Owners of a contaminated site are often too optimistic about
their "rights" to compensation. Sometimes, chasing
compensation for contamination just throws good money after
For example, Terrim Properties Ltd. wanted to build a gaming
centre in Castlegar, B.C. Their loan fell through when the
groundwater proved to be contaminated, likely due to historic
gasoline migration from a neighbouring property now owned by
Sorprop. Terrim sued Sorprop and another neighbour, in
nuisance and under the BC environmental statute. The lawsuit was a
complete failure: Terrim Properties Ltd. v. Sorprop Holdings
Terrim's statutory claim had no basis. Under the BC Environmental Management Act (EMA), an action
for remediation may only be heard by a court after a site is
officially found to be contaminated, by a government
"director". In this case, no director had ruled
that any of the properties were officially contaminated sites, so
Terrim's claim for remediation was barred. In any event,
Terrim had not pleaded a statutory cause of action.
Terrim's nuisance claim had to be abandoned, because Sorprop
had not itself brought any gasoline onto its property.
" During the hearing,
counsel for Terrim conceded that Terrim was not pursuing its claim
in nuisance. That makes sense, because the evidence did not
disclose that any of the defendants had brought onto their
properties (or allowed to accumulate on their properties) any
substance that, having escaped into the affected property, thus
contaminated it. In this respect see Rylands v. Fletcher (1868),
L.R. 3 H.L. 330 (H.L.). The Act makes provision for situations such
as this (i.e. for the liability of a subsequent owner of land from
which has escaped a contaminant) but the aggrieved property owner
must follow the procedure prescribed by the Act. As noted above, I
do not have the jurisdiction to deal with the situation
Terrim then tried to argue that Sorprop had been negligent in
failing to discover and deal with the contamination, since old
reports about the contamination of the Sorprop property were on
record with the Ministry of the Environment. Unfortunately, Terrim
had not pleaded its case in negligence. In
addition, Terrim had sold the property to another
Terrim's claim was completely dismissed, and Terrim
must now pay legal costs to the defendants.
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