooted in foreseeability and proximity, the Court noted that “[a] landlord will rarely owe a duty of care to third parties for the negligence of a tenant” (Durling v. Teskey, at para. 10).

46In its decision to allow certification of the common law negligence claim, the Divisional Court noted that the plaintiffs alleged that the Teskey Defendants “knew or ought to have known that inherently dangerous, unsafe and illegal conduct of the tenant over an extended period of time amounted to foreseeability of the catastrophic harm that eventually occurred. In addition to foreseeability, the requirement for legal proximity seems met in this case simply by geographic proximity” (Durling v. Teskey, at para. 10).

47The Court concluded as follows:

The pleading of the defendant’s knowledge and the foreseeability of the risk of catastrophic harm to the class members coupled with an alleged ability to control, manage or reduce the risk is a sufficient basis upon which to conclude that it is not plain and obvious the class members’ common law negligence claim must fail (Durling v. Teskey, para. 13).

48On this key point, the facts in Durling v. Teskey are different from the facts on this motion. Here, the evidence of the Litwack Defendants, to which the plaintiff has admitted, is that the Litwack Defendants had no actual knowledge of any contamination, leak, or spill caused by their tenant. Further, prior to the Phase II Environmental Site Assessment Report, the Litwack Defendants had no reason to suspect or investigate any alleged spill or contamination to the Litwack Lands from Spic ‘N Span or any other tenant of the Litwack Defendants.

Analysis

49At paragraph 12 of its statement of claim, the plaintiff alleges that, as owners of the Litwack Lands, the Litwack Defendants are liable to the plaintiff in negligence as follows:

(a) they failed to take steps to prevent the discharge of contaminants on their property;

(b) they knew or ought to have known that a dry-cleaning operation had been carried on at the Litwack Lands and failed to take steps to investigate and confirm that no contaminant was being discharged into the soil or groundwater

(c) they failed to take steps to prevent the migration of contaminants from the Litwack Lands in, on or beneath the plaintiff’s Lands; and

(d) they failed to take steps to remediate the Litwack Lands and any other “impacted properties”.

50On the motion, the plaintiff argued that, as abutting landowners, the Litwack Defendants owed a duty of care to the plaintiff. There is jurisprudence to support that contention. In Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Ltd., 2014 ONSC 288, 88 C.E.L.R. (3d) 93 (“Canadian Tire”), the parties agreed and the court accepted that the defendant owed a duty of care “as an abutting landowner to avoid acts and omissions that may cause harm to [the neighbouring property]” (at para. 299). Similarly, in Durling v. Teskey, the Court concluded, at para. 10, that the pleading against the defendant landlords ought not to be struck, but that:

A landlord will rarely owe a duty of care to third parties for the negligence of a tenant but the circumstances of this case are out of the ordinary. It is alleged that this landlord knew or ought to have known that that inherently dangerous, unsafe and illegal conduct of the tenant over an extended period of time amounted to foreseeability of the catastrophic harm that eventually can occurred. In addition to foreseeability, the requirement for legal proximity seems met in this case simply by geographic proximity. [Emphasis added.]

51Here there is geographic proximity: as owners of abutting lands, the Litwack Defendants had a duty not to use their property in a way that would pose a foreseeable risk to the Sorbam Lands. Foreseeability is the key issue. Unlike the facts in Durling, here there is no evidence of “inherently dangerous, unsafe and illegal conduct” of a tenant over an extended period of time such as would amount to foreseeability of the harm allegedly suffered by the plaintiff. Without that evidence, the plaintiff cannot succeed in showing that the harm that it has allegedly suffered was foreseeable, or reasonably foreseeable, such as to give rise to a breach of the duty of care owed by the Litwack Defendants.

52The plaintiff has failed to lead any evidence upon which a court could conclude that the damage allegedly suffered by the plaintiff as a result of the Litwack Defendants’ leasing or renting of the Litwack Lands to a dry-cleaner was foreseen or posed a foreseeable risk. Stated differently, with no actual knowledge and no reason to be concerned about the operation of any of the dry-cleaning tenants on their lands, it cannot be said that the Litwack Defendants are in breach of a duty to act or, in fact, failed to act, to prevent the harm allegedly suffered by the plaintiff.

53The plaintiff’s representative admits that the Litwack Defendants had no actual knowledge of any contaminants on the Litwack Lands or ever authorized its tenants to contaminate or authorize their tenants to use chemicals or any knowledge of any chemical escape from their tenants. Again, the state of knowledge of the landlord here is quite different from the landlord in Durling v. Teskey. In the latter, the Court observed that holding a landlord liable was “out of the ordinary”. Renting a commercial property to a dry-cleaner cannot be compared to renting property “for a highly dangerous propane business”, or a business in which “there was a risk of escaping gas, explosion and fire”, “which would likely result” in property damage and personal injury to the class members.

54The plaintiff relied on Canadian Tire for the principle that adjacent property owners owe each other a duty of care to avoid acts and omissions that may cause harm to their neighbour.

55In Canadian Tire, the Court accepted that principle and that the standard care is that of a reasonable person in the circumstances. In Canadian Tire, the abutting property owner was also the occupier of the lands and the entity whose use of the lands caused the contamination of the plaintiff’s lands. Specifically, the Court found that the abutting landowner failed to comply with provincial regulations, which constituted “negligent conduct” (Canadian Tire, at para. 299).

56On the key issue of foreseeability, and without using any new fact-finding powers, I am satisfied that the evidence before me is sufficient to fairly and justly adjudicate the issue on this motion for summary judgment, namely whether the Litwack Defendants are liable to the plaintiff for any losses suffered as a result of any contamination of the Sorbam Lands originating from the Litwack Lands, and, in particular, from a former commercial dry-cleaning tenant operating on the Litwack Lands.

57The parties clearly understand that on a motion for summary judgment they must “put their best foot forward”. In concluding, as I do, that the negligence claim against the Litwack Defendants can be determined on this motion for summary judgment, I consider the admissions made by the plaintiff; the absence of records (i.e. a lease or tenancy agreement with the Spic ‘N Span); the absent or aging memory of the surviving Litwack brother; the death of the other Litwack brother; the dementia of the Litwack property manager; and the historic nature of the contamination. I also consider:

(a) that the plaintiffs have not sued the alleged polluter, Spic ‘N Span;

(b) that Spic ‘N Span was a tenant on the Litwack Lands in the 1990’s and appears to no longer carry on business;

(d) that Moses Litwack, the Litwack brother with the greater hands-on dealing with the property, is now deceased;

(e) that the plaintiff chose not to cross-examine Samuel Litwack on his affidavit providing Answers to Written Interrogatory;

(f) that Samuel Litwack is elderly and in ill health and has limited recollection and/or knowledge of any dry-cleaning tenant;

(g) that the Litwack Defendants are unable to find a lease or tenancy agreement with Spic ‘N Span or to confirm whether there were any references in the lease to obligate the tenant to “remediate in respect of environmental impacts”;

(h) that the plaintiff has no evidence that the Litwack Defendants authorized any tenant to contaminate the land; authorized the use of chemicals that might have been used by the tenants; or had any knowledge of or permitted any chemicals to escape from their own property;

(i) that the evidence of the Litwack Defendants was that they had never been advised of any spill by any dry cleaning tenant on the Litwack Lands or ever received a complaint from a tenant or attendee of the property respecting storage of chemicals or hazardous materials by any dry cleaning operation operating on the Litwack Lands; and

(j) that there is no evidence before the Court on this motion upon which to find that the Litwack Defendants knew or ought to have known that the dry-cleaning operation on the Litwack Lands could be considered “highly dangerous” and/or that the lease or tenancy agreement with the dry-cleaning operation would be accompanied by a risk to property damage to the Litwack Lands or to the Sorbam Lands.

58As stated above, the facts in this case are markedly different from those in Durling. Here, the landlord had no actual knowledge of any contaminants; of any release of contaminants; of any safety risks or breaches; or of any dangerous activity, authorized by the lease/tenancy agreement or otherwise. The landlord had no reason to make inquiries or to in any way monitor the activities of its tenant.

59I adopt the analysis of Justice Lederer and conclude that in the circumstances of this case, the Litwack Defendants, as landlords, did not have a continuing responsibility to monitor the activities of its tenant or to oversee or ensure that any regulatory body had properly discharged its regulatory obligations to monitor the activities of its tenant.

60Based on the evidence, this does not appear to be one of those rare cases in which a landlord owes a duty of care to third parties; the facts cannot be said to be “out of the ordinary”.

Is there a duty owed after the Litwack Defendants discover contamination?

61The plaintiff argues that the court must look at two periods of time: prior to October 2006, during which time the Litwack Defendants had no knowledge of any contamination; and post-October 2006, following the Litwack Defendants’ discovery of contamination on their land. The plaintiff argues that after discovering that their own land was contaminated, the Litwack Defendants knew or ought to have known that the Sorbam Lands were similarly contaminated. The plaintiff asserts that it should then have been obvious that the contamination was also on the plaintiff’s lands and yet the Litwack Defendants failed to take any steps to “remediate or to prevent the migration of contaminants to the Sorbam Lands” (Plaintiff’s Factum, at para. 22).

62Although the Litwack Defendants, as landlords, did not and could not have foreseen harm to the Sorbam Lands by reason of the alleged acts or omissions of a tenant, once they discovered contamination, did the Litwack Defendants owe a duty of care to the plaintiffs as an abutting property owner who has discovered contamination on their own land? The plaintiff argues that the Canadian Tire decision says exactly that.

Duty of care owed to an adjoining landowner

63Again, the facts in Canadian Tire are very different from the facts here. Firstly and perhaps most importantly, the neighbouring landowner in Canadian Tire was also the alleged polluter. The defendant, Huron Concrete, admitted that it operated a private fuel outlet on its property; stored gasoline in underground storage tanks; and conceded that leaks in underground tanks can go undetected. Huron Concrete admitted that it did not comply with the regulatory standards and other environmental regulation, which the court concluded constituted “negligent conduct”. There is no such evidence here and, for the reasons identified above, there is no reason to believe that a trial would unearth new evidence, different from that put forward on this motion.

64The plaintiff asserts that the Litwack Defendants ought to have done something when they discovered their own property was polluted. Again, the plaintiffs do not identify the act or omission of the Litwack Defendants after they discovered contamination on their property.

65The Litwack Defendants respond that, even after discovering contamination on their lands, they had no reason to believe that, if they failed to take some action, they would cause harm to the plaintiff. They say that they obtained environmental reports from a qualified expert, Paterson (whose reports were produced on the motion), and reasonably relied upon the conclusions reached by Paterson that:

(a) the source of the contamination was historic and that there was no ongoing commercial operation that could be identified as a source of the pollution — a conclusion also reached by the plaintiff’s expert;

(b) the directionality of the underground water could reasonably lead to the conclusion that the contamination came from the plaintiff’s lands; and

(c) remediation was not required, despite that the level of pollution exceeded Ministry of the Environment limits — annual monitoring would suffice.

66Even after the discovery of PCE in the groundwater of borehole 4 (BH4) that exceeded Ministry limits, the duty owed by the Litwack Defendants must be assessed in the context of foreseeability.

67The Paterson reports state, and the parties agree, that the contamination is historic and there is no current or ongoing business or commercial operation causing contamination. Moreover, in its Statement of Claim (at para. 12(d)) the plaintiff asserts that the Litwack Defendants failed to remediate the Litwack Lands and “any other impacted properties”.

68The plaintiff argues that, after the Litwack Defendants discovered contamination on the Litwack Lands, “it should have been obvious that the contamination was on the Sorbam’s Lands as well” and yet they failed to take any steps to remediate or prevent migration of contaminants to the Sorbam Lands (Plaintiff’s Factum, at para. 42(b)).

69On the issue of foreseeability of harm to the plaintiff, the Litwack Defendants point to the Paterson reports. They say that they acted reasonably in accepting the advice and recommendations made by Paterson who stated that remediation was unnecessary. In addition, Paterson concluded that the groundwater flow was away from the Sorbam Lands (Paterson Report dated December 1, 2006, at p. 7).

70The plaintiff asserts that its lands were contaminated in 2006. Assuming that the plaintiff can prove that allegation, then by the time the Litwack Defendants had discovered the contamination, the damage to the Sorbam Lands had been done.

71If the plaintiff cannot prove that its lands were contaminated prior to 2010 — when they were first tested — then it cannot succeed on its claim against the Litwack Defendants, who sold the property in March 2007.

72In argument, the plaintiff asserted that the Litwack Defendants were negligent in failing to ensure compliance with Paterson’s recommendation that “consideration may be given to conducting an annual groundwater sampling program, at least for several years, to confirm our current opinion of the site condition and assess the effects of natural attenvation (sic)” (Paterson Report dated December 1, 2006, at p. 7).

73The Litwack Defendants respond that they had no such obligation. Moreover, after the Litwack Lands were sold, they had no right to conduct any testing or to interfere in any way with the Litwack Lands then owned by 112Co.

74For all the foregoing reasons, I conclude that the plaintiff could not succeed in their allegations of negligence as against Litwack Defendants and that the plaintiff’s claim under that heading of liability should be, and is, hereby dismissed.

Section 99 of the EPA

75 Sections 99(1) and (2) of the EPA provides as follows:

Compensation, spills

(1) In this section,

“loss or damage” includes personal injury, loss of life, loss of use or enjoyment of property and pecuniary loss, including loss of income.

Right to compensation

(2) Her Majesty in right of Ontario or in right of Canada or any other person has the right to compensation,

(a) for loss or damage incurred as a direct result of,

(i) the spill of a pollutant that causes or is likely to cause an adverse effect,

(ii) the exercise of any authority under subsection 100 (1) or the carrying out of or attempting to carry out a duty imposed or an order or direction made under this Part, or

(iii) neglect or default in carrying out a duty imposed or an order or direction made under this Part;

(b) for all reasonable cost and expense incurred in respect of carrying out or attempting to carry out an order or direction under this Part,

from the owner of the pollutant and the person having control of the pollutant.

76 Section 91(1) of the EPA defines “spill” as a discharge of a pollutant into the natural environment from or out of a structure, vehicle or other container that is abnormal in quality or quantity in light of all the circumstances of the discharge.

77The right to compensation under the EPA can only be claimed against the “owner of the pollutant” or against the “person having control of a pollutant” immediately before the first discharge of the pollutant, as defined in s. 91(1).

78I am satisfied on all the evidence before me, which includes the evidence of the plaintiff, that the Litwack Defendants neither owned nor controlled any alleged (chemical) pollutant immediately before its first discharge. Nor is there any evidence of a “spill” of a pollutant as defined by s. 91(1) of the EPA.

79I find therefore that there is no basis on which a court could find the Litwack Defendants liable pursuant to s. 99 of the EPA and that the plaintiff’s claim against them under the EPA fails and must be dismissed.

Conclusion

80For the reasons set out above, I grant the moving parties’ motion for summary judgment and dismiss the plaintiff’s claims as against the Litwack Defendants.

Costs

81If the parties are unable to agree on costs, they shall serve and file written costs submissions, not to exceed three (3) pages, plus a Bill of Costs, and copies of any Offers to Settle, within 30 days of the date to the release of these Reasons.

L. Sheard J.

Date: February 24, 2017

CITATION: Sorbam Investments Ltd. V. Litwack, 2017 ONSC 706

COURT FILE NO.: 12- 53595

DATE: 2017/02/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SORBAM INVESTMENTS LTD

Plaintiff

– 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

REASONS FOR JUDGMENT

Sheard J.

Released: February 24, 2017

Introduction

Preliminary Evidentiary Issues