Docket: CACV2132 Strand Theatre Ltd. Appellant (Plaintiff) - v. -, 2014 SKCA 85

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 85 Date: 2014-08-19 Between: Docket: CACV2132 Strand Theatre Ltd. Appellant (Plaintiff) - and - City of Prince Albert Respondent (Defendant) Coram: Richards C.J.S., Whitmore and Ryan-Froslie JJ.A. Counsel: Gordon R. McKenzie, Q.C. for the appellant Mitchell Holash, Q.C. for the respondent Appeal: From: 2011 SKQB 209 Heard: May 27, 2014 Disposition: Dismissed

Written Reasons: August 19, 2014 By: The Honourable Madam Justice Ryan-Froslie In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Whitmore Ryan-Froslie J.A. I. introduction [ 1 ] Strand Theatre Ltd. (hereinafter referred to as “Strand Theatre”) appeals the judgment of the Court of Queen’s Bench dismissing its claim in nuisance against the City of Prince Albert (hereinafter referred to as “the City”) (See: 2011 SKQB 209 ).

The claim arose out of Strand Theatre’s allegation that chemicals from leachate forming at the City’s decommissioned landfill site #3 were being carried by groundwater to its property. It is Strand Theatre’s position that this interfered with its use and enjoyment of the property by negatively impacting its ability to sell and/or mortgage it. [ 2 ] Strand Theatre appeals the judgment on the basis the trial judge’s findings of fact were not supported by the evidence or were contrary to the evidence.

It also suggests the trial judge erred in law in finding there was no nuisance, and by imposing upon Strand Theatre a scientific rather than a legal standard of proof. [ 3 ] I conclude, for the reasons set out herein, that Strand Theatre’s appeal must fail. II. background [ 4 ] Since the 1950s, Strand Theatre has owned property in the City of Prince Albert’s Northern Industrial Park. Until 2004 that property was utilized as a drive-in theatre. Historically, the City operated a number of landfill sites in the area of the Northern Industrial Park.

Landfill site #3, which was decommissioned in the 1970s, is located to the north of Strand Theatre’s property. [ 5 ] In February 2000, Strand Theatre accepted an offer to purchase the property for $325,000. On June 30, 2000, at the request of the purchaser, P. Machibroda Engineering Ltd. (hereinafter referred to as “PMEL”) completed an Environmental Phase I Assessment of the property. That assessment identified a number of potential environmental concerns. On-site concerns included the fact Great West Iron, Woods and Chemical Works Limited had owned the property from 1913 to 1921.

Its activities were listed as unknown. Also located on site were two septic tanks, an above ground heating oil storage tank, a solid waste bin, possible PCBs from both fluorescent light ballasts and electrical transformers, and the potential presence of lead paint and asbestos containing material.

Off-site concerns included former landfills operated by the City, a highway which had run adjacent to the property and neighbouring land uses including a construction company, a service road, a rail line, Northern Grocers, a Public Works yard and Precision Industrial Ltd. [ 6 ] PMEL recommended a Phase II Assessment be completed to determine the potential impact the landfills were having on the groundwater beneath the Strand Theatre property. The Phase II Assessment was completed by PMEL and a report rendered on August 11, 2000.

That report concluded “…off-site solid waste disposal (landfill) sites have impacted the subject property due to potential leachate migration”. [ 7 ] As a result of PMEL’s reports, the potential purchaser for the Strand Theatre property was unable to obtain financing and the sale fell through. Strand Theatre then commenced legal action against the City claiming nuisance and breach of the City’s statutory duty pursuant to s. 321 of The Urban Municipality Act, 1984 , S.S. 1983-84 c. U-11. It requested damages and injunctive relief.

Strand Theatre then retained PMEL to complete a second Phase II Environmental Assessment to obtain additional background water quality information for the Strand Theatre property and for the City’s nearby landfill sites. PMEL rendered that report on December 31, 2001.

The report concluded that the City’s former landfill sites had “… to varying degrees, impacted the groundwater flow from the north towards the North Saskatchewan River including the groundwater …” beneath the Strand Theatre property. [ 8 ] PMEL’s December 31, 2001 report was given to the City which then asked AMEC Earth and Environmental Limited (hereinafter referred to as “AMEC”) to review it. AMEC found there was “a great deal of uncertainty” regarding PMEL’s results. In brief, its criticisms were as follows: 1. PMEL did not filter its water samples.

It used total metal samples which is not appropriate because the results often reflect failings of the well installation and sampling methodologies rather than the true qualities of the water being tested. 2. PMEL used “potable” rather than “non-potable” water standards. This was not appropriate as the property in issue is utilized for industrial purposes and is serviced by the City’s municipal water supply. 3. There were discrepancies in the guidelines and criteria listed in PMEL’s

summary tables.

4. PMEL had provided no quality assurance or quality control data. 5. PMEL did not define any well(

s) as being “representative background” for comparative purposes. 6. PMEL did not demonstrate higher “contaminant” concentrations at the landfill as opposed to downgradient. 7. PMEL did not include its February 2001 data in its evaluation. In short, AMEC completely discredited PMEL’s December 31, 2001 assessment. [ 9 ] In May 2000, Saskatchewan Environment and Resource Management (hereinafter referred to as “SERM”) received a complaint from a land owner in the Northern Industrial Park alleging “contamination” of land in the park by the City’s former landfills. SERM commenced an investigation.

On June 20, 2001, it issued a Phase I Environmental Assessment report which concluded there were old landfill sites in the area of the Northern Industrial Park. It found however, there was insufficient evidence to accurately determine the status of the groundwater or if “deleterious leachate was migrating from those landfill locations”. A Phase II Investigation was required. This was completed by SERM and on October 25, 2002 a report was issued. That report concluded at p. 1 as follows: Additional sampling was performed…Results show the former landfills have a definite influence on the groundwater quality.

Chloride results revealed pattern of increasing concentration near and downstream of landfill sites, although the more attenuated metals concentrations did not increase as markedly. Results from this second round of sampling were compared to Ontario Ministry of Environment (MOE) non-potable groundwater criteria and found to be well below those standards for Commercial/Industrial development. However it does appear that the former landfills have caused a change in groundwater quality downstream of the landfill sites ….

Therefore, as a result of this investigation and to gain compliance with the Act, SERM will issue a Minister’s Order to the City of Prince Albert for the mitigation of the release which will include an ongoing monitoring of the piezometers installed for this investigation. This program will monitor the concentrations and movement of select groundwater constituents over the long term in order to protect the quality of water in the North Saskatchewan River.

Should there be an indication of the contaminant plume threatening the environment or public health, the City will be directed to take the appropriate steps to remediate or mitigate the problem. [Emphasis added] [ 10 ] Despite the report’s recommendation for water monitoring, no Minister’s Order was issued and, as a result, no water monitoring occurred until 2005. [ 11 ] On August 19, 2005, PMEL provided a groundwater monitoring report to the City. That report disclosed elevated chloride concentrations in the groundwater samples taken.

Based on that, PMEL concluded the groundwater was being influenced by the City’s landfills. [ 12 ] On December 20, 2006, PMEL provided a second groundwater monitoring report to the City. It concluded there was a “marginal increase” in the concentration of “chemical constituents” in the groundwater sample recovered from Test Hole #06-9.

The concentration of chemical constituents in the remaining water samples analyzed remained relatively constant over the monitoring interval. [ 13 ] In 2008, Strand Theatre asked PMEL to prepare a supplemental Phase II Environmental Assessment to be used in its legal action against the City. The purpose of the assessment was to determine if subsurface conditions had changed significantly from those reported in previous investigations conducted with respect to its property.

The report, which was issued on August 11, 2008, concluded the City’s landfill sites continued to impact the groundwater flowing beneath the Strand Theatre property. PMEL based its opinion on the fact it found PCBs, dissolved arsenic and elevated levels of chloride in their groundwater samples. These findings later came under attack and in September 2010, on the eve of trial, it was found that the lab had erred and there were no PCBs in the groundwater. [ 14 ] The City asked Dr.

Giesy, an expert in environmental toxicology, to critique all of PMEL’s reports and provide his opinion as to whether leachate chemicals were migrating from the City’s landfill #3 to the Strand Theatre property. Dr. Giesy rendered two reports dated July 15 and July 16, 2009. In Dr. Giesy’s opinion, there was “no consistent and persuasive evidence” of off-site migration of leachate from the City’s landfills. Dr. Giesy found deficiencies in the quantification and reporting of the data by PMEL.

His conclusions, as set out at para. 13 of his July 15 report were as follows: 13. …There were discrepancies among the Machibroda reports and a general lack of consistency in results reported and conclusions drawn that suggested poor quality control, which brings into question all of the analytical results and the conclusions drawn from these analyses by Machibroda. The data presented is not consistent with a pattern of residues that would be expected from landfill leachate.

Concentrations of all of the parameters are less than any available criteria for the protection of groundwater and with the exception of one volatile organic compound, in the range that would be expected for this area of Canada. I am skeptical of the result given for that single VOC, since it appears in only one well, the concentration is near the limit of quantification and there are no detectable concentrations of other VOC more commonly found in landfills. There are inconsistencies in the data reported in the Machibroda reports and the conclusions drawn.

The analyses of the data conducted by Machibroda were not consistent with standard scientific practice and not convincing that there was contamination of the Strand Theatre Site or the reputed source of the alleged contamination was the landfill formerly operated by the City of Prince Albert. [ 15 ] On February 28, 2010, PMEL completed yet another report for Strand Theatre to determine if leachate from the City’s landfills was migrating onto Strand Theatre’s property. In preparing that report, PMEL changed both the groundwater flow pattern and the way it

reported its results. PMEL again concluded that leachate from the City’s landfill site to the north of the Strand Theatre property was affecting the groundwater beneath that property. [ 16 ] The City then asked Mr. Judd-Henrey, a geoscientist with AMEC, to review all of PMEL’s reports and provide his opinion regarding PMEL’s “…methods, results, associated

interpretations and conclusions”. In a report dated July 15, 2010, Mr. Judd-Henrey concluded “…that the data, analyses and associated conclusions presented in PMEL’s reports…are unconvincing, questionably-founded, and do not present a technically-sound argument that the former City of Prince Albert landfills are a source of the groundwater conditions observed beneath …” the Strand Theatre property. [ 17 ] Both Dr. Giesy and Mr. Judd-Henrey who testified as experts on behalf of the City were critical of PMEL’s conclusions as set out in its February 28, 2010 report.

That report was the one primarily relied upon by Strand Theatre at trial. In the opinion of both Dr. Giesy and Mr. Judd-Henrey, PMEL’s upgradient test well (#09-1) did not share the same groundwater flow as the downgradient wells tested. They felt the site test holes used by PMEL were not sufficient to establish the hypothesis proposed by it, that is, that leachate from the City’s landfill site #3 was affecting the Strand Theatre property. Dr. Giesy and Mr.

Judd-Henrey were also concerned with PMEL’s use of “averaging” to obtain its results and its assignment of a numerical value of “zero” to parameters (chemicals) which measured below the limit of quantification. They testified this skewed PMEL’s results. In their opinion there was insufficient evidence to establish the migration of chemicals from leachate at the landfill site was occurring.

They noted PMEL’s investigation had not eliminated other possible sources for the chemicals of concern (for example, chlorine) and that significant parameters that should have been present if leachate were migrating from the landfills were notably absent from the groundwater tested. Those parameters included BOD (Biological Oxygen Demand), COD (Chemical Oxygen Demand), ammonium and sulfate. Dr. Giesy testified there was no consistent pattern found in PMEL`s water samples attributable to the landfill and that PMEL did not link the data collected to its conclusions.

III. decision of the trial judge [ 18 ] The trial judge’s legal reasoning is not easy to follow. While he cited considerable case law, he did not explain how that case law applied to the situation before him. He did, however, make a number of findings of fact, including the following: 1. That there was “no evidence” that the minute increase in chlorides, iron and other chemicals within the groundwater under the Strand property originated from the City’s landfill site #3 as opposed to other upgradient sites or from the plaintiff’s own property. (See: paras. 37 and 60 of the judgment); 2.

That the parameters (chemicals) of concern were so minute they could not reasonably be expected to cause injury or harm to the plaintiff’s property (See: para. 61 of the judgment); 3. That there was no unreasonable interference with the plaintiff’s use or enjoyment of its property. (See: para. 63 of the judgment); and 4. That if nuisance had been proven, Strand Theatre failed to establish it suffered any damages as a result. (See: paras. 66-67 of the judgment). [ 19 ] Based on his findings of fact, the trial judge concluded Strand Theatre had failed to prove its claims and dismissed its action against the City.

IV. grounds oF appeal [ 20 ] Strand Theatre’s grounds for appeal may be summarized as follows: 1. The trial judge’s findings of fact were not supported by the evidence or were contrary to the evidence; 2. The trial judge erred in law in failing to find nuisance; and 3. The trial judge erred in law by applying the wrong standard of proof. V. standard of review [ 21 ] A trial judge’s findings of fact and credibility are entitled to deference by appeal courts. The standard of review with respect to findings of fact is “palpable and overriding error” (See: H.L. v. Canada , 2005 SCC 25 , [2005] 1 S.C.R. 401).

The standard of review with respect to questions of law is one of correctness (See: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235). VI. analysis 1. The Trial Judge’s Findings of Fact Were Not Supported by the Evidence or Were Contrary to the Evidence [ 22 ] It is Strand Theatre’s position that the trial judge’s “key” findings of fact are set out in paras. 51-60 of the judgment and that “… in virtually every one of those paragraphs his findings were either contrary to or unsupported by the evidence.” (

i) Paragraph 51

[ 23 ] Paragraph 51 of the judgment reads as follows: The Saskatchewan Environment 2002 Report contradicted the earlier PMEL phase 2 report from 2000 and the follow-up phase 2 Environment Site assessment of PMEL for December 31, 2001 which were used as the basis for requesting opinions from financial institutions for the alleged purpose of proving financing was not obtainable.

The subsequent Saskatchewan Environment Report was not included in the information made available by the plaintiff to the financial institutions. [ 24 ] Strand Theatre argues that the trial judge incorrectly concluded the first two PMEL reports were contradicted by the SERM report. I do not agree. [ 25 ] The danger of focusing on a single paragraph in a judgment, as opposed to evaluating that paragraph in the context of the judgment as a whole, is that it can lead to misinterpretation.

The trial judge, at paras. 17 and 49-50 of his judgment, quoted from the SERM report, including its conclusion that “… the investigation has revealed no significant impacts to the groundwater regime in the area due to contaminant migration from the decommissioned landfills. Therefore it is assumed there is no impact to the primary resource needing protection, namely the North Saskatchewan River…” That quote is in direct contradiction to PMEL’s conclusions in its August 11, 2000 and December 31, 2000 reports.

At p. 20 of its August 11, 2000 report PMEL stated “… field screening has revealed off site solid waste disposal (landfill) sites have impacted the subject property due to potential leachate migration” (emphasis added). At para. 6.3, p. 31 of its December 31, 2001 report, PMEL stated, “…[b]ased on the results of the water chemistry analysis, it is our opinion that the former landfill site has to varying degrees, impacted the groundwater flow from the north towards the North Saskatchewan River beneath …” the Strand Theatre property (emphasis added).

These reports are not consistent with respect to the degree of impact from the migration of leachate. “No significant impact” and “no impact” are not the same as “impact” or “varying degrees of impact”. This inconsistency becomes even clearer when one views the evidence as a whole. The trial judge’s conclusion in para. 51 is supported by the evidence. (ii) Paragraph 52 [ 26 ] Paragraph 52 of the judgment reads as follows: The plaintiff alleges that it could not obtain financing requested.

However, the Court finds the failure of the financial institutions to use the property in question as security for financing relates more to the fact that the plaintiff was requesting the moneys for a business development on property other than the property in question. It was not prepared to provide personal guarantees of shareholders. It was requesting what appeared to be unrealistic amounts of funding based on the alleged value of the property.

It provided to the financial institutions copies of reports which have been discredited as being unreliable and making unproven assumptions which were not even being relied upon by the plaintiff at the time of trial of this action. [ 27 ] Strand Theatre argues the trial judge’s finding that the financial institutions refused its request for financing because it did not offer adequate security is not supported by the evidence. [ 28 ] A review of the trial transcript discloses there was evidence to support such a finding.

According to the evidence, personal guarantees from a private corporation’s shareholders are normally required when such corporations are seeking financing. Lars Christensen (Western Canada Bank) testified he would not accept the Strand Theatre property as sole security for the loan requested. Gordon Syme (TD Bank) testified that one of the reasons for rejecting Strand Theatre’s request for financing was that the land was to be the only security for the loan.

Dennis Blain (Conexus Credit Union) gave similar testimony. (iii) Paragraph 53 [ 29 ] Strand Theatre points to one line in para. 53 of the judgment which it asserts does not appear in PMEL’s 2010 report. That line reads as follows: … The 2010 report also alleges that immeasurable levels of constituent elements have stigmatized or created a legal nuisance that has "escaped" from the plaintiff's property. … [ 30 ] The line objected to is not identified by the trial judge as a quote from PMEL’s 2010 report. It is the trial judge’s view of what the report was saying and its legal implications.

Because there was evidence upon which the trial judge could come to the conclusion expressed in that line, I cannot find he committed a palpable or overriding error. (iv) Paragraph 54 [ 31 ] In para. 54 the trial judge stated: PMEL has over the years provided numerous reports concerning the Strand property and the City landfill. These environmental assessments have been prepared for different parties with different agendas and have shown very different results. The reports have often contradicted themselves. [ 32 ] Strand Theatre has two main complaints with respect to this paragraph.

First, it argues the trial judge gave no indication of how the agendas of the parties were different and he did not identify either the different results or how the reports contradicted themselves. It argues the evidence does not support those findings. Second, it alleges the fact the trial judge copied this paragraph from the City’s written submissions raises a concern that the trial judge may not have independently analysed the evidence. [ 33 ] The verbatim incorporation by trial judges in their judgments of portions of the written submissions of the parties is not a practice to be encouraged.

In this case, the trial judge did this on more than one occasion including the line complained of in para. 54. The amount of material copied by him, however, was minimal given the length of the judgment which spans 28 pages. In the circumstances, the judge’s use of the City’s written submissions is not a ground for appellate intervention (See: Cojocaru (Guardian Ad Litem of) v. British Columbia Women’s Hospital and Health Centre , 2013 SCC 30 , [2013] 2 S.C.R. 357 at paras. 1 and 30 ).

[ 34 ] The trial judge’s finding that PMEL has provided numerous reports concerning the Strand Theatre property and the City landfill for “different parties with different agendas” is clearly supported by the evidence.

These parties included the potential purchaser of the property in 2000 who requested PMEL to prepare a report for the purposes of obtaining financing; SERM which used PMEL’s 2000 and 2001 reports as part of the data for its 2002 investigation of an environmental complaint; Strand Theatre which requested PMEL to do several reports to support its claim against the City; and, the City which asked PMEL to prepare water monitoring reports to determine if there was any variation in the quality of the groundwater.

That the trial judge did not set out each of the parties and their agendas does not make his findings unsupportable. [ 35 ] I also find that PMEL’s reports did show different results and, at times, contradicted themselves. “Results” are not synonymous with “conclusions”. While PMEL’s reports came to the same conclusion that is, that leachate formed at the City’s landfill was impacting the groundwater beneath the Strand Theatre property, its “results” and the methodology used to obtain and report them varied. Some examples of this are as follows: (

i) the 2008 report was the only report to find PCBs; (ii) the groundwater flow pattern used in the 2010 report was different from that used in PMEL’s earlier reports; (iii) different standards were used, for example, potable versus non-potable water; (iv) in some reports total metals were used while in other reports dissolved metals were used, and finally, (

v) in 2010 PMEL used averages to report its results. In short, Strand Theatre’s complaints with respect to para. 54 are unfounded. (

v) Paragraph 57 [ 36 ] In para. 57 of the judgment, the trial judge stated: … In their 2010 report they [PMEL] averaged upgradient and downgradient results and removed the results from some of the wells while others were either not analyzed or were below detection limits. [ 37 ] Strand Theatre argues those statements are not supported by the evidence. Again, I cannot agree. PMEL’s February 28, 2010 report clearly states that its results were averaged for both upgradient and downgradient wells (see: para. 5.1.2 of the report and its tables).

In its July 15, 2010 report, AMEC sets out the wells that PMEL did not include in its 2010 report. At p. 14 of that same report, AMEC discusses the effect of PMEL assigning a value of zero to parameters (chemicals) that were not tested or to parameters that were present but measured below the detection limit.

Thus, the trial judge’s conclusions in para. 57 were supported by the evidence. (vi) Paragraph 58 [ 38 ] PMEL’s reason for concluding chemicals from leachate produced at the City’s decommissioned landfill site #3 were migrating to the Strand Theatre property was based primarily on the presence of elevated levels of chlorides in the groundwater tested. In para. 58 of the judgment, the trial judge commented on this as follows: One of the allegations in the 2010 report is the higher concentration of chlorides.

However in order to conclude this PMEL must exclude the high chloride level of one test hole at the upgradient level which they blame on de-icing chemicals used on highway no. 2. There is no suggestion that this could possibly be the cause of any increased chlorides. … [ 39 ] Strand Theatre argues the trial judge in this paragraph misconstrued the evidence, as the test result for the well with the high chloride reading (test hole #01-14) was included by PMEL in its 2010 report. [ 40 ] Counsel has misinterpreted para. 58.

What the trial judge was saying is that PMEL’s chloride results were skewed because it included the results for the well with the high chloride reading. All three experts, Mr. Machibroda, Dr. Giesy and Mr. Judd-Henrey testified that de-icing chemicals from the highway were the likely cause for the high level of chloride ions in test hole #01-14. Thus, the increase in chlorides which PMEL attributed to leachate from the City’s landfill site was due, in part, to the presence of de-icing chemicals found in test hole #01-14.

In the circumstances, I cannot find the trial judge misconstrued the evidence. (vii) Paragraph 59 [ 41 ] Strand Theatre argues the trial judge’s reasons for accepting the testimony and reports of the City’s experts, Dr. Giesy and Mr. Judd-Henrey, over that of Mr. Machibroda and PMEL were not supported by the evidence. Its argument is based on para. 59 of the judgment which reads as follows: The very credible expert witnesses called by the defendant establish that the PMEL 2010 report, which the plaintiff indicated that it was relying upon exclusively, was significantly flawed in the following ways: (

a) inconclusive and inappropriate methodology was utilized by PMEL in completing its 2010 environmental site assessment; (

b) misrepresentation and misstatement of the findings of the PMEL 2010 study and the significance thereof; (

c) the obvious evidence of disregarding facts in the PMEL study; and (

d) the PMEL 2010 report use of inappropriate and unreliable methodologies significantly misstating the accuracy of its findings of increased indicator parameters and the overtly manipulated data that promoted a theory of leachate for the purpose of assisting the plaintiff's case.

The letter from Saskatchewan Environment respecting the Strand property dated August 26, 2010 includes the following statement which is accepted by the Court: The above reviews conclude that the data collected during historical investigations does not lead to the conclusion that the City's former landfills are the source of impacts at the investigation locations. Based on the information provided and recognizing the inherent limitations of the methods employed, the Ministry finds no further justification to endorse the site development limitations contained in the September 14, 2000 SERM communication.

[ 42 ] It is Strand Theatre’s position that the trial judge based his findings of credibility on para. 59 which was copied from the City’s written argument. It contends, based on para. 59, that the trial judge found PMEL “misrepresented” and “manipulated” the data to support Strand Theatre’s claim. It argued that conclusion is not supported by the evidence and accordingly, the trial judge’s reliance on those findings in determining credibility constitutes a palpable and overriding error.

I cannot agree with those submissions. [ 43 ] There is no question that the first part of para. 59 is taken from the City’s written submissions after trial. The parties would have been better served if the trial judge had used his own words to describe the flaws in PMEL’s 2010 report. Having said that, the comments adopted by the trial judge are supported by the evidence, including the testimony of both Dr. Giesy and Mr. Judd-Henrey, their reports and SERM’s August 26, 2010 letter. [ 44 ] AMEC’s July 15, 2010 report refers to misleading statements made by PMEL.

It also talks about incorrect information such as the elevation for test hole #01-14 and the fact PMEL assigned a value of zero to test results for parameters (chemicals) that measured below the detection limit or where the parameters were not analysed.

That report also mentions the fact that PMEL ignored parameters that decreased in concentration or remained static from both the upgradient and downgradient wells, the fact that PMEL used only a small portion of available data in reaching its conclusions and the fact PMEL did not consider any potential sources for the parameters of concern other than the City’s decommissioned landfill sites.

Also of concern to AMEC was PMEL’s use of averages and percentage differences between those averages to compare parameter concentrations, AMEC felt this was a “grave simplification” in that it failed to consider variability between the results within the same group. These represent only a few of the criticisms levelled at PMEL by AMEC and Mr. Judd-Henrey. Dr. Giesy made similar comments in his testimony. [ 45 ] I find the conclusions set out at para. 59 of the judgment are supported by the evidence. [ 46 ] A trial judge’s findings with respect to credibility are to be afforded deference by appellate courts.

Justice Rothstein explained the reason for this at para. 72 of F.H. v. McDougall , 2008 SCC 53 , [2008] 3 S.C.R. 41: … Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility. As explained by Bastarache and Abella JJ. In R. v. Gagnon , [2006] 1 S.C.R. 621, 2006 SCC 17 , at para. 20 : Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L . , that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 47 ] In this case I am unable to find the trial judge made any error in choosing to prefer the testimony and reports of Dr. Giesy and Mr. Judd-Henrey over the PMEL reports and the testimony of Mr.

Machibroda. (viii) Paragraph 60 [ 48 ] Finally, Strand Theatre argues the trial judge incorrectly concluded there was no evidence that leachate was migrating from landfill site #3 to the Strand Theatre property (para. 60 of the judgment). It argues such evidence existed in various forms including PMEL’s reports, SERM’s 2002 report and the testimony of Mr. Machibroda.

Paragraph 60 of the judgment reads as follows: There is no evidence before the Court that the minuet [ sic ] increases in chlorides, iron and other chemicals within the groundwater under the plaintiff's property have originated from the defendant's landfill site #3 as opposed to any other site upgradient of the plaintiff's property or in fact from the plaintiff's property itself. [ 49 ] The problem with Strand Theatre’s argument is that the trial judge did not accept Mr. Machibroda or PMEL’s evidence on this point. He preferred the evidence of Dr. Giesy, Mr.

Judd-Henrey and the AMEC reports which did not support Mr. Machibroda and PMEL’s conclusions. He also relied on SERM’s August 26, 2010 letter. I note that SERM’s 2002 report did not focus on the issue of whether leachate was migrating to the Strand Theatre property. That report dealt with the Northern Industrial Park in general. Its investigation “… revealed no significant impacts to the groundwater regime in the area due to contaminant migration from the decommissioned landfills” (Appendix 4, p. 3).

SERM concluded that it “appears” the former landfill sites have caused a change in water quality, but more investigation was necessary. According to the SERM report, any migration of chemicals from leachate produced at the former landfills was not significant and had no environmental impact on the North Saskatchewan River. [ 50 ] In my view, para. 60 describes the evidence as accepted by the trial judge and the facts as found by him. 2.

Did the Trial Judge Err in Law in Failing to Find Nuisance? [ 51 ] Strand Theatre argues the trial judge erred in law in failing to find nuisance in the circumstances of this case. [ 52 ] The judgment in this case is not a model of judicial reasoning. It is disjointed and deals with issues that were either abandoned by Strand Theatre (ex. breach of statutory duty), or were never raised at all (ex. negligence). The trial judge quoted at length from cases dealing with nuisance, negligence, the rule in Rylands v.

Fletcher (1868), L.R. 3 H.L. 330 , and breach of statutory duty, but he did not explain how the law as quoted was applicable to the facts of the case before him. In the end, Strand Theatre was left feeling the legal issues were not appropriately addressed.

Despite the problems with the judgment as drafted, I am satisfied the trial judge made the key findings of fact necessary to decide Strand Theatre’s nuisance claim. [ 53 ] In order to establish nuisance, Strand Theatre had to prove on a balance of probabilities that the City was interfering, in a substantial and unreasonable manner, with Strand Theatre’s use and enjoyment of the property in question. The City’s alleged “interference” was the migration of chemicals from leachate formed at the City’s decommissioned landfill site #3 to the Strand Theatre property.

According to Strand Theatre, this affected its use and/or enjoyment of the property by making it impossible to sell or mortgage

it due to environmental concerns. [ 54 ] The leading case with respect to the tort of nuisance is the Supreme Court of Canada’s decision in Antrim Truck Centre Ltd. v. Ontario (Transportation) , 2013 SCC 13 , [2013] 1 S.C.R. 594. In Antrim , Cromwell J., writing for a unanimous court, set out at para. 19 a two-step analysis to be used in determining whether nuisance has been established: …[T]o support a claim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable . A substantial interference with property is one that is non-trivial.

Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances…. [ 55 ] The Antrim decision was decided after the trial of this matter and, accordingly, the trial judge did not have the benefit of the Supreme Court of Canada’s analysis when rendering his decision. Instead, he relied on this Court’s decision in Thompson-Schwab v.

Costaki , [1956] 1 W.L.R. 335 . [ 56 ] Regardless of precisely how he stated the law, the trial judge made a number of findings of fact which were fatal to Strand Theatre’s claim in nuisance. First, he found there was no evidence that leachate chemicals from the City’s landfill site #3 were migrating to Strand Theatre’s property.

This finding of fact was crucial because if there was no “interference” there could be no nuisance. [ 57 ] Second, the trial judge found that if any chemicals were migrating from the City’s decommissioned landfill site #3 they were so miniscule they did not substantially and unreasonably affect the Strand Theatre property. This finding was also fatal to Strand Theatre’s claim.

The test for nuisance as set out in Antrim Truck Centre Ltd. , supra , is that the interference alleged must be “substantial and unreasonable”. [ 58 ] Finally, the trial judge found that even if leachate was migrating to the Strand Theatre property from landfill site #3, Strand Theatre’s use and enjoyment of that property was not affected. In particular, he found Strand Theatre’s ability to sell and/or mortgage the property was not impacted as alleged.

The testimony of Colin Innes, director of Public Works for the City, and Lionel Turcotte, senior manager of the Business Development Corporation, supported this conclusion. Based on their evidence, other property in the Northern Industrial Park was being sold and/or refinanced.

Strand Theatre’s evidence that it could not mortgage the property was not persuasive given the circumstances under which that financing was sought and the reasons the financial institutions gave for refusing it. [ 59 ] The trial judge’s findings of fact support his conclusion that Strand Theatre had failed to prove its claim of nuisance. [ 60 ] Strand Theatre argued the trial judge required it to establish “environmental contamination” in order to prove nuisance.

This, Strand Theatre contends, is a higher standard than interference in a “substantial and unreasonable manner”. [ 61 ] While the trial judge used the words “contaminated” and “contamination” in his judgment, I cannot conclude he required Strand Theatre to “prove” contamination in order to establish nuisance. The words “contaminated” and “contamination” were used by Strand Theatre in its statement of claim to describe its cause of action. They were also used by SERM in its 2002 report (see: P. 9), by Dr. Giesy in his July 15, 2009 report and by AMEC in its July 15, 2010 report.

In each instance those words were used to connote the adding of something undesirable to the groundwater. This was in fact the crux of Strand Theatre’s claim against the City. In making his final determination the trial judge did not use the words “contaminated” or “contamination”.

Rather, he found there was no “substantial and unreasonable” interference with Strand Theatre’s property. [ 62 ] Finally, Strand Theatre argues the trial judge required proof of negligence in order for Strand Theatre to establish its claim in nuisance. [ 63 ] In his judgment, the trial judge included the tort of “private negligence” as an issue for determination. No such tort exists, nor did Strand Theatre plead or argue negligence. Strand Theatre had also abandoned its claim with respect to breach of statutory duty. Despite this, the trial judge attempted to deal with those issues in his judgment.

I am satisfied however, from a reading of the judgment as a whole, that the trial judge treated negligence as a separate issue and that it did not form part of his nuisance analysis. He dealt with the claim of nuisance separately. His analysis with respect to that claim is set out in paras. 52, 60, 61, 62, 66 and particularly, 63 of his judgment. [ 64 ] Finally, Strand Theatre takes issue with para. 66 of the judgment.

It argues that in that paragraph the trial judge incorrectly required it to establish “damage” in order to prove its claim of nuisance. [ 65 ] Paragraph 66 of the judgment reads as follows: Even in the event that the Court had concluded that the defendant was strictly liability [ sic ] and the minuscule amounts of chemical increases in the groundwater under the plaintiff's property were caused by a migration from the defendant's landfill #3, the Court does not find the plaintiff has suffered any damage.

The only evidence before the Court respecting the value of the plaintiff's property is that the plaintiff accepted an offer of $325,000 in the year 2000 and the property in 2010 is worth $970,000. [ 66 ] Strand Theatre is correct that it did not have to establish “damage” in order to prove its claim of nuisance. In para. 66 however, the trial judge was not dealing with proof of nuisance, but rather the remedy if nuisance had been established.

Because the trial judge found Strand Theatre had failed to establish its claim in nuisance, there was no reason for him to address the issue of damages or the request for injunctive relief. The trial judge’s comments with respect to damages are therefore superfluous and do not affect his conclusion that Strand Theatre failed to establish its claim of nuisance. 3.

Did the Trial Judge Err by Applying the Wrong Standard of Proof? [ 67 ] Strand Theatre argues the trial judge required it to prove its case with respect to nuisance to a scientific certainty, versus the civil standard of proof being on a balance of probabilities. I cannot agree.

[68] In F.H. v. McDougall, supra, Justice Rothstein discussed how an appeal court should approach the issue of whether a trial judgeapplied the wrong standard of proof in rendering his or her decision. At para. 54, he stated: Rowles J.A. was correct that failure by a trial judge to apply the correct standard of proof in assessing evidence would constitutean error of law. The question is how such failure may be apparent in the reasons of a trial judge. Obviously in the remote example of atrial judge expressly stating an incorrect standard of proof, it will be presumed that the incorrect standard was applied.

Where the trialjudge expressly states the correct standard of proof, it will be presumed that it was applied. Where the trial judge does not express aparticular standard of proof, it will also be presumed that the correct standard was applied: Trial judges are presumed to know the law with which they work day in and day out. (R. v. Burns, (SCC), [1994] 1 S.C.R. 656, at p. 664, per McLachlin J. (as she then was)) Whether the correct standard was expressly stated or not, the presumption of correct application will apply unless it can be demonstratedby the analysis conducted that the incorrect standard was applied.

However, in determining whether the correct standard has indeed beenapplied, an appellate court must take care not to substitute its own view of the facts for that of the trial judge. [Emphasis added] [69] In this case the trial judge referred several times in the judgment to the burden of proof borne by Strand Theatre as being proof ona balance of probabilities. His discussion with respect to scientific proof relates to the standards and methodology used by PMEL inpreparing its reports. What the trial judge found brought PMEL’s results and conclusions into question.

He did not however, requireStrand Theatre to prove its case to a scientific certainty. He said Strand Theatre must prove its claim “on a balance of probabilities”. It ispresumed that was the standard he in fact applied. Nothing in the judgment suggests otherwise. VII. conclusion [70] I understand Strand Theatre’s concern about the clarity of the reasoning in some portions of the trial decision.

Nonetheless, the trialjudge’s key findings of fact are both supportable and determinative of the claim of nuisance in law. [71] Strand Theatre’s appeal is dismissed with costs to the City assessed in accordance with column 4. DATED at the City of Regina, in the Province of Saskatchewan, this 19th day of August, A.D. 2014. “Ryan-Froslie J.A.”__________________ Ryan-Froslie J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A.