Canada: Millions For Offsite Gasoline Contamination

Last Updated: September 1 2014
Article by Meredith James and Dianne Saxe

The Ontario Superior Court has awarded millions to a neighbouring property owner for historic offsite gasoline contamination. The decision in Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Ltd. illustrates, and will perpetuate, the continuing confusion over liability for off site groundwater plumes. Justice Leitch never explains how her decision can be reconciled with the landmark Smith v. Inco decision on trespass and Rylands v. Fletcher, though the result can be upheld as a matter of negligence and nuisance.

Huron Concrete operated a private fuel outlet at its property from the 1950′s until 2012. Its dip testing of the underground storage tanks (USTs) used to store the fuel was not done in accordance with the applicable Gasoline Handling Act and Technical Standards and Safety Authority (TSSA) regulations, at least since 1989. When the USTs were removed in 2012, they found evidence of contamination.

Canadian Tire demonstrated that when it purchased the adjacent property in 1995, there were no significant environmental concerns. In 2007, however, they found 60 cm of free product gasoline flowing on top of the groundwater at a monitoring well. Further investigation revealed extensive contamination. All but one expert witness agreed that the direction of groundwater flow was from the Huron Concrete property to the Canadian Tire Property.

Based on these facts, Justice Leitch found the defendant, Huron Concrete, liable under strict liability (Rylands v. Fletcher), nuisance, negligence and trespass.

Strict Liability (Rylands v. Fletcher)

Justice Leitch followed a line of pre-Smith v. Inco cases in which the owners of leaky USTs were found liable under Rylands v. Fletcher, and where the escape of gasoline was found to be an escape under the rule. She did not consider whether Huron Concrete's operation was a non-natural use of land, nor refer to the test for this requirement established in Smith v. Inco.


In holding  Huron Concrete liable in trespass, Justice Leitch noted that "Canadian Tire "reached out" to Huron Concrete as soon as the free produce was discovered on the Canadian Tire property" but does not explain why this is relevant. This aspect of the decision also seems inconsistent with Smith v. Inco.

Trespass requires a direct and physical intrusion onto the plaintiff's property, caused by a voluntary act of the defendant. The unintended underground migration of contaminants into groundwater is neither "direct" nor "intentional". In Smith v. Inco, the trial court dismissed the trespass claim against Inco because the refinery operations that led to trace nickel contamination in the neighbouring plaintiff's soil was more akin to stones falling from a faulty chimney, than to Inco voluntarily causing nickel to be deposited on its neighbours' property.


Canadian Tire claimed that because the contamination exceeded the applicable provincial standards the contamination 1) presented a potential risk to human health and the environment requiring further investigation and mitigation and 2) restricted its ability to redevelop the land and therefore detrimentally impacted the bundle of property rights associated with the use of the land. 

It seems that Justice Leitch based her decision on the first basis, for which there was significant evidence. Huron Concrete admitted that migration of free product gasoline, gasoline vapours and gasoline impacted groundwater beneath the building on the Canadian Tire Property could pose a significant health and safety risk to Canadian Tire employees and customers. Canadian Tire's expert also found that "in its current state, the Canadian Tire Property is not fit for use in the area of impact and there is a concern for public health because of the vapours and the potential for explosion."

It is unclear whether the second basis could have succeeded. In Almel Inc. v. Sunocco, the Ontario Court of Justice found that where the contamination is not sufficient to justify the plaintiff's discontinuance of their current use of the property, it would not create an actionable nuisance. Nothing in Smith v Inco suggests that interference with redevelopment would be sufficient to ground a claim in nuisance. 


Justice Leitch found Huron Concrete negligent because it failed to comply with applicable regulatory standards for managing underground tanks of petroleum products. She found that evidence regarding the source of the contamination on the Huron Concrete property and the pathway it followed to reach the Canadian Tire property satisfied the causation requirements. This aspect of the decision seems well supported by applicable law.


Canadian Tire was awarded $3.6 M in damages to remediate its property to the state it was in before the release of contaminants. It was also awarded over $1.1 M in out of pocket expenses as well as costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Meredith James
Dianne Saxe
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions