This case was heard in the Court of King’s Bench of New Brunswick, Trial Division.
This is an action for the alleged migration of petroleum hydrocarbon contamination from one property to another.
In 2011 and 2016 Alpha Electric (1987) Ltd. (“Alpha”), discovered PHC contamination on its property in Moncton. Alpha claimed the contamination required a costly fix, including the removal and replacement of the impacted soil, along with costs associated with testing and monitoring.
Alpha alleged that the contamination originated from the neighboring property owned by the defendant, Cleve Eugene Roberts, who operates an auto repair business on the premises.
Alpha pursued claims against Roberts on the grounds of negligence, nuisance, and strict liability. Their claims are based on the rule that one's non-natural use of land, which leads to another's land being damaged by dangerous things emanating from it, is strictly liable, as per Rylands v Fletcher. In its negligence claim, Alpha argued that Roberts failed to take steps to prevent ongoing contamination after being notified. In the nuisance claim, Alpha asserted that Roberts should be liable for the acts of his tenant, claiming that the contamination migrated with Roberts' knowledge and approval and as such, strict liability claim applied.
Roberts argued that the contamination could have resulted from the plaintiff’s activities, previous owners of Alpha's property, or other surrounding properties, as both properties were formerly used by the Canadian armed forces. Roberts also pointed out the existence of underground storage tanks on Alpha's property and surrounding areas as possible sources of contamination.
The court found that both parties had conducted minimal environmental testing and could not definitively fault Roberts. While the court acknowledged that Roberts' property was one of the most likely sources of contamination, Alpha failed to prove on the balance of probabilities that it was the actual source. Consequently, Alpha's claims in negligence, nuisance, and strict liability were dismissed. Additionally, the court determined that any claims arising from the 2011 contamination were statute-barred under the Limitation of Actions Act. The action was dismissed, and Roberts was awarded costs of $3,225 plus allowable disbursements.
View the Decision on CanLII: 2023 NBKB 43 (CanLII) | Alpha Electric (1987) Ltd. v. Cleve Eugene Roberts | CanLII
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