In Simpson & Yan v. Chapman & Drummond (23
January 2009), the British Columbia Provincial Court dismissed a
statutory cost recovery action brought pursuant to the provincial
Environmental Management Act (the "EMA") and Contaminated
Sites Regulation (the "CSR"), on the ground that the
claimants had failed to prove the property in question was a
contaminated site within the meaning of the EMA and CSR.
The claimants purchased a residential property from the
defendants and alleged that the latter failed to disclose the
existence of an underground storage tank ("UST") on the
property at the time of sale, which the claimants alleged had
contaminated the property.
The court held that the claimants failed to establish the
property was a contaminated site within the meaning of the EMA and
CSR due to the methodology employed by their environmental
consultant, ALARA Environmental Health and Safety Ltd.
("ALARA"). Specifically, the court held that while ALARA
had analyzed soil samples according to an extractable petroleum
hydrocarbons ("EPH") standard, this could not be used to
determine whether a property was a contaminated site under the EMA
or CSR, both of which contain standards based on light extractable
petroleum hydrocarbons ("LEPH"), or heavy extractable
petroleum hydrocarbons ("HEPH"). The court noted none of
the subsequent testing results of soil samples taken from the
property indicated it was a contaminated site within the meaning of
the EMA and CSR.
The court also held the defendants would not have been liable
even if the claimants had established the property was a
contaminated site under the legislation. The defendants had carried
out a home inspection at the time of their purchase in 2003 that
did not reveal the existence of the UST, and the claimants relied
on that inspection report rather than conduct their own inspection
in 2006. That there was an "overheated" real estate
market which might have resulted in the defendants selecting
another buyer had the claimants insisted on their own inspection,
the court held, did not change this fact.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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