Canada: Can A Landlord Be Sued For Historical Contamination Potentially Caused By Its Tenant?

Last Updated: April 27 2017
Article by Kirsten Mikadze

A recent decision on a summary judgement motion underscores the difficulty inherent in suing a landlord for contamination caused by its tenant.

In Sorban Investments Ltd v Litwack, 2017 ONSC 706, several Defendants successfully brought a motion for summary judgement dismissing the plaintiff's claims against them. The Plaintiff owns land abutting the property formerly owned by the Defendants, and was seeking damages in nuisance, strict liability (Rylands v Fletcher), and negligence as well as under section 99 of the Environmental Protection Act. The Plaintiff's property became contaminated by PCE and other chemicals used in dry-cleaning operations, the fact of which was discovered in 2010. In the early- to mid-1990s, the Defendants leased their property for use as a dry cleaning operation. The Defendants sold the property in 2007.

The Court did not address whether the Plaintiff could establish that the Defendants' land was a source of the contamination on the Plaintiff's land. Instead, it assumed for the purpose of the motion that it was.

Among other findings of fact, the Court found that the Defendants did not know that their dry-cleaning tenant was emitting contaminants; that prior to 2006 the Defendants had no reason to believe that their land was contaminated or was the source of the contamination on the Plaintiff's land; that from about 2006 to 2007 the Defendants had reason to, and did in fact, investigate whether their land was a potential source of contamination; and that the Defendants acted reasonably in their investigations of the contamination.

The Court confirmed that landlord liability in such instances flows from the foreseeability that the nuisance would occur as an inherent part of the activity to be undertaken on the property. As espoused by the Divisional Court in its decision in Durling v Sunrise Propane Energy Group Inc, 2013 ONSC 5830, a landlord may be held liable for the actions or nuisance of its tenants only "when the use from which the damage or nuisance necessarily arises was plainly contemplated by the lease."

In this case, there was no written lease in evidence, and there was no evidence one had ever been entered into. There was no evidence that the Defendants had authorized their tenant to contaminate the Defendant's land; were involved in the operation of the dry-cleaners; had any knowledge that any escape of contaminants had occurred; or were aware of the contamination until 2006. Moreover, the nuisance created by the tenant, assuming nuisance was ultimately established, was not foreseen or foreseeable as "inherently part of the activity to be undertaken"—namely, a commercial dry cleaning operation. Even after the Defendants had discovered contamination on their property, the Defendants were advised by their environmental consultant that no remediation was necessary and had no reason to believe the contamination was migrating to the neighbouring property.

In terms of negligence, the Court agreed once again with the Durling court that the mere fact of being a landlord does not establish sufficient proximity to ground a duty of care to an abutting landowner. Finding a duty of care in such circumstances would have the effect of burdening landlords with the duty to involve themselves in the activities undertaken by their tenants on their properties in order to protect themselves from liability.

Only rarely does a landlord potentially owe a duty of care to third parties for the negligence of a tenant. As has been held by the Superior Court in Canadian Tire Real Estate Ltd v Huron Concrete Supply Ltd, 2014 ONSC 288, the geographic proximity of a landowner's property to another property may be sufficient to ground a duty of care to the owner of that abutting property. However, for a landlord landowner of an abutting property to owe a duty of care related to the negligence of its tenant, it must be foreseeable that the tenant's activities are inherently unsafe, dangerous, or illegal such that the alleged harm to the abutting property was likely to result. The facts must be "out of the ordinary" for a landlord owner of an abutting property to be found owing a duty of care to a third party.

The Defendants were also assisted by the fact, agreed by the parties, that the contamination was historical and not ongoing. By the time that the Defendants had discovered their lands were contaminated, the Plaintiff's lands had already been contaminated (which it alleged occurred in 2006). There would also be no duty of care owed if the Plaintiffs could not establish that the lands were contaminated prior to the spring of 2007, when the Defendants sold the property.

The Court had little difficulty dismissing the Plaintiff's section 99 claim given both the lack of evidence of a "spill," as defined in the EPA, and the lack of evidence that the Defendants either owned or controlled any pollutant immediately prior to its first discharge.

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 Mondaq.com.

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

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.