ALPHA ELECTRIC (1987) LTD, – v. –, 2023 NBKB 43

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Alpha Electric

(1987) Ltd. v. Cleve Eugene Roberts 2023 NBKB 043 MC/269/2018 BETWEEN: ALPHA ELECTRIC

(1987) LTD, – and – CLEVE EUGENE ROBERTS DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATES OF HEARING: January 20 & 21, 2020 and September 26 & 27, 2022 DATE OF DECISION: March 20, 2023 APPEARANCES: Carole Chan & Patrick Hurley, K.C., for the Plaintiff Jeffrey Ellsworth, for the Defendant

DYSART, J. INTRODUCTION [ 1 ] This is an action for the alleged migration of petroleum hydrocarbon contamination from one property to another. [ 2 ] The Plaintiff in this matter, Alpha Electric

(1987) Ltd., alleges that petroleum hydrocarbon (PHC) contamination was discovered on its property in Moncton in both 2011 and 2016, requiring expensive remediation including the removal of impacted soil and its replacement with clean fill, as well as the cost of testing and monitoring for contamination. Alpha alleges that the PHC contamination originated on the neighbouring property owned by Cleve Roberts, which houses an automobile service station. [ 3 ] The total amount claimed by the Plaintiff is $74,765.40. Alpha also claims general damages and pre-judgment interest.

The action was commenced pursuant to Rule 79 under the Rules of Court, the Simplified Procedure. Most of the evidence presented, which was extensive, was led by affidavit; however, most of the affiants testified at trial. [ 4 ] In his Statement of Defence, Mr. Roberts denies that the PHCs discovered on the Alpha Property originated on his property. He maintains that the contamination is the result of the Plaintiff’s own activities undertaken on its premises, or by previous owners of the Alpha Property.

In the alternative, the Defendant says that the contamination originated on some other property from the surrounding area, and states that both the Alpha Property and the Roberts Property form part of lands that were formerly owned or used by the Canadian military and the Canadian National Railway, and are known “brownfields.” The Defendant says there were underground storage tanks on the Alpha Property in the past, as well as on numerous other surrounding properties which could just as easily explain the PHC contamination identified on the Alpha Property.

Finally, the Defendant maintains that any claims arising from the 2011 contamination are statute-barred in accordance with the Limitation of Actions Act , S.N.B. 2009, c. L-8.5 . [ 5 ] It is noteworthy that following two days of testimony in 2020, the parties learned of an environment assessment that was conducted of Mr. Roberts’ property back in 1994, before he purchased the property. The case was adjourned and, following two additional motions, that report was disclosed and ultimately was admitted as evidence at trial.

The case resumed more than two years later in 2022 for an additional two days. [ 6 ] The affidavit evidence before the Court is as follows: Plaintiff’s Evidence : • Affidavit of Brad Hamilton (Director of Alpha) sworn January 31, 2019; • Supplementary Affidavit of Brad Hamilton sworn April 1, 2019; • Second Supplementary Affidavit of Brad Hamilton sworn June 15, 2020; • Affidavit of Larry Dionne (Environmental Engineer – Expert) sworn January 31, 2019; • Supplementary Affidavit of Larry Dionne sworn April 1, 2019; and • Second Supplementary Affidavit of Larry Dionne sworn June 13, 2020.

Defendant’s Evidence : • Affidavit of Cleve Eugene Roberts sworn January 25, 2019; • Affidavit of Jeffrey Burt Hurd (owner/operator of Auto Surgeon) sworn January 30, 2019; • Supplementary Affidavit of Jeffrey Burt Hurd sworn March 29, 2019; • Affidavit of Claude Aquila Saulnier (Former owner/operator of Action Radiator & Glass Master Inc.) sworn January 31, 2019; • Supplementary Affidavit of Claude Aquila Saulnier sworn March 31, 2019;

• Affidavit of Neil John Patrick Gillis (Environmental Engineer – Expert) sworn January 31, 2019; • Supplemental Affidavit of Neil John Patrick Gillis sworn March 29, 2019; and • Second Supplemental Affidavit of Neil John Patrick Gillis sworn February 20, 2022. [ 7 ] As mentioned, each of the affiants (with the exception of Mr. Saulnier) testified at trial.

For the purposes of these reasons, I will not always distinguish between evidence provided by affidavit and evidence provided by viva voce testimony at trial. [ 8 ] The parties agreed that the experts who gave evidence were both qualified to give opinion evidence as environmental engineers – Larry Dionne, P. Eng. for the Plaintiff and Neil Gillis, P. Eng. for the Defendant. [ 9 ] The evidence presented by the parties includes several environmental site assessments (ESA), both Phase 1 and Phase 2.

They are: • 1994 Phase 1 ESA of the Alpha Property; • 1994 Phase 1 ESA of the Roberts Property; • 2001 Phase 1 ESA update of the Alpha Property; • 2011 Phase 1 ESA of the Alpha; • 2011 Phase 2 Closure Report of the Alpha Property; • 2017 Report by Stantec regarding the contamination identified on Alpha Property in 2016; and • 2018 Phase 1 ESA of the Roberts Property. [ 10 ] It is worth noting early in these reasons that the contamination which was identified by Alpha in both 2011 and 2016 was determined to be mostly lubricating oil, which is distinguished from other PHCs including fuel or heating oil and gasoline.

As will be explained, one of the reasons Alpha is pursing Mr. Roberts is that the Roberts Property houses an auto repair business, Auto Surgeon, and the Plaintiff alleges that that business is the likely culprit for that lube oil contamination. BACKGROUND [ 11 ] Alpha owns the property at 25-33 Halifax Street in Moncton, bearing PID 7027848. Alpha purchased that property in 1994. At all times, Alpha has operated a household appliance retail sales and service business at that location. [ 12 ] Mr. Roberts owns the parcel located at civic address 180 Collishaw Street in Moncton, bearing PID 70278452.

He purchased that parcel of land in 1995. That parcel, which adjoins the Alpha Property at Alpha’s western boundary, houses Auto Surgeon automobile repair garage, which is owned and operated by Mr. Hurd. That business has operated continuously since approximately 1994, i.e. the entire time Mr. Roberts has owned the Roberts Property. [ 13 ] The Roberts Property also houses a radiator repair and automobile glass repair/replacement business, Action Radiator & Glass Master Inc., which was owned and operated by Mr. Roberts from 1995 until 2003. That business was sold to Mr.

Saulnier and his partner in 2003 and it is still in operation today, though under new ownership. USE OF THE ALPHA PROPERTY [ 14 ] There is evidence contained in the 1994 Alpha Phase 1 ESA that, as of 1994, the Alpha Property contained lubricating oil on its premises including a 5-gallon container of lubricating oil in Alpha’s service shop.

The evidence from the ESA indicates that Alpha employees were not trained in the storage and handling of chemicals on site. [ 15 ] There is also evidence that Alpha sometimes stored a number of appliances, including fridges, outside its building on the property (sometimes in a trailer). The evidence satisfies this Court that such storage does not explain the contamination in question. The presence of small motors and compressors on refrigerators is unlikely to have caused the scope of contamination seen in this case.

USE OF THE ROBERTS PROPERTY [ 16 ] As noted, the Roberts Property housed two businesses at all material times - Action Radiator & Glass Master Inc. and Mr. Hurd’s Auto Surgeon.

The Plaintiff’s expert (as detailed below in these reasons) points to Auto Surgeon as the likely source for the contamination in this case, and there is no evidence to implicate Action Radiator & Glass Master Inc. – which may have stored and handled other contaminants as part of its operations but did not generally use lube oil. [ 17 ] As for the operations of Auto Surgeon, that evidence comes primarily from Jeff Hurd, the business’ owner/operator. [ 18 ] Mr. Roberts acknowledges that Auto Surgeon uses, captures and stores lubricating oils as part of its business.

But Jeff Hurd maintains that Auto Surgeon has a system in place with respect to the collection and containment of oil in accordance with all provincial guidelines. Specifically, Mr. Hurd states that motor oil is collected in sealed steel “caddies” which are then emptied into a 65-gallon drum, and then into an 800-litre approved above ground storage tank (AST) located inside the building. A pressurized system is used to do that, and the contents of the storage tank is then collected and disposed of by a licensed third party waste oil recycler, T&J Oil Ltd., whom Mr.

Hurd has been using for at least the past 15 years. [ 19 ] With respect to oil filters and other potential contaminants, Mr. Hurd's evidence is that these are collected and stored in appropriate containers until they, too, are collected by a licensed third party. [ 20 ] The evidence is that there are pits within the Auto Surgeon portion of the building, which were formerly used by the mechanics to work underneath the vehicles. Those pits have not been in use for many years, as Mr. Hurd installed hydraulic lifts. The pits are currently covered by steel plating. Mr.

Hurd acknowledges that vehicle sometimes have snow or water on them, and there is a degree of runoff which makes its way into the pits, which is the lowest point inside the garage. Any water which does not evaporate remains in the pits, and according to Mr. Hurd those pits have not been pumped out for many years. He testified that they have been pumped out in the past by a certified provider. [ 21 ] Mr. Hurd was clear in his testimony that the pits do not drain anywhere. They are sealed concrete recesses.

Also, he confirms that there are no floor drains in the shop. [ 22 ] The evidence is that, initially in 1995 when Auto Surgeon began operations, there was a sump pump at the bottom of those pits. Naturally, liquids flowed to the lowest point, and were then pumped out by the sump. According to Mr. Hurd, he believes the sump pump discharged into a drain on the premises, which he understood went into the municipal storm sewer. But he testified the sump pump was removed in 1995. [ 23 ] Mr.

Hurd testified that they never hose off the shop floor, and no work on vehicles is done outside of the shop. [ 24 ] With respect to any spills that might occur inside the shop, Mr. Hurd testified that, firstly, there is a 2 ½ inch concrete berm or lip at the doors to the garage, including the bay doors, which would prevent the escape of any liquids. He went on to explain that the shop has a specific absorbent called “Oil Dry” to collect spills, and they sometimes use designated absorbent rags to collect any spilled PHCs in the shop. Those are then stored in a 60-litre drum which is then disposed of. [ 25 ] Mr.

Hurd swore in his affidavit evidence that there has never been a release or escape of oil from his garage. [ 26 ] Attached to his affidavit are a number of invoices and receipts from various third party providers for the collection and removal of waste oil, oil filters, etc. Those date back to approximately 2017. Of course, the Defendant was not notified of any contamination concerns until sometime in 2017.

HISTORICAL ESAs [ 27 ] I will now summarize the evidence set out in the various environmental assessments conducted on both properties over the years, from 1994 and 2001 (i.e. prior to the discovery of contamination on the Alpha Property in 2011) to the most recent assessments in 2011,

2017 and 2018. 1994 Phase 1 ESA of the Alpha Property [ 28 ] The Phase 1 ESA was conducted by Jacques Whitford Environmental Limited (JWEL) at the request of the then-owner of Alpha.

The Alpha Property was being leased from Canadian National Railways, but Alpha was considering the purchase of the property. [ 29 ] That Phase 1 ESA, which the Court understands was performed to identify any known contamination on the property and to assess the risk of unknown contamination based on potential sources, both on-site and from neighbouring properties. [ 30 ] Specifically, JWEL identified the following concerns on the Alpha Property: • The Federal Department of the Environment (FDOT) had indicated to JWEL that the parcel of land, as former CN Shops lands, should be analyzed for PHC contamination; • Past uses of the Alpha Property included at least two equipment rentals, sales and service businesses, which JWEL states may have produced PHC waste products; • The property was used by the Canadian Armed Forces in the 1940s as an “Embarkment Depot” (or barracks); • JWEL identified an abandoned 300-gallon above-ground storage tank (AST) as well as an abandoned 1,000-gallon underground storage tank (UST) on the property; • A 30-square foot area of surficial staining was identified in the area of the abandoned AST and there was a “hydrocarbon odour” noted; • There were several small containers of “oil and lubricants” and a 5-gallon container of lubricating oil in the service shop; • Alpha employees had not been trained in the proper storage and handling of contaminants; and • A floor drain in the western end of the property, i.e. the end closest to the Roberts Property (which is where the contamination in both 2011 and 2016 was located) contained “some hydrocarbon impacted water and grit.” [ 31 ] In his testimony at trial, Mr.

Hamilton testified that the UST on the western end of the Alpha Property was removed at some point, but he did not know whether any impacted soil was removed. 1994 Phase 1 ESA of the Roberts Property [ 32 ] This Phase 1 ESA was also completed by JWEL. It was done for the then-owner, Sumner Capital Ltd.

The following findings are noted: • The property had been used as an auto service station (Captain’s Lube Ltd., Northrup’s Transmission, Speedy Lube and Hurd Auto Surgeon) since 1979; • Several ASTs used for the storage of waste oil (i.e. lube oil) were located inside the building; • The property had two USTs – one for waste oil and one for fuel/heating oil; • There were fill and vent pipes located on the western side of the building related to the waste oil UST, and there was a 100 sq. ft. hydrocarbon stain adjacent to that fill pipe; • Oil spills and stains were identified on the shop floor; and • There was a sump pump in the pits of the garage, with the sump emptying into the municipal sewer system. [ 33 ] JWEL recommended the use of an oil-water separator in the sump (which was required by regulation) and the removal of the impacted soil in the area of the fill pipe on the western side of the building. [ 34 ] It should be noted that Mr.

Roberts produced records from the Provincial Department of the Environment (PDOE) which confirms that both the waste oil UST and the impacted soil was removed and remediated in 1995 to the satisfaction of the PDOE. According to those records, 15 tonnes of contaminated soil was removed and replaced with fill.

2001 Phase 1 ESA Update prepared by JWEL for the Alpha Property [ 35 ] According to Mr. Hamilton, this non-invasive assessment was done for the purposes of financing, or “commercial due diligence purposes.” Alpha was about to construct an extension to its building.

The report identifies a number of potential sources of contamination including: • A gasoline retail outlet to the north, across Collishaw Street, which was upgradient from the Alpha Property and approximately 50 metres away, which could be a source of PHC contamination; • A reference to remediation work undertaken on the Roberts Property in 1994 – presumably the removal of the UST and the removal of impacted soil in 1995 – but there was no information relating to any actual contamination on the Roberts Property; [ 36 ] JWEL recommended that Alpha conduct a Phase 2 ESA, which involves soil and water testing, due to the fact that USTs had been removed from the Alpha Property and no such testing was done (to JWEL’s knowledge), and due to the apparent remediation work that had been undertaken in 1995 on the Roberts Property. [ 37 ] In his Affidavit evidence, Mr.

Hamilton acknowledges that Alpha did not conduct the recommended Phase 2 ESA. 2011 Phase 1 ESA prepared by Stantec for the Alpha Property [Note: It is uncontested that Stantec is the successor firm to JWEL] [ 38 ] By the time of the 2011 Phase 1 ESA, Alpha had added the extension to its building in 2001. There was little in the way of new information or new risks of contamination beyond what was included in the earlier ESA reports.

It lists potential sources of PHC contamination as being the presence of a former UST on the Alpha site and the potential existing USTs on the adjoining Roberts Property. 2011 Phase 2 Closure Report prepared by Stantec for the Alpha Property [ 39 ] According to the report, Stantec undertook intrusive investigations of the Alpha Property, including soil (bore holes) and water (monitoring wells) testing. The locations and depths of each of those tests are shown on Drawing No. 3, which accompanied the report.

That testing was done in response to signs of impacted soil in the northwest corner of the Alpha Property. [ 40 ] The Testing revealed elevated concentrations of BTEX and modified TPH – that is, PHCs, in the soil samples. These elevated areas were in the northwest corner of the Alpha Property, near the boundary with the Roberts Property. Three test locations showed readings in excess of the 10,000 mg/kg threshold allowed under the guidelines – a monitoring well (11MW-01 at 11,000 mg/kg); and two bore holes (11BH-03 at 14,000 mg/kg; and 11BH-04 at 11,000 mg/kg).

Those were at depths of 0.0 to 0.6 metres for the first two, and at 0.61 to 1.2 metres for the third. In all three of those test results, there were significantly lower concentrations at lower depths; that is, the only concentrations that exceeded the guidelines were at the shallower depths, closer to the surface. [ 41 ] There were no exceedances for any of the groundwater tests. [ 42 ] As a result, Stantec oversaw a remedial excavation program to remove some 172.3 tonnes of impacted soil. The soil was removed for disposal by a licenced third party, Elmtree Environmental Inc.

Samples were also sent to a laboratory for testing. The PHC identified in the soil was found to be mostly lubricating oil. [ 43 ] During the excavation, Stantec also discovered a drain tile. “A drain tile line was uncovered during remedial activities along the northern property boundary. It was determined that this drain tile was connected to a catch basin located on the adjoining property to the west (PID No. 70278452). Free-phase petroleum product was observed around the drain tile and concentrated inside the off-site catch basin.

Based on our understanding of the site history and current conditions, it is unlikely that the free-phase product is associated with the identified petroleum hydrocarbon impacts at the subject property [that is, on the Alpha Property]. Thus, the impacted drain tile line was removed, and not replaced at the request of [Alpha]. the

line was plugged with low permeability soil to mitigate further migration of impacts (if any) onto the subject property. The on-site catch basin located at the southwest corner of the [Alpha Property] was visually assessed and no free-phase petroleum product was observed during the remedial activities. No other preferential pathways were identified during the remedial activities.” [ 44 ] Once the impacted soil was removed, it was replaced with clean fill. Stantec conducted additional soil samples a few weeks later, in July 2011. Those tests were all within the acceptable guidelines. [ 45 ] Under the Conclusions

section of the Phase 2 report, Stantec wrote: “Some impacts may have migrated onto the site [i.e. the Alpha Property] via the drain tile connected to a catch basin located on [the Roberts Property].

The portion of the drain tile on the [Alpha Property] that was unearthed as part of the remedial excavation was removed and plugged with low-permeability soil to mitigate further migration of impacts (if any) onto the [Alpha Property.]” [ 46 ] Photographs taken at the time of the excavation of that drain tile, which were included with the Phase 2 report, show that the free-phase contamination was identified at a relatively shallow depth below the surface. On cross-examination, Brad Hamilton admitted that it was likely 2 to 2½ feet below the surface. [ 47 ] Mr.

Hamilton also admitted that Stantec had notified Alpha of the drain tile along the northern property boundary, and that it contained free-phase PHCs. Alpha was also advised that the drain tile connected the Alpha building and the catch basin on the Roberts Property, and that the contamination was possibly originating from the Roberts Property. He admitted that Alpha took no steps to investigate that possibility until contamination was identified in 2016. [ 48 ] As well, Mr.

Hamilton confirmed that the cost of the Phase 1 ESA would have been required, irrespective of the discovery of impacted soil on the Alpha Property in 2011. 2016 Contamination [ 49 ] Mr. Hamilton testified that in 2016, Alpha undertook work for the construction of a further addition to its building, and engaged a contractor to commence excavation work on the west side of the Alpha Property, just south of the 2011 remediation area near the boundary with the Roberts Property. In the course of that work, the contractor identified contaminated soil.

In addition, the contractor identified what appeared to be a second drain tile, this time running between the Roberts Property and the Alpha Property in a southeast direction across the Alpha Property in the direction of the catch basin located on the Alpha Property. [ 50 ] Because there were two drain tiles identified, the 2011 drain tile came to be referred to by the parties as the northern drain tile; while the drain tile identified in 2016 became known as the southern drain tile. [ 51 ] Mr.

Hamilton states in his evidence that he personally observed a “black, oily substance oozing through the soil on the Roberts Property around the plugged northern drain tile as well as around the second drain tile that flowed from the Roberts Catch Basin to the Alpha Property.” It should be noted, however, that no party could state with any degree of certainty as to the direction of flow as between these apparently connected catch basins. [ 52 ] Upon discovery of the contamination, Alpha once again engaged Stantec. [ 53 ] Stantec again oversaw the testing and remediation of the Alpha site, and summarized its findings in a report to Alpha dated March 27, 2017.

The report reads, in part, as follows: “The contamination was observed coming from the neighboring property to the west, in the bedding material underneath two drain lines. The drain lines were connected to a catch basin located on the western adjoining property.

[…] Soil results indicate that two areas have soil which exceed the commercial guidelines; one near the property boundary (EX-01W) and the other under the footing of the building (EX-19W). […] […] Given that the contamination was observed in the bedding material underneath two drain lines, which were connected to a catch basin located on the western adjoining property, the origin of the contamination appears to be from the adjoining property to the west [i.e. the Roberts Property].

Furthermore, the adjoining property to the west operates an automotive maintenance and repair centre (Auto Surgeon), and the impacts found on the subject property are consistent with the types of products used in the operation of a vehicle service centre. Lastly, there are currently no on- site sources of PHCs. […] Based on the above, the subject property is likely an impacted third party property.

Stantec recommends that the [PDOE] be notified of the impact and remedial efforts at [the Alpha Property]. [ 54 ] The report indicates that some 648.81 tonnes of impacted soil was removed from the western end of the Alpha Property and was transported to Elmtree Environmental Ltd. for disposal. [ 55 ] At trial, Mr.

Hamilton testified that he was not aware of the southern drain tile, apparently connecting the catch basin on the Roberts Property with the catch basin on the Alpha Property, until the excavation of 2016. 2018 Phase 1 ESA of the Roberts Property prepared by GEMTEC Consulting Engineers and Scientists Ltd. [ 56 ] Mr. Roberts was notified in 2017 of the contamination that was identified and remediated on the Alpha Property. In response, he contacted GEMTEC and sought their advice. It was determined that a Phase 1 ESA would be conducted.

As with the other Phase 1 ESAs, the focus was to identify possible sources of contamination on the Roberts Property and on neighbouring properties, and not to provide any opinion related to the source of the Alpha contamination identified in 2011 and 2016. [ 57 ] The 2018 Phase 1 ESA of the Roberts Property made the finding observations: • The Roberts Property housed two commercial businesses – Auto Surgeon and Action Radiator & Glass Master Inc.; • The building previously was heated with a waste-oil fired furnace with an AST and a UST (since replaced with a natural gas system); • History of UST on west side of property, since removed, which is considered a “moderate” risk of contamination; • There is an 800-litre above-ground waste oil storage tank.

That waste oil is collected by a certified recycler, “Terra Pure” in accordance with environmental guidelines; • History of an AST in pits area which was filled in place with sand and concrete – considered a “moderate” risk for contamination; • Mechanic pits in the building, covered by steel plates; no longer in use (due to use of hydraulic lifts for approximately the past 20 years); notes approximately 2 feet of water in pits, no apparent drainage; advised by tenant that the pits have not been pumped in at least 5 years; this is considered a “moderate” risk of contamination; and • Notes various floor drains within the building but unclear where they discharge. [ 58 ] The report summarizes the findings as follows: “GEMTEC has identified a moderate to high potential for environmental contamination on the site related to the historical and current use of the site as an auto maintenance garage, and the storage and handling of fuels on the site including a former UST on the western

portion of the site. A remedial excavation conducted in 2016 on the adjoining property to the east [i.e. the Alpha Property] identified soil contamination along the eastern site boundary, and based on drawings provided by the client, soil samples were also collected from the site [i.e. the Roberts Property]. Petroleum hydrocarbon impacted soil was found to be present on the site. The site, as well as the adjoining property to the east, were historically owned by Canadian National Railway (CN).

There is a potential for contamination on the site based on the title information regarding the site and the adjoining property to the east. There are also historical records of contamination and petroleum storage on properties neighboring the site beyond the roadways.” [ 59 ] The report notes that the Roberts Property is generally flat, but slopes slightly towards the east, to a catch basin on the eastern portion of the site, i.e. the catch basin apparently connected to the northern and southern drain tiles.

The report indicates that surficial water is expected to flow over lands towards that catch basin. [ 60 ] Again, GEMTEC recommended a Phase 2 ESA. The evidence is that no Phase 2 ESA was conducted by Mr. Roberts. He testified at trial that he is not required to, and he would only request a Phase 2 were it required for financing or to sell the property. [ 61 ] It would seem that neither Alpha nor Mr. Roberts followed their consultants’ advice to carry out a Phase 2 ESA. [ 62 ] Those are all the environmental assessment reports before the Court.

EVIDENCE OF WITNESSES [Note: the Court has not summarized all of the viva voce, as some of it has been addressed earlier in these reasons – for example, the evidence of Cleve Roberts and Jeff Hurd] Brad Hamilton [ 63 ] In addition to the evidence already referred to in these reasons, Mr.

Hamilton acknowledged on cross-examination that when Alpha purchased the Alpha Property in 1994, it was known that the property had been previously owned by CN and that it had been previously used by the military as a barracks. [ 64 ] In its 1994 Phase 1 ESA of the Alpha Property, JWEL recommended the removal of impacted soil on the Western side of the property, in the vicinity of an UST. Mr. Hamilton did not know whether that remediation of impacted soil had ever been completed, though he was aware that the UST had been removed. [ 65 ] Mr.

Hamilton agreed that the cost of completing the 2011 Phase 1 ESA would have been incurred even if there had been no contamination identified. That ESA was required for financing purposes, he testified. [ 66 ] Again, Mr. Hamilton confirmed that Alpha was advised by Stantec in 2011 that the contamination identified on the Alpha Property may have migrated from the Roberts Property. He acknowledged that Alpha did nothing to further investigate that issue at the time. Larry Dionne, P. Eng. [ 67 ] In essence, it is Mr.

Dionne’s opinion that the free-phase PHC contamination found on the Alpha Property in both 2011 and 2016 likely originated on the Roberts Property.

That is, he believes it migrated from the Roberts Property onto the Alpha Property. [ 68 ] He explained that the presence of free-phase PHC in the bedding material of the drain tiles, which he observed, suggests that that the drain tile connecting the catch basin on the Roberts Property with the catch basin on the Alpha Property is a preferential pathway, facilitating the movement of free-phase PHC from one property to the other. [ 69 ] He testified that he did not observe any free-phase PHCs farther to the east on the Alpha Property, i.e. farther from the property boundary and the drain tile.

He contends that this supports the view that the PHCs originated on the Roberts Property.

[ 70 ] As well, Mr. Dionne explained that the PHCs that were identified and sent for testing were predominantly lubricating oil, which is distinct from heating/fuel oil or gasoline. He opined that there were no sources for that type of contamination on the Alpha Property, meaning it was likely a case of third party contamination originating on another property. [ 71 ] Mr.

Dionne testified that, while the entire area of these properties is considered a “brownfield” with a known risk of contamination due to past industrial and commercial use, none of those past uses would necessarily mean there is PHC contamination in the form of lubricating oil on the Alpha Property. [ 72 ] With respect to past usage by Alpha, he notes that the UST that was on the property contained fuel oil and not lubricating or waste oil. He also testified that the depth of the UST was such that it would be unlikely to result in free-phase product in the shallower drain tile bedding.

As well, he testified that if the Alpha Property was the source of the free-phase PHC contamination he observed, it would not be restricted to the preferential pathway, i.e. the drain tile and bedding material. He would expect to see it in other areas, which he did not. [ 73 ] He agreed that the UST on the Roberts Property, which was decommissioned in place underneath the building, is not a likely source of the contamination as it housed fuel oil.

He also acknowledged that the UST which stored waste oil is not likely a source of contamination, as the contaminated soil identified in 1994 was fully excavated and remediated in 1995. [ 74 ] In the end, Mr. Dionne’s opinion was based on two facts: 1) there was free-phase PHC in the drain tile and bedding material with was predominantly lubricating oil; and 2) the most likely source of lubricating oil was the Auto Surgeon operation next door on the Roberts Property. [ 75 ] As for sources of contamination from Auto Surgeon, Mr.

Dionne offered a number of potential ways that lubricating oil could have escaped from the Roberts Property. In his affidavit of April 1, 2019, Mr. Dionne states: “It is my experience and opinion that petroleum hydrocarbons, especially lube oil, could have been released from the automotive repair operations on the Roberts Property to the Roberts catch basin through one or a combination of the following: (

a) hosing off with water of spills onto the driveway out of the eastern facing bay doors of the building; (

b) hosing off with water of the driveway/parking lot on the Roberts Property; (

c) incorrect use or no use of spill kits; (

d) failure to use drip trays to catch liquids and to contain and clean up spills as soon as they occur; (

e) disposal of waste or wastewater in stormwater drains; (

f) disposal (purposive or inadvertent) of waste or waste water in floor drains; (

g) disposal (purposive or inadvertent) of waste or waste water in the mechanics pit; (

h) overflow events from floor drains and pits; and (

i) insufficient subsurface examination and maintenance of the network of pits and drains on site.”

[emphasis added] [ 76 ] He goes on to say that, even if Auto Surgeon’s current practices are compliant with modern guidelines, the contamination identified in 2011 and 2016 could be the result of practices that were carried out decades before. [ 77 ] During his testimony, Mr. Dionne expanded on some of those theories. For example, the evidence that there was once a sump pump in the pits of the garage which discharged into a drain; and the evidence from the 1994 Roberts Phase 1 ESA that there was a PHC odour coming from the pits. However, on cross-examination, Mr.

Dionne acknowledged that he did not know where those drains discharged. He speculated that they might possibly transect with the Roberts catch basin and, then, the drain tiles. But he could not say whether it did or did not connect to the drain tiles. And Mr. Dionne agreed that he does not know where the network of catch basins and drain tiles originates or ends. [ 78 ] He also suggested that the pits would have to drain somewhere, since the sump was removed. But he acknowledged that he has never visited the Roberts Property and cannot confirm whether there are any drains in those pits.

He agreed that if the pits are sealed and do not drain anywhere, then they would not be a likely source of contamination into the catch basin network. [ 79 ] Likewise, he testified that there is likely to be some degree of spillage of oil during the garage’s operations, and that some of that spillage might make its way into a drain or run off into the parking area of the Roberts Property, and then into the catch basin network. He testified that it is impossible to conclude there was no spillage – which is vastly different from testifying there was spillage. [ 80 ] On cross-examination, Mr.

Dionne acknowledged that there are a number of other automotive businesses in the vicinity of the Alpha Property, including a gas station about 50 metres away, a commercial towing business and other automotive service stations. He testified, though, that those businesses are at a greater distance than Auto Surgeon, and that the are separated by roadways, curbs and other properties, such that the likelihood that the source of the contamination is from those properties and not the Roberts Property is low.

He also testified that if a gas station was the source, he would expect to see contamination in the groundwater, and there was none in this case. [ 81 ] He acknowledged that the sample results yielded higher concentrations of PHCs at shallower depths, and he agreed that the pathway of the contamination was likely a combination of surficial contamination and the preferential pathways (the drain tile and bedding material). [ 82 ] Mr.

Dionne agreed that the free-phase PHC contamination he observed in 2016 was likely present in 2011 as well, and he agreed that it is possible that the contamination had been present on the Alpha Property for many years. He also acknowledged that along the southern drain tile (identified in 2016), the PHCs were more of a mixture of lubricating oil and gasoline, and sometimes fuel oil as well. Neil Gillis, P. Eng. [ 83 ] Like Mr. Dionne, Mr. Gillis is an expert in environmental engineering.

He was involved in the 2018 Phase 1 ESA of the Roberts Property, which identified moderate to high risk of contamination on that Property, in part to due to the usage of the property as an automotive garage and also due to the confirmed presence of free-phase PHC contamination at the boundary with the Alpha Property. [ 84 ] In addition to conducting that Phase 1 ESA, Mr. Gillis also commented on Mr. Dionne’s theory of liability in this case. Ultimately, Mr.

Gillis is of the opinion that Stantec’s investigations are insufficient to attribute a likely source for the contamination identified on the boundary between the Alpha Property and Roberts Property. [ 85 ] Firstly, he conducted the 2018 Phase 1 ESA on Roberts Property, but he states that a Phase 1 ESA does nothing more than assess potential sources of contamination – both on-site and from off-site – and assign a likelihood of that risk. He stated that a Phase 1 ESA is not intended to identify the source of any contamination identified on a property.

That, he says, would require a much more extensive investigation, something he says was not done in this case, either by him of by Stantec.

[ 86 ] He states that both the Alpha Property and the Roberts Property are part of a “brownfield” with what he calls a “checkered history” of potential PHC contamination. [ 87 ] While not proposing to identify a likely source of the contamination identified on the Alpha Property, Mr.

Gillis indicated that, in addition to the Roberts Property (which he acknowledged was a possible source) there were a number of other potential point sources, including: • historical contamination from when the property was owned by the CN or was used by the military; • a gas station approximately 50 metres away, which had numerous USTs; • other neighbouring and nearby properties with USTs, some of which have been removed and some of which have not; • a commercial towing and storage business located in the same area; and • other automobile service stations/garages in that area. [ 88 ] Mr.

Gillis also stated that the Alpha Property cannot be eliminated as the potential source of the contamination. Recall that in the 1994 Phase 1 ESA, it was noted that there were several smaller and one larger 5-gallon container of lubricating oil in Alpha’s shop. It also noted Alpha’s employees had not received training on the proper handling of chemicals. Also, there were two USTs on the Alpha Property containing fuel oil, which might explain some of the PHC contamination on the Alpha Property which was predominantly, but not exclusively, lubricating oil. [ 89 ] Mr.

Gillis was asked about the network of catch basin and drain tiles which crosses the property boundary between the Alpha Property and the Roberts Property. He acknowledged that there seems to be a connection, at least between the two catch basins; however, he stated that it is impossible to say where that network begins and where it ultimately discharges. More importantly, he stated, there is no evidence that the network is connected to the building on the Roberts Property or to the drains from the building where Auto Surgeon carries on business.

As well, there is no evidence that the network extends to the western side of the Roberts Property, where the UST was removed in 1995. [ 90 ] With respect to that UST, Mr. Gillis states that the UST was removed and the impacted soil – some 15 tonnes – was remediated to the satisfaction of the PDOE.

He states that for any residual contamination to have migrated to the boundary with the Alpha Property as free-phase PHC, it would require a preferential pathway, and there is no evidence of any such preferential pathway. [ 91 ] As well, he states that the depth of the UST on the Roberts Property means that any contamination caused by that UST would not explain the higher concentrations of contamination that were documented by Stantec at shallower levels, some only 2 to 2 ½ feet from the surface. The contamination would not rise from a lower depth, towards the surface. That is why Mr.

Gillis feels the contamination was more likely to have been surficial contamination. This is consistent with Mr. Dionne’s rationale for excluding the UST on the Alpha Property. [ 92 ] With respect to the 1994 Phase 1 ESA completed with respect to the Roberts Property, which had not been available when he initially arrived at his opinion in this matter, Mr. Gillis states that the only new information from that ESA was the presence of PHC staining on the western side of the Roberts Property and the past use of a sump pump in the garage pits.

He stated that the staining is not likely the source because it was fully remediated in 1995, with the removal of contaminated oil and because there are no preferential pathways connecting the western side of the Roberts Property to the Alpha Property. And as for the sump pump, that practice was discontinued in 1995 and there is no evidence as to where the sump drained, or whether it transects with the network of the catch basins and drain tiles. [ 93 ] Also, he states that lubricating oil will float in water.

Therefore, if there was seepage of PHCs from the pits in the garage, he would not expect to find free-phase PHCs. But he indicated that, in any event, there is no evidence these pits are seeping or draining anywhere. [ 94 ] On cross-examination, Mr. Gillis was asked whether it would be possible for Mr. Roberts to “map” or trace the catch basin network. He said it could be done, but that to the best of his knowledge it had not been done. [ 95 ] Mr. Gillis, like Mr.

Dionne, states that, without additional forensic testing, he cannot say how long the PHC contamination was present on the Alpha Property, but he testified that he believes it was likely present in 2011, when the first contamination was detected.

He does not believe there is new contamination flowing onto the Alpha Property. [96] When asked about the significance of the PHCs being in free-phase, Mr. Gillis testified that he is not surprised by that given itwas identified in the bedding material of the drain tile, a preferential pathway. [97] In the end, Mr.

Gillis maintains that, while the Roberts Property is a possible source of the PHC contamination identified in 2011and 2016, it is but one of several possible sources (including Alpha itself) and the mechanism by which those PHCs might have escapedthe Roberts Property has not been explained by Stantec. [98] That was the pertinent evidence before the Court.

THE PLAINTIFF ALLEGATIONS [99] The Plaintiff maintains that the free-phase PHCs (which were predominantly comprised of lubricating oil) likely escaped fromthe Roberts Property and migrated to the Alpha Property through the catch basins and drain tiles, which are preferential pathways. [100] Alpha argues that Auto Surgeon is the closest automobile service station. It uses lubricating oil as part of its business.

It is likely,it argues, that Auto Surgeon had spills of lubricating oil and other PHCs over the years, which settled into the mechanic pits or which randown the shop floor into other drains or to the outside. The pits were once pumped, and might well have been pumped into the catchbasin system, such that those spilled PHCs made their way, in free-phase, to the preferential pathways and onto the Alpha Property. [101] Alpha pleads against Mr.

Roberts in negligence, in nuisance and in strict liability in accordance with the principle in Rylands v.Fletcher. [102] As for the alleged negligence, counsel for Alpha stated in argument that Mr. Roberts is negligent by failing to take any steps sincebeing notified in 2017 of the contamination at the property boundary to remedy the situation, and to prevent the further escape of PHCs,and in having permitted the use of sump pumps to discharge PHCs from the mechanic pits into the municipal sewer. [103] As for nuisance, Alpha cites and relies on the case of Sorbam Investments Ltd. v.

Litwack, 2021 ONSC 5226; affirmed 2022ONCA 551 The facts of that case are helpfully summarized by the Court of Appeal as follows: [4] The appellant and the respondent owned neighbouring properties. The appellant purchased its property from the Litwacks in 2007. The Litwacks’ former tenants had operated a dry cleaning business on the property.

The respondent owned the neighbouring property tothe south from April 1987 until it was sold in April 2017. [5] The central issues at trial were whether contaminants had migrated from the appellant’s property to the respondent’s property (asalleged by the respondent) or vice versa (as alleged by the appellant), and when the appellant received notice of the contaminantmigration issue. [6] Based on her assessment of the expert evidence at trial, the trial judge found that the contaminants found on the respondent’sproperty had migrated there from the appellant’s property through permeable material in the soil (silty, sandy material).

She found thatthe groundwater flow across the respondent’s property was from the northwest towards the west-southwest, that is, from the appellant’sproperty towards the respondent’s property.

She also found that the behaviour and shape of the contaminant plume on the respondent’sproperty was consistent with contamination migrating from the appellant’s property to the respondent’s property. [7] The trial judge found that although the appellant was not the initial spiller of the contaminants (which she found, on a balance ofprobabilities, came from the dry cleaning business run by the previous landowners’ tenants), the appellant was on notice of the migrationof contaminants from its property to the respondent’s property by, at the latest, the intervention of the Ministry of the Environment (the“Ministry”) in May 2011.

She found that the appellant allowed the migration of contaminants to continue after that date, and failed totake reasonable steps to address the problem within a reasonable time. The trial judge found that as a result of the appellant’s inactiononce it had notice of the migration problem, there was an appreciable increase in the environmental contamination of the respondent’sproperty, and the respondent suffered harm.

She concluded that the appellant’s failure to take any meaningful steps to remediate and stopthe migration of the contaminants after it had notice of the problem constituted nuisance and negligence.

[8] With respect to nuisance, the trial judge found that the migration of contaminants from the appellant’s property caused physicaldamage to the respondent’s property, prolonged the sale process for the respondent’s property and, ultimately, decreased the price forwhich the property sold.

She found that this damage met the threshold of being a substantial and unreasonable interference with therespondent’s use or enjoyment of its property, and thus constituted a nuisance. [9] With respect to negligence, the trial judge found that as an adjoining landowner, the appellant owed a duty of care to avoid acts oromissions that would cause harm to the respondent. She found that rather than following the direction of the Ministry, the appellantmade a calculated decision to ignore the Ministry’s requests that the appellant investigate and address the migration of contaminants tothe respondent’s property.

This behaviour was not consistent with the standard of care of a reasonable landowner. In light of her findingthat the migration of contaminants from the appellant’s property to the respondent’s property continued after the appellant hadknowledge of the issue, and that there was an appreciable increase in environmental contamination to the respondent’s property as aresult of the appellant’s inaction, the trial judge found that the appellant caused damage to the respondent. [104] Alpha maintains that, regardless of whether Mr.

Roberts caused the escape of oil, he is liable for any PHCs which migrated fromthe Roberts Property onto the Alpha Property and cites the trial decision in Sorbam as an accurate statement of the law relating to thewithin action. In that trial decision, Justice Ryan Bell stated: [134] 112Co’s knowledge of the migration of contaminants is relevant to both nuisance and negligence. With respect to nuisance, as Ihave already discussed, although 112Co did not cause the migration of the contaminants, 112Co may be liable if, with knowledge, itallowed the migration of the contaminants to continue.

As Roach J. wrote in Schoeni v. King, (ON SC), [1943] O.R. 478(Ont. Sup. Ct.), aff’d at (ON CA), [1944] O.R. 38 (Ont. C.A.): The occupant of property will be liable for a nuisance not created by him, and even though it has arisen without his own act or default, ifhe omits to remedy it within a reasonable time after he knows of its existence, or ought to have become aware of it. [105] As for the principle in Rylands v. Fletcher, the Plaintiff cites the case of Canadian Tire Real Estate Ltd. v.

Huron ConcreteSupply Ltd., 2014 ONSC 288 where that Court stated: [8] In para. 103 of its written argument, Canadian Tire set out the doctrine from Rylands v. Fletcher, [1868] UKHL 1, LR 3 HL 330,which imposes strict liability for injury caused by the escape from the defendant’s property of a substance that is likely to causemischief, even without proof of the defendant’s negligence. [9] In para. 104 of its written argument, Canadian Tire submitted that in Smith v.

Inco, 2011 ONCA 628, 107 O.R. (3d) 321, at para.71, the Ontario Court of Appeal accepted the following four elements, which if proven, establish strict liability: (

a) the defendant made a “non-natural” use of its land, or “special use” of its land; (

b) the defendant brought on to its land something that was likely to do mischief if it escaped; (

c) the substance in question in fact escaped; and (

d) damage was caused to the plaintiff’s property as a result of the escape of the non-natural-substance. [10] Mr. Dahme asserted on behalf of Canadian Tire that Canadian courts have repeatedly found the owners and operators of leakyunderground storage tanks subject to the Ryland v. Fletcher doctrine for that particular use of lands: see e.g. Bisson v. BrunetteHoldings (1993), 15 C.E.L.R. (N.S.) 201 (Ont. Gen. Div.), at paras. 28-29; Allain v. Texaco (1977), (NB KB), 18N.B.R. (2d) 449 (Q.B.), at para. 7, varied on other grounds at (1978) (NB CA), 21 N.B.R. (2d) 681 (C.A.); BritishColumbia Telephone Co. v.

Shell (1987), (BC SC), 13 B.C.L.R. (2d) 210. [11] Mr. Dahme also asserted that Canadian courts have repeatedly found that the escape of gasoline constitutes an escape to which theRylands v. Fletcher applies: see e.g. Ayoub v. Beaupre, (SCC), [1964] S.C.R. 448; Doherty v. Allen (1986), 1987

7271 (NB KB), 86 N.B.R. (2d) 361; Colonial Developments (IV) Ltd. v. Petro-Canada, [1996] A.J. No. 1140, at para. 4; Smithv. Inco, at para. 82. DEFENCE POSITION [106] Effectively, Mr. Roberts argues that there is simply insufficient evidence to find that the PHC contamination identified in 2011and 2016 on the Alpha Property originated on the Roberts Property.

He maintains that, whether in negligence, nuisance or under strictliability, there can be no legal liability against him unless the Plaintiff proves on the balance of probabilities that the contaminationoriginated or crossed over to the Alpha Property from the Roberts Property. [107] As well, Mr.

Roberts argues that, if there was any such migration of PHCs from his property, the damages arising from the 2011remediation would be statute-barred by virtue of the Limitation of Actions Act, given that Alpha was aware of the presence of PHCs(which were predominantly lubricating oil) at the property boundary, Alpha knew that Auto Surgeon used lubricating oil in its business,and Alpha presumably knew (as it now asserts) that it did not originate from Alpha’s operations.

ANALYSIS Did the PHCs migrate from the Roberts Property to the Alpha Property? [108] Regardless of whether this lawsuit is based in negligence, nuisance or pursuant to strict liability in accordance with the principlein Rylands v. Fletcher, the Plaintiff must prove that the PHCs discovered in 2011 and 2016 originated from the Roberts Property. IfAlpha cannot prove that element on the balance of probabilities, then the claim fails under all three causes of action. [109] So, has the Plaintiff proven that element? In my view, the answer is no. [110] In the end, Mr.

Dionne maintains that the Roberts Property is the likely source of the contamination because the PHCs arepredominantly lubricating oil, because Alpha does not use lubricating oil, and because Auto Surgeon next door does. He states that thepresence of free-phase PHCs would be consistent with migration via preferential pathways, i.e. the network of catch basins and draintiles which cross the property boundary. [111] But when one closely examines Mr. Dionne’s opinion in this matter, he does little more than raise a number of unproven theoriesof how the PHCs might have escaped the Roberts Property.

Initially, it was the presence of USTs on the Roberts Property, one of whichwas for waste oil (i.e. lubricating oil). But we know that that UST and the impacted soil on the western side of the Roberts Property wasremediated in 1995, with the removal of some 15 tonnes of soil. The PDOE approved the closure of the remediation. That source istherefore unlikely. [112] Also, Mr. Dionne is unable to identify any preferential pathways that might allow PHC contamination on the western side of theRoberts Property to migrate to the eastern side, i.e, to the boundary with the Alpha Property.

He proposes the possibility that there areother portions of the catch basin and drain tile network that might facilitate the migration, but that is mere speculation. [113] As well, there is no evidence of any significant spills or discharges of oil from Auto Surgeon. Mr. Hurd described the system thatis followed regarding the collection, containment and disposal of lubricating oil and other PHCs. The Plaintiff did not impeach any ofthat evidence. Yes, Mr. Hurd described some small spills which were addressed either with the use of specialized rags or an absorbentmaterial intended for PHCs.

But there is no evidence of spills or escapes of lubricating oil that would explain the contaminationencountered in 2011 and 2016. [114] Mr. Dionne suggests that the past use of a sump pump from the mechanics pits could be an explanation for how spilled PHCscould be discharged into a drain system. But again, there is no evidence as to where the drains discharged and no evidence that thedrains were in any way interconnected with the catch basins and drain tiles. Also, the evidence satisfies me that the pits do not havedrains and do not drain on their own – that is, there is no evidence of seepage from the pits.

It is, again, mere speculation from Mr.Dionne as to what might have occurred. [115] As well, Mr. Dionne was unable to explain why the lab results showed higher concentrations of contamination at shallowerdepths from the sampling that was done in 2011 and 2016.

[ 116 ] Mr. Dionne states that other potential sources of contamination are less probable than the Roberts Property. These include the gas station some 50 metres away, the commercial towing business and other automobile service stations in the area. He also states that there are no known historical uses of the Alpha Property which would offer an obvious source for lubricating oil contamination, including use by CN and the military. But it cannot be forgotten that the FDOE advised in 1993 that “All locations in the Moncton Main Shop Complex Site should be analyzed for BTEX and TPH [i.e.

PHCs].” This is a brownfield, and in that context the Plaintiff has to do more, in my view, than merely point out possible manners in which lubricating oil could have escaped the Roberts Property and migrated to the Alpha Property. [ 117 ] Finally, Mr.

Dionne seems to have ignored that Alpha was, in fact, using lubricating oil in its business operations in 1994 (and for who knows how long after that) based on the Phase 1 ESA conducted by JWEL, and that its personnel were not properly trained with respect to the handling of chemicals. [ 118 ] While I acknowledge that the Defendant has done nothing to investigate the source of the contamination, there is no legal duty on the Defendant to disprove the Plaintiff’s allegations. Also, while Mr.

Roberts has not proceeded with the recommended Phase 2 ESA on his property, nor did Alpha conduct a recommended Phase 2 ESA in 2001. Both parties have done the minimal testing required, and the Court cannot fault only Mr.

Roberts in that respect. [ 119 ] While I accept that the Roberts Property and the business operations at Auto Surgeon are one of the possible sources for the contamination – and perhaps, in fact, the most likely among those possible sources – the Plaintiff has failed to prove on the balance of probabilities that it is likely the source. [ 120 ] As stated by Linden et al. in their text, Canadian Tort Law , 11 th Edition (2018): “In other words, in contrast to the reasonable doubt standard in criminal cases, the plaintiff must establish by relevant evidence that it is more likely than not that the defendant was to blame for the plaintiff’s injury.

If the evidence shows only that the defendant may have been at fault, the plaintiff will fail.” [ 121 ] As a result, the Plaintiff’s claim – whether framed in negligence, nuisance or strict liability – must fail. ALTERNATIVELY, THE PLAINTIFF’S CLAIM IN NEGLIGENCE [ 122 ] If I am in incorrect with respect to the analysis of whether PHCs migrated onto the Alpha Property from the Roberts Property, I will consider the Plaintiff’s claim in negligence. During argument, counsel for Alpha stated that that Mr.

Roberts was negligent in two respects: by failing to take any steps since being notified in 2017 of the contamination at the property boundary in order to prevent ongoing contamination, and secondly, in having permitted the use of sump pumps to discharge PHCs from the mechanic pits into the municipal sewer. [ 123 ] Let us address those in reverse order. The evidence is that the sump pump was employed to empty the mechanics pits into a drain on the premises until 1995. There is no evidence that that practice continued beyond 1995. The Defendant has pleaded the Limitation of Actions Act .

Section 5(1) of that Act reads: 5(1) Unless otherwise provided in this Act, no claim shall be brought after the earlier of (

a) two years from the day on which the claim is discovered, and (

b) fifteen years from the day on which the act or omission on which the claim is based occurred. [emphasis added] [ 124 ] Here, the allegedly negligent act occurred, at the latest, in 1995. The claim was commenced in 2018. By virtue of s. 5(1)(b), any such claim is statute-barred.

[125] As for the alleged failure to act since Alpha first notified Mr. Roberts of the contamination in 2017, the Court is confused as tohow Mr. Roberts’ actions or inaction since 2017 in any way caused the damage which was identified in 2011 and 2016. Counsel for thePlaintiff was unable to answer that question during closing arguments, which goes some way in showing how meritless that position is. [126] Any claim in negligence is therefore struck.

IN THE ALTERNATIVE, THE IMPACT OF THE LIMITATION OF ACTIONS DEFENCE ON THE 2011 CLAIM [127] As stated above, the Limitation of Actions Act provides that a claimant must commence proceedings within 2 years of whenhe/she/they discover the claim. Section 5(2) of the Act explains when a claim is discovered: 5(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (

a) that the injury, loss or damage had occurred, (

b) that the injury, loss or damage was caused by or contributed to by

an act or omission, and (

c) that the act or omission was that of the defendant. [128] Mr. Roberts argues that everything the Plaintiff knew when it commenced the action in 2018 was known to it in 2011 – that therewas PHC contamination on its property at the western boundary with the Roberts Property; that the PHC was predominantly lubricatingoil; that Alpha (allegedly) did not use and had never used lubricating oil; and that Auto Surgeon next door used lubricating oil in its dailyoperations. [129] Alpha maintains that it was not until 2016 that it discovered the southern drain tile and the new preferential pathways.

Alphaargues that was new information. However, the Plaintiff knew in 2011 that the free-phase PHC was in the bedding of the northern draintile, which is also a preferential pathway. Also, Stantec specifically advised Alpha in its 2011 Closure Report that the PHCs may havemigrated via the drain tile. [130] In Grant Thornton LLP v.

New Brunswick, 2021 SCC 31 the Supreme Court held that “a claim is discovered when aplaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s partcan be drawn.” (emphasis added). [131] In my view, Alpha had all the material facts it required to draw a reasonable inference that the PHCs might have been originatingon the Roberts Property. Alpha’s consultant specifically told them that the contamination might have originated on the Roberts Propertyand migrated via the drain tile.

What more would have been required? [132] I therefore conclude that, irrespective of whether the PHC contamination originated on the Roberts Property, Alpha’s claim withrespect to the 2011 remediation is statute-barred in any event. IN THE ALTERNATIVE, PLAINTIFF’S CLAIM IN NUISANCE [133] In the event I am incorrect regarding whether the PCHs migrated into the Alpha Property from the Roberts Property, the Plaintiffalleges nuisance. As noted above, the Plaintiff cites the Sorbam decision from Ontario, and in particular paragraph 134 from the trialjudge’s reasons.

[ 134 ] It would seem that in order for Mr. Roberts to be liable in nuisance for the acts of his tenant, Mr. Hurd, the Plaintiff must prove the migration of PHCs occurred both with the knowledge and approval of Mr. Roberts. [ 135 ] There is no evidence before the Court to conclude that Mr. Roberts knew of such contamination or permitted it to occur. Therefore, any claim in nuisance against Mr. Roberts must fail.

PROVISIONAL ASSESSMENT OF DAMAGES [ 136 ] While I have dismissed the Plaintiff’s claim, I will nonetheless provisionally assess the damages that have been claimed. [ 137 ] I should note that Alpha claimed general damages in this matter, but it provided the Court with no evidence to substantiate an award of general damages. [ 138 ] The only evidence before the Court is with respect to the fees paid to Stantec and for lab testing, and for trucking and other fees associated with soil removal and disposal, etc. I note that Mr.

Hamilton acknowledged on cross-examination that his company is HST registered, and as such is not entitled to recover HST. Having reviewed those invoices, I find that the Plaintiff has proven that it incurred the following special damages in relation to the two instances of contamination identified on the Alpha Property: 2011 REMEDIATION [ 139 ] Alpha paid $13,203.24 in fees to Stantec for a Phase 1 and Phase 2 ESA. However, Mr. Hamilton admitted on cross-examination that the Phase 1 ESA was required, regardless of the identification of PHC contamination. Neither the invoice submitted from Stantec, nor Mr.

Hamilton’s testimony provides any breakdown. As a result, the Court will divide those fees in half, i.e. $6,601.62.

In addition, Stantec incurred disbursements of $9,796.31. [ 140 ] As well, Alpha paid $12,000 to Rebco Trucking to excavate and haul contaminated soil. [ 141 ] The claims in respect to the 2011 contamination are therefore $28,397.93 (provisionally). 2016 REMEDIATION [ 142 ] Stantec paid $4,240 to Sugar Shack Construction for the cost of excavating and hauling contaminated soil. [ 143 ] All other costs incurred by Alpha regarding the 2016 were paid to Stantec, which incurred disbursements for such things as the disposal of contaminated soil (paid to Elmtree Environmental Ltd.) and for all testing etc.

The total fees and disbursements paid to Stantec total $26,366.84. [ 144 ] As a result, the provisional assessment of damages for the 2016 contamination is $30,606.84. [ 145 ] The total provisional damages are therefore $59,004.77, exclusive of any pre-judgment interest. DISPOSITION [ 146 ] The action is dismissed. [ 147 ] The Defendant, Cleve Roberts, shall be entitled to costs pursuant to Rules 79.11 and 59.14 (Tariff “A”) of $3,225 (based on an amount involved of $60,000) plus allowable disbursements.

DATED at Moncton, New Brunswick this 20 th day of March, 2023. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick